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This is a Bill, not an Act. For current law, see the Acts databases.
HUMAN RIGHTS BILL 2003
2003
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Attorney-General)
Human Rights
Bill 2003
Contents
Page
Part 2.1 Annual
Reports (Government Agencies) Act 1995 24
Part
2.2 Discrimination Act
1991 25
Part 2.3 Legislation
Act 2001 25
2003
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Attorney-General)
A Bill for
An Act to respect, protect and promote human rights
1 Human rights are necessary for individuals to live lives of dignity and
value.
2 Respecting, protecting and promoting the rights of individuals improves
the welfare of the whole community.
3 Human rights are set out in this Act so that individuals know what their
rights are.
4 Setting out these human rights also makes it easier for them to be taken
into consideration in the development and interpretation of
legislation.
5 This Act encourages individuals to see themselves, and each other, as
the holders of rights, and as responsible for upholding the human rights of
others.
6 Few rights are absolute. Human rights may be subject only to the
reasonable limits in law that can be demonstrably justified in a free and
democratic society. One individual’s rights may also need to be weighed
against another individual’s rights.
7 Although human rights belong to all individuals, they have special
significance for Indigenous people—the first owners of this land, members
of its most enduring cultures, and individuals for whom the issue of rights
protection has great and continuing importance.
The Legislative Assembly for the Australian Capital Territory therefore
enacts as follows:
This Act is the Human Rights Act 2003.
This Act commences on 1 July 2004.
Note The naming and commencement provisions automatically commence
on the notification day (see Legislation Act, s 75 (1)).
The dictionary at the end of this Act is part of this Act.
Note 1 The dictionary at the end of this
Act defines certain terms used in this Act, and includes references
(signpost definitions) to other
terms defined elsewhere.
For example, the signpost definition
‘human rights—see
section 5.’ means that the term ‘human rights’ is defined in
that section.
Note 2 A definition in the dictionary
(including a signpost definition) applies to the entire Act unless the
definition, or another provision of the Act, provides otherwise or the contrary
intention otherwise appears (see Legislation Act, s 155 and
s 156 (1)).
A note included in this Act is explanatory and is not part of this
Act.
Note See Legislation Act, s 127 (1), (4) and (5) for the legal
status of notes.
In this Act:
human rights means the civil and political rights in part
3.
Only individuals have human rights.
This Act is not exhaustive of the rights an individual may have under
domestic or international law.
Examples of other
rights
1 rights under the Discrimination Act 1991 or another Territory
law
2 rights under the ICCPR not listed in this Act
3 rights under other international conventions
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
Part
3 Civil and political
rights
Note The primary source of these rights is the International
Covenant on Civil and Political Rights.
8 Recognition
and equality before the law
(1) Everyone has the right to recognition as a person before the
law.
(2) Everyone has the right to enjoy his or her human rights without
distinction or discrimination of any kind.
(3) Everyone is equal before the law and is entitled to the equal
protection of the law without discrimination. In particular, everyone has the
right to equal and effective protection against discrimination on any
ground.
Examples of
discrimination
Discrimination because of race, colour, sex, sexual orientation, language,
religion, political or other opinion, national or social origin, property,
birth, disability or other status.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(1) Everyone has the right to life. In particular, no-one may be
arbitrarily deprived of life.
(2) This section applies to a person from the time of birth.
10 Protection
from torture and cruel, inhuman or degrading treatment etc
(1) No-one may be—
(a) tortured; or
(b) treated or punished in a cruel, inhuman or degrading way.
(2) No-one may be subjected to medical or scientific experimentation or
treatment without his or her free consent.
11 Protection
of the family and children
Note Family has a broad meaning (see ICCPR General Comment 19
(39th session, 1990).
(1) The family is the natural and basic group unit of society and is
entitled to be protected by society.
(2) Every child has the right to the protection needed by the child
because of being a child, without distinction or discrimination of any
kind.
Examples of distinction or
discrimination
Distinction or discrimination because of race, colour, sex, sexual
orientation, language, religion, political or other opinion, national or social
origin, property, birth, disability or other status.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
12 Privacy
and reputation
Everyone has the right—
(a) not to have his or her privacy, family, home or correspondence
interfered with unlawfully or arbitrarily; and
(b) not to have his or her reputation unlawfully attacked.
Everyone has the right to move freely within the ACT and to enter and leave
it, and the freedom to choose his or her residence in the ACT.
