Page 2461 - Week 08 - Tuesday, 22 August 2006
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development of the human rights culture in the ACT. The 12-month review sheds light on these issues.
The review canvasses a range of issues related to the fundamental provisions governing the operation of the Human Rights Act. These include the obligation of public authorities to comply with human rights and the nature of the human rights dialogue in this place. The submissions to the review indicate that there is general agreement as to the nature of the existing obligations to comply with human rights arising out of the general requirement to interpret all territory laws, as far as possible, to be consistent with human rights.
It was always envisaged that the interpretive provision within the Human Rights Act would have a direct effect on the conduct of government officials through its effect on legislation. They would be required to consider human rights in their decision-making processes and would be required to exercise statutory discretions consistently with human rights unless the legislation clearly authorised action that was inconsistent with those rights.
However, since the passage of the bill there has been considerable conjecture within the legal community about the precise nature of the human rights obligation, and this is reflected in the submission to this review. As the review suggests, there is a case for introducing an express duty on government authorities to comply with human rights and for a direct right of action to the courts.
Put simply, much of the debate surrounding the operation of the Human Rights Act and some of the obstacles to the growth of a human rights culture within government and the wider community can be resolved through a direct duty to comply with human rights. For this reason, the review recommends that the government investigate the inclusion of a direct duty to comply with human rights.
As I have already noted, the other key issue raised in the review is the quality of the dialogue between the government and the Assembly on human rights issues. A key issue addressed by the review is the depth of analysis provided in explanatory statements issued by agencies sponsoring bills before the Assembly and the compatibility statements I am required to issue under the Human Rights Act.
The compatibility statement serves a significant role in the dialogue model. It reflects the internal dialogue among the various component arms of the executive and it is this internal process that has been most dramatically affected by the Human Rights Act. It also represents the public face of that dialogue to the Assembly and to the community.
There has been criticism that insufficient information is provided through this compatibility statement process. Whilst there may not be a case for legislative change, the review does recommend that agencies make greater use of the explanatory statements to establish compatibility. Where a bill raises significant human rights issues, I will undertake to provide a summary of reasons with the compatibility statement, focusing on the human rights principles and drawing on the case established by the sponsoring agency. For most bills, agencies could be encouraged to make better use of exposure drafts to make the case for compatibility.
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