90. As noted by the Tribunal in the Interim Decision, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right (section 40B (1)(a), (b) HRA).
91. As detailed above, even if not included implicitly in the factors listed in s 8(3) of the Discrimination Act, ACT Health’s actions in discharging its obligations as a Public Authority can be considered in the question of reasonableness.
92. In the alternative, if not considered in the question of reasonableness, as the Victorian jurisprudence above demonstrate, ACAT has the ability to consider if ACT Health has discharged it obligations under s 40B of the ACT HR Act.
HRA s.40B Public authorities must act consistently with human rights
(1) It is unlawful for a public authority—
(a) to act in a way that is incompatible with a human right; or
(b) in making a decision, to fail to give proper consideration to a relevant human right.
(2) Subsection (1) does not apply if the act is done or decision made under a law in force in the Territory and—
(a) the law expressly requires the act to be done or decision made in a particular way and that way is inconsistent with a human right; or
(b) the law cannot be interpreted in a way that is consistent with a human right.
93. These obligations are twofold, encompassing a procedural obligation to take into account relevant human rights and a substantive obligation regarding the agency’s actions.
94. In relation to the procedural obligation, the Commissioner submits that this should be evidenced by some documentation to show relevant human rights are taken into account when a decision is made. For example, some Public Authorities note relevant human rights considerations as part of their documented policies and procedures.  In Patrick’s Case, Justice Bell of the Victorian Supreme Court suggested that obligation to give proper consideration to any relevant human right requires a public authority to consider the impact of its decision on the rights of affected individuals in ‘a practical and common-sense manner.’ However, Emerton J in Castles v Secretary to the Department of Justice suggested this need not be an overly legal or detailed analysis
‘Proper consideration need not involve formally identifying the ‘correct’ rights or explaining their content by reference to legal principles or jurisprudence. Rather, proper consideration will involve understanding in general terms which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision that is made…
… it will be sufficient in most circumstances that there is some evidence that shows the decision-maker seriously turned his or her mind to the possible impact of the decision on a person’s human rights and the implications thereof for the affected person, and that the countervailing interests or obligations were identified.’
95. A Public Authority will generally not be liable where it can show it has limited a right in a reasonable and proportionate way under s 28 of the HR Act. Chan recently observed, based on case law in the United Kingdom, that it is “widely assumed” that the “state should always bear the burden of proving that a prima face limitation of rights passes all stages of the proportionality enquiry”.
‘The proper relationship between the state and individual in the post-HRA era calls for placing the burden squarely on the state to justify any prima facie infringement of rights.’
96. Support for this proposition is found in the recent decision of the UK Supreme Court in Aguilar Quila v Secretary of State for Home Department.
‘The burden is upon the Secretary of State to establish that the interference with the rights of the applicants under article 8… was justified under paragraph 2 of the article’
97. Victorian jurisprudence confirms that the onus rests on the respondent to demonstrate this, and that onus should be discharged by reference to cogent and persuasive evidence.
98. Where a Public Authority’s limitation of a right is not proportionate, s 40B(2)(a) provides a defence where a public authority could not have acted differently or made a different decision because it was expressly required under another law to act that way. The second exception set out in s.40B(2)(b) relates to circumstances where a law is incapable of being interpreted in a human rights consistent manner. Under s.30 of the HRA, as far as possible, a human rights consistent interpretation must be adopted for all ACT laws unless the law is clearly intended to operate in a way that is inconsistent with human rights. If a legislative provision could be interpreted in two different ways that both achieved the purpose of the law, the interpretation that is most human rights consistent must be adopted. However, when it is clear that the law in question was intended to operate in a human rights inconsistent manner, the public authority is not bound by s.40B(1).
99. Neither of these absolute defences appear to apply in this matter.