14 Freedom
of thought, conscience, religion and belief
(1) Everyone has the right to freedom of thought, conscience and religion.
This right includes—
(a) the freedom to have or to adopt a religion or belief of his or her
choice; and
(b) the freedom to demonstrate his or her religion or belief in worship,
observance, practice and teaching, either individually or as part of a community
and whether in public or private.
(2) No-one may be coerced in a way that would limit his or her freedom to
have or adopt a religion or belief in worship, observance, practice or
teaching.
15 Peaceful
assembly and freedom of association
(1) Everyone has the right of peaceful assembly.
(2) Everyone has the right to freedom of association.
(1) Everyone has the right to hold opinions without
interference.
(2) Everyone has the right to freedom of expression. This right includes
the freedom to seek, receive and impart information and ideas of all kinds,
regardless of borders, whether orally, in writing or in print, by way of art, or
in another way chosen by him or her.
17 Taking
part in public life
Every citizen has the right, and is to have the opportunity,
to—
(a) take part in the conduct of public affairs, directly or through freely
chosen representatives; and
(b) vote and be elected at periodic elections, that guarantee the free
expression of the will of the electors; and
(c) have access, on general terms of equality, for appointment to the
public service and public office.
18 Right
to liberty and security of person
(1) Everyone has the right to liberty and security of person. In
particular, no-one may be arbitrarily arrested or detained.
(2) No-one may be deprived of liberty, except on the grounds and in
accordance with the procedures established by law.
(3) Anyone who is arrested must be told, at the time of arrest, of the
reasons for the arrest and must be promptly told about any charges against him
or her.
(4) Anyone who is arrested or detained on a criminal
charge—
(a) must be promptly brought before a judge or magistrate; and
(b) has the right to be tried within a reasonable time or
released.
(5) Anyone who is awaiting trial must not be detained in custody as a
general rule, but his or her release may be subject to guarantees to appear for
trial, at any other stage of the judicial proceeding, and, if appropriate, for
execution of judgment.
(6) Anyone who is deprived of liberty by arrest or detention is entitled
to apply to a court so that the court can decide, without delay, the lawfulness
of the detention and order the person’s release if the detention is not
lawful.
(7) Anyone who has been unlawfully arrested or detained has the right to
compensation for the arrest or detention.
(8) No-one may be imprisoned only because of the inability to carry out a
contractual obligation.
19 Humane
treatment when deprived of liberty
(1) Anyone deprived of liberty must be treated with humanity and with
respect for the inherent dignity of the human person.
(2) An accused person must be segregated from convicted people, except in
exceptional circumstances.
Note An accused child must also be segregated from accused adults
(see s 20 (1))
(3) An accused person must be treated in a way that is appropriate for a
person who has not been convicted.
20 Children
in the criminal process
(1) An accused child must be segregated from accused adults.
(2) An accused child must be treated in a way that is appropriate for a
person of the child’s age who has not been convicted.
(3) A child must be brought to trial as quickly as possible.
(4) A convicted child must be treated in a way that is appropriate for a
person of the child’s age who has been convicted.
(1) Everyone has the right to have criminal charges, and rights and
obligations recognised by law, decided by a competent, independent and impartial
court or tribunal after a fair and public hearing.
(2) However, the press and public may be excluded from all or part of a
trial—
(a) to protect morals, public order or national security in a democratic
society; or
(b) if the interest of the private lives of the parties require the
exclusion; or
(c) if, and to the extent that, the exclusion is strictly necessary, in
special circumstances of the case, because publicity would otherwise prejudice
the interests of justice.
(3) But each judgment in a criminal or civil proceeding must be made
public unless the interest of a child requires that the judgment not be made
public.
22 Rights
in criminal proceedings
(1) Everyone charged with a criminal offence has the right to be presumed
innocent until proved guilty according to law.
(2) Anyone charged with a criminal offence is entitled to the following
minimum guarantees, equally with everyone else:
(a) to be told promptly and in detail, in a language that he or she
understands, about the nature and reason for the charge;
(b) to have adequate time and facilities to prepare his or her defence and
to communicate with lawyers or advisors chosen by him or her;
(c) to be tried without unreasonable delay;
(d) to be tried in person, and to defend himself or herself personally, or
through legal assistance chosen by him or her;
(e) to be told, if he or she does not have legal assistance, about the
right to legal assistance chosen by him or her;
(f) to have legal assistance provided to him or her, if the interests of
justice require that the assistance be provided, and to have the legal
assistance provided without payment if he or she cannot afford to pay for the
assistance;
(g) to examine prosecution witnesses, or have them examined, and to obtain
the attendance and examination of witnesses on his or her behalf under the same
conditions as prosecution witnesses;
(h) to have the free assistance of an interpreter if he or she cannot
understand or speak the language used in court;
(i) not to be compelled to testify against himself or herself or to
confess guilt.
