The ACT Human Rights Act is a statutory instrument which can be amended easily by a majority of the Legislative Assembly. In this sense it differs from constitutional bills of rights, such as that of the United States, and follows the pattern established by New Zealand and the United Kingdom. The ACT law is built on what has been called a ‘dialogue’ approach in that it promotes a discussion about human rights between the legislature, the executive and the judiciary.

The ACT legislation covers a catalogue of rights derived from the International Covenant on Civil and Political Rights. This includes: the rights to life and to be free from slavery; rights to freedom of thought, conscience, religion and speech; and due process rights. The rights are implemented through a series of mechanisms:

• an obligation to interpret Territory laws to be consistent as far as possible with human rights;

• Supreme Court jurisdiction to issue a declaration of incompatibility in cases where legislation cannot be interpreted to be consistent with human rights;

• a duty on the Attorney-General to present a written statement on the compatibility of each bill presented to the Legislative Assembly;

• pre-enactment scrutiny of all legislation for consistency with human rights by the relevant Standing Committee of the Legislative Assembly;

• the creation of the office of Human Rights Commissioner to review laws to ensure compliance with the Human Rights Act and to advise the Attorney-General on the operation of the Act; and

• a duty for government departments to report on their implementation of the Human Rights Act.

The use of the Human Rights Act in ACT courts and tribunals has been cautious and sporadic. This is perhaps a result of the judiciary’s and the profession’s unfamiliarity with international human rights law and standards. The subject of decisions under the Act has included a range of issues, from criminal law procedural and evidentiary issues to defamation and public housing.

The Human Rights Act has also stimulated dialogue on human rights issues within the Legislative Assembly. The Stanhope government regularly cites the Act not only in relation to its own bills and policies, but also to criticise the federal government on issues such as refugees, the abolition of the Aboriginal and Torres Strait Islander Commission, and anti-terrorism legislation. Although Liberal skepticism towards the Human Rights Act remains high, its members are increasingly relying on the Act to attack the government in areas such as treatment of public housing tenants and reduction of access to administrative review.

The greatest impact the Human Rights Act has had so far seems to be on generating government and legislative policy in the ACT. A Human Rights Unit has been established in the Department of Justice and Community Safety to monitor and support the implementation of the Human Rights Act. Human rights scrutiny has led to the modification of a range of proposed government policies in areas including sentencing laws, the banning of car window washers at traffic lights, the use of children for tobacco test purchases, and the wearing of headscarves in ACT schools.

While the ACT Human Rights Act has some limitations, if it was adopted as a model for a national bill of rights, it would be likely to increase the protection of human rights. This is particularly true in the current political climate, where there has been little challenge to the erosion of civil liberties in the name of broader community interests.

It is notable that Justice
McHugh regarded the
absence of an Australian
bill of rights as critical to his
decision.

One significant case that might have been decided differently if there were a national version of the Human Rights Act is Al- Kateb v Godwin (2004) 208 ALR 124. The Migration Act 1958 (Cth) states that a noncitizen unlawfully in Australia who asks to be removed from Australia must be removed ‘as soon as reasonably practicable’. It also requires the continued detention of such a person ‘until’ they are removed. The High Court had to determine whether or not, under the Migration Act, the Minister for Immigration could detain a stateless individual until another country was prepared to accept him. Members of the High Court conceded that the likelihood of Mr Al-Kateb’s acceptance by another country was remote and that his detention in Australia would be indefinite. The majority of the Court found the Migration Act was unambiguous in its application to Mr Al-Kateb and that he could be detained indefinitely. In the words of Justice McHugh, the outcome for Mr Al-Kateb was ‘tragic’, but the provisions of the Migration Act clearly required it.

The High Court decided in this case that it was impermissible to consider Australia’s international human rights obligations in interpreting the Australian Constitution. If the Human Rights Act had applied, the relevant Migration Act provisions would have been interpreted so as to be more consistent with the right to liberty and non-arbitrary detention. It is notable that Justice McHugh regarded the absence of an Australian bill of rights as critical to his decision.

One important effect of the ACT experiment has been to encourage other Australian jurisdictions to consider the introduction of bills of rights. The ACT model was significant in the development of the Victorian Charter of Human Rights and Responsibilities 2006. There has also been some interest in the ACT legislation in New South Wales, Tasmania and Western Australia.

Given the states’ objections to an Australian bill of rights over the last century, there is some irony in the fact that the Australian States and Territories now are leading the Commonwealth in this area.

A list of cases where the ACT Human Rights Act has been invoked is avaliable at www.anu.edu.au/acthra.