Page 389 - Week 02 - Tuesday, 4 March 2008
I am satisfied with the list of public authorities outlined in this bill. Most notably, it is appropriate that the Legislative Assembly and the courts are expressly excluded from the definition of a public authority. The Legislative Assembly, the parliament and the courts—the judiciary—must retain some supremacy and the ability to exercise authority. Of course, the Assembly and the courts should execute their duties in accordance with the standards expected of them, but these institutions must also have the authority to undertake decisions beyond the scope of this legislation.
I also appreciate that this bill recognises that there will be times when human rights may be limited. This is recognised in both new section 28 (2) and new section 40B (2), which provides that the duty of a public authority to act in accordance with human rights requirements does not apply if the authority is acting under a law, either territory or commonwealth, that expressly requires the act to be done or decision made in a particular way that is inconsistent with a human right.
There will be times when other laws supersede the rights that this bill and the original act enshrine. This is appropriate, and public authorities must have the ability to adhere to such legislation without worrying what the potential repercussions of their decisions will be. I am comfortable that this legislation considers this and recognises that there may be times when other requirements dictate that a public authority is not able to act consistently with human rights. It is appropriate that this consideration notes that this exemption can include commonwealth laws.
I had some lengthy discussion with my advisers in relation to the matter of remedies. I have been persuaded to the view that damages are not appropriate. I would contend that it is more appropriate, for example, that a breach of the act could lead to the setting aside of the administrative decision or a public notification of a breach. We must be very cautious about turning the ACT into a choice venue for litigation. I believe that not making the remedy of damages available for this sort of breach avoids this issue.
To give an example, after I left my last place of employment in 2003 there was a fairly sustained campaign to drive people out of that office using a range of methods. One of them, an Argentinean lawyer, was subjected to an enormous amount of racial vilification and intimidation. He went to a former Chief Minister, Rosemary Follett, who was with the Human Rights Commission. I was impressed by the level of support they were able to extend to this person who was a resident here, acting lawfully, and whose rights were being substantially violated.
I raised the issue with my advisers. It is the fact that there are no damages available through this mechanism. That individual in fact received a $15,000 payout because those perpetrating the racial vilification decided that it was more prudent to pay up and hope that the individual would go quietly. But I did raise the issue of what happens in those circumstances. Where do those people go for protection? Certainly my advisers indicated that there are commonwealth remedies in terms of racial discrimination. There were other examples discussed.
I am persuaded that there are heads of law that will cater for people who have legitimate causes to pursue damages. It may be through trade practices, it may be