(3) A child who is charged with a criminal offence has the right to a
procedure that takes account of the child’s age and the desirability of
promoting the child’s rehabilitation.
(4) Anyone convicted of a criminal offence has the right to have the
conviction and sentence reviewed by a higher court in accordance with
law.
23 Compensation
for wrongful conviction
(1) This section applies if—
(a) anyone is convicted by a final decision of a criminal offence;
and
(b) the person suffers punishment because of the conviction; and
(c) the conviction is reversed, or he or she is pardoned, on the ground
that a new or newly discovered fact shows conclusively that there has been a
miscarriage of justice.
(2) If this section applies, the person has the right to be compensated
according to law.
(3) However, subsection (2) does not apply if it is proved that the
nondisclosure of the unknown fact in time is completely or partly the
person’s own doing.
24 Right
not to be tried or punished more than once
No-one may be tried or punished again for an offence for which he or she
has already been finally convicted or acquitted in accordance with
law.
25 Retrospective
criminal laws
(1) No-one may be held guilty of a criminal offence because of conduct
that was not a criminal offence under Territory law when it was engaged
in.
(2) A penalty may not be imposed on anyone for a criminal offence that is
heavier than the penalty that applied to the offence when it was committed. If
the penalty for an offence is reduced after anyone commits the offence, he or
she benefits from the reduced penalty.
26 Freedom
from forced work
(1) No-one may be held in slavery or servitude.
(2) No-one may be made to perform forced or compulsory labour.
(3) In subsection (2):
forced or compulsory labour does not include—
(a) work or service normally required of an individual who is under
detention because of a lawful court order, or who has been conditionally
released from detention under a court order; or
(b) work or service required because of an emergency or calamity
threatening the life or wellbeing of the community; or
(c) work or service that forms part of normal civil obligations.
Anyone who belongs to an ethnic, religious or linguistic minority must not
be denied the right, with other members of the minority, to enjoy his or her
culture, to declare and practise his or her religion, or to use his or her
language.
28 Human
rights may be limited
Human rights may be subject only to reasonable limits set by Territory laws
that can be demonstrably justified in a free and democratic
society.
Part
4 Application of human rights to
Territory laws
This part applies to all Territory laws.
30 Interpretation
of laws and human rights
(1) In working out the meaning of a Territory law, an interpretation that
is consistent with human rights is to be preferred to any other
interpretation.
(2) If applying subsection (1) and Legislation Act, section 139 to a
Territory law would achieve a different result, only section 139 is to be
applied.
Note Legislation Act, s 139 requires the interpretation that would
best achieve the purpose of a law to be preferred to any other interpretation
(the purposive test).
(3) In this section:
working out the meaning of a Territory law
means—
(a) resolving an ambiguous or obscure provision of the law; or
(b) confirming or displacing the apparent meaning of the law; or
(c) finding the meaning of the law when its apparent meaning leads to a
result that is manifestly absurd or is unreasonable; or
(d) finding the meaning of the law in any other case.
31 Interpretation
of human rights
(1) International law, and the judgments of foreign and international
courts and tribunals, relevant to a human right may be considered in
interpreting the human right.
(2) In deciding whether material mentioned in subsection (1) or any other
material should be considered, and the weight to be given to the material, the
following matters must be taken into account:
(a) the desirability of being able to rely on the ordinary meaning of this
Act, having regard to its purpose and its provisions read in the context of the
Act as a whole;
(b) the undesirability of prolonging proceedings without compensating
advantage;
(c) the accessibility of the material to the public.
(3) For subsection (2) (c), material in the ACT legislation register is
taken to be accessible to the public.
32 Declaration
of incompatibility
(1) This section applies if—
(a) a proceeding is being heard by the Supreme Court; and
(b) an issue arises in the proceeding about whether a Territory law is
consistent with a human right.
