‘No Rights Without Remedy’
PRESENTATION SPEECH for the Human Rights (Complaints) Legislation Amendment Bill 2023, Legislative Assembly for the ACT By Tara Cheyne MLA (photo), Minister for Human Rights ACT, 20 September 2023
Madam Speaker, Today I am pleased to present the Human Rights (Complaints) Legislation Amendment Bill 2023.
This represents the first stage of the Government’s response to the Standing Committee on Justice and Community Safety report on its inquiry into Petition 32-21 on No Rights Without Remedy.
The No Rights Without Remedy petition, signed by 518 people and tabled in the Assembly on 23 November 2021, raised concerns about a lack of an accessible mechanism for ACT residents to enforce their rights under the Human Rights Act.
The Bill will establish a new pathway for community members to make complaints about alleged breaches of human rights obligations by public authorities to the Human Rights Commission.
Section 40B is a critical element of the ACT Human Rights Act. It requires that public authorities act consistently with human rights and give proper consideration to relevant human rights when making a decision. This is also known as a positive duty, and it applies to all public authorities including ACT government agencies, Ministers, public employees, and organisations carrying out functions of the Territory.
The Human Rights Act was the first, and remains the only, human rights statute in Australia to include a stand-alone cause of action for a breach of human rights obligations by a public authority. Section 40C of the Act allows these matters to be brought to the Supreme Court without needing any other cause of action.
However, while the Supreme Court is an important jurisdiction for the determination of human rights claims, I acknowledge that this pathway is not easily accessible to many Canberrans due to the potential costs and formality of this jurisdiction.
The Bill I am presenting today will expand the avenues available for seeking redress for a breach of human rights by enabling community members who believe a public authority has acted in contravention of their s 40B obligations to make a complaint to the Human Rights Commission.
The Commission plays an important role in promoting and upholding human rights in the ACT through community education, advice to government, and their significant complaints-handling jurisdiction.
The Commission is well placed to take on this new human rights complaints jurisdiction. In recent years, new areas have been added to the Commission’s complaints jurisdiction which has strengthened the capacity of the Commission to resolve concerns, improve services and support vulnerable people in our community.
The Bill will generally require complainants to attempt to work through their complaint with the relevant public authority before escalating to the Human Rights Commission. If the person does not receive a response to the complaint within 45 calendar days or receives a response that they consider to be inadequate, they can then make a complaint to the Human Rights Commission.
In exceptional circumstances, or where the person makes a concurrent complaint under the Human Rights Commission Act in relation to the same act, circumstances or subject matter, the Commission will be able to waive this requirement.
As it does for other types of complaints, the Commission will be able to offer confidential conciliation to attempt to resolve the complaint. The types of remedies that result from conciliations at the Commission can include staff training, apologies and changes in policies and procedures.
The existing complaints-handling powers in the Human Rights Commission Act will apply to human rights complaints such as the power to compel information that will assist in the consideration of a complaint.
If a complaint cannot be successfully conciliated, the Commission will issue a final report to close the complaint. The report may recommend any action the Commission considers the public authority complained about should take to ensure their acts and decisions are compatible with human rights.
This means that rather than determining whether a breach of human rights has occurred, the Commission’s recommendations will focus on assisting agencies to improve human rights compliance in future and may make recommendations to that end.
Recommendations made by the Commission must state the reasonable time within which the recommended action should be taken. Section 85 of the Human Rights Commission Act requires entities to tell the Commission in writing about the action that has been taken in relation to a recommendation. In this way, entities are accountable for considering recommendations made by the Commission and taking action.
Community members who make a human rights complaint to the Commission will not be fundamentally precluded from initiating a proceeding in the Supreme Court if resolution cannot be reached through conciliation. The Bill also amends section 40C to make it clear that the Supreme Court’s discretion to permit the commencement of proceedings after the current one-year limitation period has expired includes circumstances when a person has made a complaint to the Human Rights Commission about the act and it is unreasonable in the circumstances for the time limit to apply to the proceeding.
This amendment is intended to address circumstances where a person has sought, in good faith, to resolve their concerns by first making a complaint to the Commission, and the limitation period for commencing Supreme Court proceedings has expired due to their good faith participation in the process.
The No Rights Without Remedy petition also recommended an ACAT pathway for human rights complaints that cannot be successfully conciliated.
In response to the Standing Committee on Justice and Community Safety inquiry report, the Government agreed in principle to this proposal. We acknowledge that there will likely be further benefits to introducing a pathway to ACAT, however there are a range of complexities with doing so which require further consideration, such as the interaction with the Supreme Court jurisdiction for human rights matters, the scope of remedies that would be available to litigants, overlap with the Tribunal’s review jurisdictions, and the potential resourcing implications for the Tribunal, Directorates and the Commission.
In response to the call from the community to immediately expand the dispute resolution options available to the community for human rights complaints, the focus of Government in this Bill is the introduction of the pathway through the accessible pathway through the Human Rights Commission.
Should the Assembly pass this Bill, Government will look forward to seeing how the new process is working, the benefits we see for the community and the positive impacts it has on the operations of the Government. These matters will be important to supporting the Government to consider the next stage of proposed reforms to establishment of a pathway to the ACAT for breaches of human rights.
In addition to establishing the new human rights complaints mechanism, this Bill also makes amendments to the Human Rights Act to expand the role of the Legislative Assembly Scrutiny committee; to specify the proper respondent to human rights proceedings in the Supreme Court: to require notice to be given to the Human Rights Commission in all Supreme Court matters involving application of the Act; and remove gendered language in line with modern legislative drafting practice.
These are positive, practical amendments to the Act.
I would like to thank all the members of our community that contributed to the discussion which led to the development of these reforms. I’d like to especially thank Dr Paterson as the sponsor of the petition and her work on the committee that inquired into the petition, which has been invaluable to support the development. I’d also like to thank Civil Liberties Australia for their detailed engagement with this issue, in particular Chris Stamford (photo).
I would like to pay tribute to Sophie Trevitt, who was the ACT Convenor for Australian Lawyers for Human Rights and a principal petitioner on the No Rights Without Remedy petition. We were all shocked and saddened to hear of Sophie’s passing in July (2023, aged 32 – Ed.). Sophie was a passionate and committed advocate for social justice and the human rights of all Canberrans. She made a difference to so many lives, and through her leadership of the petition leaves another important legacy in ensuring an accessible remedy for breaches of human rights in the ACT.
I am pleased to present this Bill, which reflects the Government’s ongoing commitment to strengthening our culture of human rights in the ACT and will make a positive impact on our community.
I commend the Bill to the Assembly.