Introduction

The Human Rights Act 2004 came into force in the Australian Capital Territory on 1 July 2004 and requires that, as far as possible, ACT laws must be interpreted and applied in a way that is compatible with the human rights guaranteed under the Act. This site provides guidance and advice to the University community on the application of the Act in the University environment but should be used as a guide only. If you require specific legal advice relating to your work at the University and the application of the Act please contact the Legal Office. If you require advice on a personal matter relating to the Act please contact your own solicitor.

In 2008 the Act was amended to create a positive duty on public authorities to comply with human rights. This provision came into force on I January 2009. The University of Canberra is a public authority for the purposes of the Act.

Under section 40B of the Act, public authorities are required to:

• act consistently with human rights; and
• when making decisions, give proper consideration to relevant human rights.

Individuals have a direct right of action to apply to the Supreme Court of the ACT to seek a remedy for an alleged contravention of this obligation.

What are human rights?

The human rights protected under the Human Rights Act 2004 are detailed in Part 3 of the Act and are largely drawn from the International Covenant on Civil and Political Rights. While comprising a strong foundation of rights to protect the ACT community, many of the rights are such that they are not relevant to, or would form part of, the legislation, policies and procedures of the University. (For example: Right to life; Protection from torture; Right to liberty and security of person; Children in the criminal process; Fair trial; Rights in criminal proceedings; Freedom from forced work etc).

Some rights apply directly within the University context and it is important that they are observed when developing University legislation, policies and procedures and when implementing and applying the University’s legislation, policies and procedures. These rights include:

• Right to equality before the law free from distinction and discrimination;
• Right not to be subjected to medical or scientific experimentation or treatment without their free consent;
• Right to privacy and reputation;
• Right to freedom of thought, conscience, religion and belief;
• Right to peaceful assembly and freedom of association;
• Right to freedom of expression;
• Right to take part in public life;
• Right of minorities to enjoy their culture, practice their religion and use their language.

In applying a right it is important to realise that the context is important. The following examples are designed to illustrate the types of limitations or qualifications which may apply to the application of a right:

• A minority has a right to use their language (section 27). Such a right would ensure the University did not apply restrictions on the use of a language by students on campus but it would not extend to allowing students to submit assignments in that language or use it as their only language of communication with staff or fellow students during a seminar. Such a right does not prohibit the University from having an English-language condition for entry.
• Everyone has the right to freedom of expression (section 16(2)) but that right may be limited by laws, such as those relating to criminal damage (graffiti) or defamation.
• Everyone has the right to move freely within the ACT (section 13) but the University may legitimately have rules which restrict, control or manage access to particular parts of the campus (eg. laboratories, offices) or have disciplinary outcomes which may exclude a person from all or part of the campus.

There may also be other legal instruments which apply obligations on the University similar to the rights applying under the Human Rights Act. Examples include:

• The Privacy Act 1988 (Cth) places obligations on the University’s collection, use and dissemination of the personal information of staff and students and thus extends the right to privacy embodied in section 12(a) of the Human Rights Act;
• External authorities, including the ARC and NHMRC, apply strict conditions relating to scientific research involving humans (and animals), thus implementing the right embodied in section 10(2) of the Human Rights Act relating to medical or scientific research and treatment.
• Professional standards applying to clinical practitioners, researchers and teachers in the medical and allied health professions impose conditions relating to consent which also underpin the requirements of section 10(2) of the Human Rights Act.

Although some of the rights do not, or are unlikely to, apply directly to the University in the form embodied in the Act, it is possible to draw values or principles from many of these which should apply to the development and application of University legislation, policies and procedures. This applies particularly to procedures related to disciplinary or grievance processes, and include:

• Due process;
• Natural justice;
• Fair procedures;
• Processes to be held in timely manner.

Our obligations

The ACT Human Rights Commission has categorised the obligations which the Act imposes on public authorities, including the University, as:

• Substantive obligation: Public authorities must act consistently with human rights. ‘Act’ means positive conduct, a failure to act or a proposal to act. If an action is found by the courts to be incompatible with a human right, it will be unlawful; and
• Procedural obligation: Section 40B(1)(b) of the Act requires public authorities to give proper consideration to human rights when making decisions. A failure to do so will amount to unlawfulness. This is a procedural obligation in the sense that it directs public authorities to make decisions in a particular manner. Public authorities must actively and properly incorporate human rights into decision-making processes where relevant. [1]

The first obligation requires that the University act in a manner which is in accord with the requirements of the Act, that is, observes the human rights detailed in Part 3 of the Act. This obligation focuses on the implementation and impact of decisions; the actions of officers. 

The second obligation requires that the University, in developing legislation, policies and procedures, considers relevant human rights and, where appropriate, ensures that the legislation, policies and procedures takes account of those relevant human rights.

Section 40(1)(b) does not mean that decisions cannot be made that are inconsistent with a human right. Rather, it requires only that, in making decisions, proper consideration must be given to any relevant human right. Thus, as a matter of law, if there is no human right relevant to a particular proposed decision, there will not be a breach of the Act if there is no consideration of human rights prior to the making of that decision. However, as a matter of practicality, a decision-maker may need to consider whether or not any human rights are relevant before they can make a decision if the Act applies.

As noted in the previous paragraph, it is possible to make a decision which is inconsistent with a human right. The Checklist for Human Rights Compliance reproduced in Appendix 1, which is an extract from a publication of the ACT Human Rights Commission, is a very useful guide to the steps which should be followed prior to making a decision which may limit a relevant human right and the criteria which should be considered prior to making such a decision. 