(2) If the Supreme Court is satisfied that the Territory law is not
consistent with the human right, the court may declare that the law is not
consistent with the human right (the declaration of
incompatibility).
(3) The declaration of incompatibility does not affect—
(a) the validity, operation or enforcement of the law; or
(b) the rights or obligations of anyone.
(4) The registrar of the Supreme Court must promptly give a copy of the
declaration of incompatibility to the Attorney-General.
33 Attorney-General’s
action on receiving declaration of incompatibility
(1) This section applies if the Attorney-General receives a copy of a
declaration of incompatibility.
(2) The Attorney-General must present a copy of the declaration of
incompatibility to the Legislative Assembly within 6 sitting days after the day
the Attorney-General receives the copy.
(3) The Attorney-General must prepare a written response to the
declaration of incompatibility and present it to the Legislative Assembly not
later than 6 months after the day the copy of the declaration is presented to
the Legislative Assembly.
34 Notice
to Attorney-General
(1) This section applies if—
(a) the Supreme Court is considering making a declaration of
incompatibility in a proceeding; and
(b) the Territory is not a party to the proceeding.
(2) The Supreme Court must not make the declaration unless the court is
satisfied that—
(a) notice of the issue has been given to the Attorney-General;
and
(b) a reasonable time has passed since the giving of the notice for the
Attorney-General to decide whether to intervene in the proceeding.
(3) For subsection (2), the Supreme Court may direct a party to give
notice of the issue to the Attorney-General.
35 Attorney-General’s
right to intervene on human rights
The Attorney-General may intervene in a proceeding before a court that
involves the application of this Act.
36 Human
rights commissioner may intervene
(1) The human rights commissioner may intervene in a proceeding before a
court that involves the application of this Act with the leave of the
court.
(2) The court may give leave subject to conditions.
Part
5 Scrutiny of proposed Territory
laws
37 Attorney-General’s
statement on government bills
(1) This section applies to each bill presented to the Legislative
Assembly by a Minister.
(2) The Attorney-General must prepare a written statement (the
compatibility statement) about the bill for presentation to the
Legislative Assembly.
(3) The compatibility statement must state—
(a) whether, in the Attorney-General’s opinion, the bill is
consistent with human rights; and
(b) if it is not consistent, how it is not consistent with human
rights.
38 Consideration
of bills by standing committee of Assembly
(1) The relevant standing committee must report to the Legislative
Assembly about human rights issues raised by bills presented to the
Assembly.
(2) In this section:
relevant standing committee means—
(a) the standing committee of the Legislative Assembly nominated by the
Speaker for this section; or
(b) if no nomination under paragraph (a) is in effect—the standing
committee of the Legislative Assembly responsible for the consideration of legal
issues.
39 Noncompliance
with s 37 and s 38
A failure to comply with section 37 or section 38 in relation to a bill
does not affect the validity, operation or enforcement of any Territory
law.
Part
6 Human rights
commissioner
40 Human
rights commissioner
(1) There is to be an Australian Capital Territory Human Rights
Commissioner (the human rights commissioner).
(2) The discrimination commissioner is the human rights
commissioner.
41 Human
rights commissioner’s functions
(1) The human rights commissioner has the following functions:
(a) to review the effect of Territory laws, including the common law, on
human rights, and report to the Attorney-General on the results of the
review;
(b) to provide education about human rights and this Act;
(c) to advise the Attorney-General on anything relevant to the operation
of this Act.
(2) The human rights commissioner has any other function given to the
commissioner under any other Territory law.
42 Regulation-making
power
The Executive may make regulations for this Act.
Note Regulations must be notified, and presented to the Legislative
Assembly, under the Legislation Act.
(1) The Attorney-General must review the operation of this Act and present
a report of the review to the Legislative Assembly not later than 1 July
2009.
(2) This section expires on 1 January 2010.
44 Legislation
amended—sch 2
This Act amends the following legislation:
• Annual Reports (Government Agencies) Act 1995
• Discrimination Act 1991
• Legislation Act 2001.
