: Human Rights Act review

Human Rights Act review

Simon Rice

This is old news, but it shouldn’t be. I had forgotten that 
the ACT Human Rights Act (‘HRA’) has a review provision (s 43) requiring the Attorney-General — by the end of 2014 — to review the operation of the so-called ‘right to education’ in s 27A, and to ask the really big question of ‘whether other economic, social or cultural rights should be included’ in the HRA.

When I was reminded of the review provision, I thought, that’s odd, I don’t remember a review process last year. The oddity is that there wasn’t one, at least not a public one. Instead, a ‘review’ was conducted in-house — http://justice.act.gov.au/review/view/32/title/2014-review-of-the-human, and tabled without a media release in November 2014. Specifically, the review was conducted ‘internally by officers of the Legislation, Policy and Programs branch of the ACT Justice and Community Safety Directorate’. There was research, ‘conducted with the assistance of an intern from the University of Canberra’, and ‘all ACT Government directorates were invited to provide input on the terms of reference’. This last point is ambiguous; the most favourable interpretation is that the directorates were invited to actually contribute to the review, but the report does not say whether or how they accepted the invitation.

On whether the people of the ACT should be guaranteed economic, social or cultural rights, the people were not asked. On how the very limited ‘right to education’ is operating, the people were not asked. Instead, the government’s own officers concluded that the very limited ‘right to education’ should not be expanded. Overall, they decided ‘not to introduce any further [economic, social or cultural rights] into the HRA’, saying that many economic, social and cultural rights ‘are already protected in the ACT through specific legislation and the policies that sit under those laws’. But that is not the point: provision of services, and legislative entitlements, are less than a guarantee of a right. An indication of the officers’ defensive thinking is in their rationale for recommending the positive step of amending the HRA to make public authorities accountable to the court for the right to education: doing so ‘is unlikely to have a significant impact on the day to day functions of Government’. Well, that’s alright then.

The issue of economic, social and cultural rights is complex in itself, and much more complex when considered in the context of a government with limited resources. In 2005, a researched and considered five year review of the HRA recommended the enactment of some economic, social and cultural rights, which the ACT government rejected. In 2014, the government’s own review of that decision warranted a process that respected both the complexity and the importance of the issue. But rather than initiating an independent and consultative review (whose report it could then reject if it wanted to), the government took a short cut and asked and answered its own questions.

SIMON RICE teaches law at the ANU. He chairs the ACT Law Reform Advisory Council.

(2015) 40(3) AltLJ 211
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