The obligation in section 40B(1) has two exceptions to the duty to comply with human rights. The first is where a public authority is required to act in a certain way by ACT or Commonwealth legislation, even if it does not comply with the Human Rights Act, and the second is where it is not possible to interpret legislation in a way which is consistent with human rights. (Section 30 requires that, when there are different interpretations possible, the most compliant with the Act be chosen. This requirement applies only to ACT legislation.) 

What is our implementation strategy in relation to the Act?

Principal instruments

Most decisions of the University are made within the framework of the University’s Act, statutes, rules or policies and must take account of the decision-making parameters and procedures outlined in these instruments. It is therefore important that during the development and drafting processes for these principal instruments that relevant human rights be taken into account. In most cases the principal instruments of the University do not relate to any relevant human rights and it is a matter of ensuring the step of considering whether there are any relevant rights is incorporated in development and drafting procedures. In some cases it may be appropriate to explicitly include reference to a human right in an instrument.

These obligations rest with both the development officers and the approving authority.

To indicate compliance with this obligation, all new principal instruments include the statement:

In making this Statute the University had regard to the provisions of section 40B(1)(b) of the Human Rights Act 2004 (ACT).

in the end notes of the instrument. The statement is revised as appropriate to reflect the specific type of instrument (eg. statute, rule, policy).

Training and awareness

The University community is made aware of its responsibilities and obligations through this site and regular communications to the University community.

External service providers

The definition of a public authority in the Human Rights Act is far-reaching and extends to private entities performing public functions on behalf of the University. This obligation is unlikely to be relevant for companies providing goods to the University but would certainly cover entities performing functions, on behalf of the University, which are normally the responsibility of the University, such as facilities, maintenance, security and processing of information and an obligation to comply with section 40B of the Act may be built into contracts with external service providers.

Research

Research projects in the University must already meet stringent ethical requirements. The University ensures that internal conditions relating to research approvals include a provision requiring compliance with the Human Rights Act.

Rights framework to manage complaints

The ACT Human Rights Commission recommends that public authorities identify a framework for the receipt and management of complaints relating to human rights. The Director, Audit and Governance is responsible for receiving and managing complaints or inquiries and for providing advice on the Act.

Actions and remedies under the Human Rights Act 

A person who alleges that a public authority has breached a human right can apply to the Supreme Court of the ACT for relief. Such action must be brought within 12 months of the alleged unlawful conduct but the Supreme Court can extend that period if it considers it is fair to do so in the circumstances. Only the “victim” of alleged conduct may bring a proceedings under the Act.

The Supreme Court may grant relief where a public authority has been found to have breached the Act. This may take the form of an order to cease specified conduct or reconsider a decision. The Court cannot award damages under the Act, although a claimant may seek damages under other legislation or the common law.

Appendix 1:

CHECKLIST FOR HUMAN RIGHTS COMPLIANCE [2]

This checklist may assist in ensuring decisions and actions are human rights compliant. If appropriate, you should document these considerations on the relevant file.

Step 1: What is your decision or action?

1.1 What is the objective of the decision or action?

Think about what the decision or action seeks to achieve. Why is the decision or action being taken? What is its purpose?

1.2 Who will be affected by the decision or action?

Look at the objective you are trying to achieve and think about the individuals or groups of people that are most likely to be affected by the decision or action.

1.3 Has there been consultation with groups or individuals likely to be affected?

It may be appropriate to consult with those that are likely to be affected by the decision or action. Any consultation should be documented on the file.

Step 2: Does the decision or action engage human rights?

2.1 Look at the list of human rights in this factsheet (or in Part 3 of the HRA). Does your decision or action fall into any of the areas covered by the rights in the HRA?

If you decide that there are no rights in the HRA engaged, there is no need to continue on this checklist. However, if you have doubts, it may be necessary to obtain legal advice.

2.2 Will the decision or action limit any of the human rights it engages?

If it does limit rights, you should keep a record on file of the details of how the human right is interfered with or limited.

Remember that failure to take action may be a breach of a right if there is a positive obligation on the public authority to take action to preserve a right.

Step 3: Is the limitation on rights reasonable?

For most of the rights in the HRA, the fact that a decision or action restricts the right does not necessarily mean that it will be incompatible with the HRA. If a restriction has a legitimate aim (such as public safety) and does not go further than absolutely necessary to protect this aim, then it is likely that it will be compatible the HRA.

3.1 Is there a legal basis for the restriction?

Any restriction on human rights must have a legal basis. It must be set out in legislation or subordinate legislation.

3.2 Does the restriction have a legitimate aim?

If you are restricting rights, you need to identify a legitimate aim for doing this. This might include public safety, protecting public order, or protecting the rights or freedoms of others. It is good practice to keep a record on file of the reasoning process behind your decision about limitation on rights.

3.3 Is the restriction necessary in a democratic society?

For a restriction to be necessary in a democratic society there must be a rational connection between the legitimate aim to be achieved and the decision or action that restricts a person’s rights. That is, the aim might be legitimate but unless the decision or action will actually achieve that aim, the restriction on rights is unlikely to be a reasonable one.

3.4 Is your response proportionate, or have you tipped the scales too far?

A decision or action must be the least restrictive possible to achieve its objective.  Look at the objective that you identified at 1.1 of this flowchart and see if there are any less restrictive ways to achieve that goal. For example, a least restrictive way might be one that is tailored to individual circumstances rather than a blanket policy that applies to everyone.

 

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