The ACT Human Rights Act, recently strengthened with a right to Supreme Court action, has been little used since becoming law on 1 July 2004. Is lack of awareness and understanding among magistrates, judges and lawyers the reason?
Judges wait for the rights time to act
29 Apr 08:
The legal industry in the Australian Capital Territory is still wrestling with potential for application and interpretation of the Human Rights Act 2004 (ACT)…even as the latest provisions of the amended act start to operate. It appears that the judiciary is taking a softly-softly approach in dealing with the interpretive aspect of the HR, because of the one word: ‘possible’1 .
The HRA sets out that the laws should be interpreted sympathetically with human rights considerations:
“[s]o far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.”
Prima facie, this asks the judiciary to apply and interpret ACT law compatible with the human rights as set out in the HRA. The judiciary has had the opportunity to apply this aspect of the HRA provisions – and it seems has considered doing so – but not at completely as it could 2. Commentators believe they have not done so because of a misunderstanding of the potential application of the HRA Act.
Barrister Chris Erskine, speaking at a recent ACT Law Society workshop on the HRA, contended that, following the House of Lords decision in Ghaidan v Gadin-Mendoza 3 (’Ghaidan’), the ACT Courts are yet to fully appreciate the potential far-reaching impact of the HRA. Our courts are yet to apply the reasoning of this decision, even though the ACT legislature have given them the power to do so, he believed.
Mr Erskine said that Ghaidan indicates that the UK Human Rights Act, with similar provisions to the HRA, has not yet been fully utilised in British judicial circles. As virtually identical provisions apply in the ACT, pursuant to Ghaidan the local judiciary could extend their interpretation of existing laws to support our enacted human rights. There are provisos: the judiciary cannot go against the grain of the original legislation; the interpretation must not be explicitly excluded from re-interpretation; and a re-interpretation is always possible. Mr Erskine suggested that this proposition extended to subordinate legislation as well (which would open up considerably wider options to the ACT judiciary, and to claimants/litigants) .
The ACT’s HRA has been amended (Human Rights Amendment Bill 2007) recently to incorporate further obligations on government agencies. Administrative arms of the ACT Government now must not act in a way that contravenes a human right.
As the amendments are silent as to ‘proposed’ acts, it is not yet clear that they will apply to situation where a human right might potentially be breached (such as when tree felling interferes with a person’s right to enjoyment of the environment, either in view or quietude terms).
Speaking on this point, Gabrielle McKinnon of the ACT Human Rights Act Research Project and ANU (and convenor of the ACT Human Rights legal network), asked: ‘Does an aggrieved party have to have suffered a breach of a human right in order to bring an application?’ It remains unknown whether the act has to have happened, or whether it can be in prospect. Under the new amendments, a person can apply for a determination of his/her rights…but there is no allowance for reparation (that is, no damages may be sought if a breach is proven).
So where are we now? It appears that the judiciary is continuing to consider competing issues in relation to the HRA and related legislation within the ACT. To date, however, there has been no major re-interpretation of legislation under the aegis the HRA. Perhaps this has been because of the cases that have arisen to date: the ACT is a tiny jurisdiction, and the HRA has been operative since 1 July 2004 only.
It may be we will have to endure a long wait-and-see period before the ACT judiciary shows how astutely it can adapt the progressive potential of the HRA to legal life in the national capital of Australia.
– Dean Prail, CLA’s media spokesperson, and manager of an ACT law firm
29 April 2008
1. Human Rights Act 2004 (ACT) section 30.
2. R v Griffin  ACTCA 6 (5 April 2007) and Hausmann v Shute  ACTCA 5 (5 April 2007)
3.  UKHL 30