Schedule
1 ICCPR source of human
rights
(see pt 3)
column 1
item
|
column 2
section
|
column 3
description
|
column 4
ICCPR article
|
1
|
8 (1)
|
right to recognition as person
|
16
|
2
|
8 (2)
|
right to enjoy rights without distinction etc
|
2 (1)
|
3
|
8 (3)
|
equality before law and equal protection
|
26
|
4
|
9 (1)
|
right to life
|
6 (1)
|
5
|
10
|
protection from torture and cruel, inhuman or degrading treatment
etc
|
7
|
6
|
11 (1)
|
protection of family
|
23 (1)
|
7
|
11 (2)
|
protection of children
|
24 (1)
|
8
|
12
|
privacy and reputation
|
17 (1)
|
9
|
13
|
freedom of movement
|
12 (1)
|
10
|
14 (1)
|
freedom of thought, conscience and religion
|
18 (1), (3)
|
11
|
14 (2)
|
no coercion to limit religious freedom
|
18 (2), (3)
|
12
|
15 (1)
|
peaceful assembly
|
21
|
13
|
15 (2)
|
freedom of association
|
22
|
14
|
16 (1)
|
right to hold opinions
|
19 (1)
|
15
|
16 (2)
|
freedom of expression
|
19 (2), (3)
|
16
|
17
|
taking part in public life
|
25
|
17
|
18 (1)-(7)
|
right to liberty and security of person
|
9
|
18
|
18 (8)
|
no imprisonment for contractual obligations
|
11
|
19
|
19
|
humane treatment when deprived of liberty
|
10 (1),(2) (a)
|
20
|
20
|
children in the criminal process
|
10 (2) (b),(3)
|
21
|
21
|
fair trial
|
14 (1)
|
22
|
22 (1)
|
rights in criminal proceedings
|
14 (2)
|
23
|
22 (2)
|
minimum guarantees for those charged
|
14 (3)
|
24
|
22 (3)
|
rights of child charged
|
14 (4)
|
25
|
22 (4)
|
right of review
|
14 (5)
|
26
|
23
|
compensation for wrongful conviction
|
14 (6)
|
27
|
24
|
right not to be tried or punished more than once
|
14 (7)
|
28
|
25
|
retrospective criminal laws
|
15 (1)
|
29
|
26
|
freedom from forced work
|
8 (1), (2), (3) (a), (3) (c)
|
30
|
27
|
rights of minorities
|
27
|
Schedule
2 Consequential
amendments
(see s
44)
Part
2.1 Annual Reports (Government
Agencies) Act 1995
insert
(2A) A report must include a statement describing the measures taken by
the administrative unit during the period to respect, protect and promote human
rights.
renumber subsections when Act next republished under Legislation
Act
insert
(2A) For a report of a public authority other than a statutory
office-holder declared to be a public authority under the section 4A, the report
must include a statement describing the measures taken by the public authority
during the period to respect, protect and promote human rights.
renumber subsections when Act next republished under Legislation
Act
Part
2.2 Discrimination Act
1991
substitute
(f) to exercise any other function given to the commissioner under this
Act, the Human Rights Act 2003 or another Territory law;
Part
2.3 Legislation Act
2001
substitute
(f) Commonwealth laws that apply in or in relation to the ACT;
(g) material relevant to interpreting the rights set out in the Human
Rights Act 2003, including documents mentioned in that Act, dictionary,
definition of international law.
insert
Note The Human Rights Act 2003, s 30 (1) (which is about
interpreting legislation to be consistent with human rights) is also relevant to
interpreting Territory laws.
(see s 3)
Note 1 The Legislation Act contains definitions and other provisions
relevant to this Act.
Note 2 For example, the Legislation Act, dict, pt 1, defines the
following terms:
• Act (see s 7)
• entity
• foreign country
• individual
• may (see s 146)
• proceeding
• statutory instrument (see s 13).
court includes the following:
(a) the administrative appeals tribunal;
(b) the discrimination tribunal;
(c) the guardianship tribunal;
(d) the mental health tribunal;
(e) an entity prescribed under the regulations.
conduct includes omission.
declaration of incompatibility—see section
32.
engage in conduct means—
(a) do an act; or
(b) omit to do an act.
human rights—see section 5.
human rights commissioner—see section 40 (1).
ICCPR means the International Covenant on Civil and Political
Rights.
international law includes—
(a) the International Covenant on Civil and Political Rights and other
human rights treaties to which Australia is a party; and
(b) general comments and views of the United Nations human rights treaty
monitoring bodies; and
(c) declarations and standards adopted by the United Nations General
Assembly that are relevant to human rights.
Territory law means an Act or statutory instrument.
Endnote
Republications of amended laws
For the latest republication of amended laws, see
www.legislation.act.gov.au.
© Australian Capital Territory
2003
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