Victim and Witness Rights

Part 2: About the Human Rights Act 2004

Why do I need to know about the Human Rights Act?

The Human Rights Act places two obligations on ACT Public Authorities, which includes ACT Government Agencies, and those doing outsourced Government work.

They must:

  • Act consistently with human rights; and
  • Consider human rights in decision making:
    Section 40B(1)(b) of the HR Act requires public authorities to give proper consideration to human rights when making decisions and a failure to do so will be unlawful. Public authorities must actively and properly incorporate human rights into decision-making processes where relevant, and should be able to provide documentary evidence of having done so.

Some example of organisations that are public authorities and who would therefore have duties under the HR Act:



What are Human Rights?

Human rights are inherent to all of us as human beings, regardless of who we are, where we live or any other characteristic. They are intended to provide an interrelated safety net of protections that ensure we are able to reach our potential and be treated fairly by our Government. The human rights protected in the ACT Human Rights Act are drawn from internationally agreed documents about what rights must be protected by Governments.

Human Rights in the ACT
The human rights protected in the ACT HR Act are:

– Recognition and equality before the law (s.8)
– Right to Life (s.9)
– Right to Protection from Torture and cruel, inhuman or degrading treatment (s.10)
– Right to Protection of the Family and children (s.11)
– Right to Privacy and Reputation (s.12)
– Right to Freedom of Movement (s.13)
– Right to Freedom of Thought, Conscience, Religion and Belief (s.14)
– Right to Freedom of Association (s.15)
– Right to Freedom of Expression (s.16)
– Right to Take Part in Public Life (s.17)
– Right to Liberty and Security of Person (S. 18)
– Right to Humane Treatment when Deprived of Liberty (s.19)
– Rights of Children in the Criminal Process (s.20)
– Right to Fair Trial (s.21)
– Rights in Criminal Proceedings (s.22)
– Right to Compensation for Wrongful Conviction (s.23)
– Right not to be Tried or Punished more than once (s.24)
– Right against Retrospective Criminal Laws (s.25)
– Freedom from Forced Work (s.26)
– Rights of Minorities (s.27)

Are human rights absolute?
The majority of protected human rights are able to be subject to reasonable and proportionate limitation.

Exceptions in international treaties are generally the right to freedom from torture, slavery and servitude, and the right to recognition before the law.

The human rights of victims of crime may, at times, conflict with those of defendants or other people in a legal context. When this occurs, a human rights analysis should be undertaken to consider whether reasonable limits can be placed on the human rights of either party. This analysis must be adequately documented in order to demonstrate that it has occurred.

Deciding whether a limit is reasonable and proportionate requires a consideration of:

  1. the nature of the right affected
  2. the importance of the purpose of the limitation
  3. the nature and extent of the limitation
  4. the relationship between the limitation and its purpose
  5. any less restrictive means reasonably available to achieve the purpose the limitation seeks to achieve.

If the action or decision is not reasonable and proportionate, it may be unlawful, unless the Public Authority can rely on the defence of having no discretion in law to act in a different way.

Section 40B(2)(a) of the HR Act, provides a defence where a public authority could not have acted differently, or made a different decision because it was required under another Territory or Federal law to act that (non-human rights compliant) way. (s. 40B(2)(a) below)

Interpretation of laws and human rights
Section 30 of the Human Rights Act 2004 says that:

so far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights

So a Court or Tribunal should adopt a “human rights consistent” interpretation within the “purpose” of the statute.

The ACT Supreme Court held, In the Matter of an Application for Bail by Isa Islam [[2010] ACTSC 147 (19 November 2010)], that the ordinary processes of statutory interpretation, including that under section 30 of the HR Act, should be applied when interpreting Territory legislation, with the aim of finding a provision that is both human rights-compatible and consistent with purpose.