This section provides a flowchart and checklist to help public authorities apply the HR Act in their decision-making.
Figure 1: Summary of the Public Authority Obligation
Figure 2: Example of Assessing Compliance
Example: this example considers whether courts not paying for interpreters for women who are victims of domestic violence in a hearing application for a civil domestic violence order is compatible with human rights.
Step 1 : The decision
Who will be affected by the decision?/What is the objective of the decision?
The people who would be affected by a decision to grant bail under the Bail Act 1992 (ACT) would be:
– the defendant
– any victims
– witnesses that may be involved
– family, including children of both parties
– the general community.
Step 2: Identify Relevant Rights
What rights could be affected by the decision? Identify the rights.
Consider all the rights contained in the HR Act and consider whether the decision could affect any of those rights. It is possible that a number of rights will be relevant.
Consider who could claim protection of those rights. It is possible that two people may claim the same right, or that different rights might seem to conflict.
Step 3: Identify impacts
Does the decision limit, restrict or interfere with a person’s human rights?
This step requires you to consider the impact of your decision. It is important to note both whether the decision will protect or restrict rights.
Look at who might claim a right using your rights to step 2 above. It is possible that one person’s right will be restricted in order to protect another person’s rights, or the rights of the wider community.
If the decision does affect one or more human rights, consider whether it protects, limits, interferes with or restricts a human right.
Example: the decision whether to grant a defendant bail impacts on a number of rights of both the defendant and a victim. Not granting bail impacts on the defendant’s right to liberty (s 18), but it may also impact on a victim or witness’s right to security of person (s 18). Refusing bail may impact on a defendant’s right to the protection of the family and children (s 11) if he/she is the primary carer of children. If there is a risk of violence, a decision to grant bail may also affect a victim’s right to life (s 9).
Step 4: Consider the limitations
Are the limitations or restrictions reasonable and demonstrably justied under s.28 of the Act?
If the decision limits, restricts or interferes with human rights you must ask whether the limitation is reasonable and demonstrably justied under the HR Act.