Human Rights (Complaints) Legislation Amendment Act 2023 (ACT)

Human Rights (Complaints) Legislation Amendment Act 2023

A2023-53

Contents

Page

Part 1      Preliminary

1            Name of Act  2

2            Commencement  2

3            Legislation amended  2

Part 2Human Rights Act 2004

4            Notice to Attorney-General and commissionSection 34 (1) and (2)  3

5            Section 34 (3) (a)  3

6            Section 38 heading  4

7           Section 38 (1)  4

8            Public authorities must act consistently with human rightsSection 40B (1), new note  4

9            Legal proceedings in relation to public authority actionsNew section 40C (3A)  4

10          New section 40C (3A)  5

Part 3Human Rights Commission Act 2005

11          Main objects of ActSection 6 (2) (j)  6

12          Disability and community services commissioner’s functionsNew section 21 (1) (c) (vii)  6

13          New section 41D  6

14          What complaints may be made under this Act?New section 42 (1) (da)  7

15          Who may make a complaint under this Act?New section 43 (1A)  8

16          Final reportSection 81, new note  8

17          New section 82D  8

18          Third-party reportsNew section 83 (2A)  9

19          New section 86A  9

20          New part 8  10

21          Dictionary, definition of act  11

22          Dictionary, new definition of human rights complaint  11

23          Dictionary, definition of person complained about, new paragraph (d)    11

24          Dictionary, new definition of public authority  12

Schedule 1Human Rights Act 2004—Technical amendments 13

Human Rights (Complaints) Legislation Amendment Act 2023

A2023-53

An Act to amend the Human Rights Act 2004 and the Human Rights Commission Act 2005

The Legislative Assembly for the Australian Capital Territory enacts as follows:

Part 1Preliminary

1. Name of Act

   This Act is the Human Rights (Complaints) Legislation Amendment Act 2023.

2. Commencement

   (1)The following provisions commence on the day after this Act’s notification day:

   ·     sections 3 to 7

   ·     section 9

   ·     schedule 1.

   NoteThe naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

   (2)The remaining provisions of this Act commence on a day fixed by the Minister by written notice.

   Note 1A single day or time may be fixed, or different days or times may be fixed, for the commencement of different provisions (see Legislation Act, s 77 (1)).

   Note 2If a provision has not commenced within 6 months beginning on the notification day, it automatically commences on the first day after that period (see Legislation Act, s 79).

3. Legislation amended

   This Act amends the Human Rights Act 2004 and the Human Rights Commission Act 2005.

Part 2Human Rights Act 2004

1. Notice to Attorney-General and commission
   Section 34 (1) and (2)

   substitute

   (1)This section applies if—

   (a)a question arises in a proceeding in the Supreme Court that involves the application of this Act; or

   (b)the Supreme Court is considering making a declaration of incompatibility in a proceeding.

   (2)The Supreme Court must not allow the proceeding to continue or make the declaration unless the court is satisfied that—

   (a)notice of the proceeding has been given to—

   (i)the commission; and

   (ii)if the Territory is not a party to the proceeding—the Attorney-General; and

   (b)a reasonable period of time has passed since the giving of the notice for the commission and, if required, the Attorney‑General to decide whether to intervene in the proceeding.

2. Section 34 (3) (a)

   substitute

   (a)direct a party to give notice of the proceeding to the commission and, if required, the Attorney-General; and

3. Section 38 heading

   substitute

4. Consideration of legislation by relevant Assembly committee

5. Section 38 (1)

   after

   bills

   insert

   and subordinate laws

6. Public authorities must act consistently with human rights
   Section 40B (1), new note

   insert

   NoteA person who is or would be aggrieved by an act by a public authority they believe to be in contravention of this section may make a human rights complaint about the public authority to the commission under the Human Rights Commission Act 2005, section 41D.

7. Legal proceedings in relation to public authority actions
   New section 40C (3A)

   insert

   (3A)The respondent to a proceeding started under subsection (2) (a) is—

   (a)if the public authority is a public authority mentioned in section 40 (1) (a) to (e) or (g)—the public authority; or

   (b)if the public authority is a public employee who is a statutory office-holder—the statutory office-holder; or

   (c)if the public authority is any other public employee—the Territory; or

   (d)if the public authority is an entity for whom a declaration is in force under section 40D—the entity.

8. New section 40C (3A)

   insert

   (3A)Without limiting subsection (3), the court may order that a proceeding under subsection (2) (a) be started after the period stated in subsection (3) if—

   (a)the person making the claim has made a human rights complaint to the commission under the Human Rights Commission Act 2005, section 41D about the act within the period stated in subsection (3); and

   (b)it is unreasonable in the circumstances for the period to apply to the proceeding.

Part 3Human Rights Commission Act 2005

1. Main objects of Act
   Section 6 (2) (j)

   after

   discrimination complaints

   insert

   , human rights complaints

2. Disability and community services commissioner’s functions
   New section 21 (1) (c) (vii)

   insert

   (vii)a human rights complaint;

3. New section 41D

   insert

41DHuman rights complaints

(1)A person may complain to the commission about a public authority (a human rights complaint) if the person believes the public authority has acted in contravention of the Human Rights Act 2004, section 40B (Public authorities must act consistently with human rights).

(2)However, the person must not make a human rights complaint unless the person—

(a)has made a complaint to the relevant person about the contravention claimed; and

(b)either—

(i)has not received a response to the complaint within 45 days after making the complaint; or

(ii)has received a response they consider to be inadequate.

(3)The commission may accept a person’s human rights complaint without requiring the person to comply with subsection (2) if—

(a)the person makes another complaint under this Act in relation to—

(i)the same act that constitutes the contravention claimed; or

(ii)substantially the same circumstances or subject matter of the contravention claimed; or

(b)the commission is satisfied on reasonable grounds that exceptional circumstances justify accepting the person’s human rights complaint.

(4)In this section:

relevant person, for a complaint under subsection (2) (a), means the person complained about as if the complaint is a human rights complaint.

1. What complaints may be made under this Act?
   New section 42 (1) (da)

   insert

   (da)a human rights complaint;

2. Who may make a complaint under this Act?
   New section 43 (1A)

   insert

   (1A)For subsection (1) (a), if the complaint is a human rights complaint—an aggrieved person includes a person who would be aggrieved by the act.

3. Final report
   Section 81, new note

   insert

   NoteFor final reports in relation to human rights complaints that are closed because the commission considers that conciliation is unlikely to succeed in resolving the complaint—see s 82D.

4. New section 82D

   insert

82DClosing human rights complaints if conciliation unlikely to succeed

(1)This section applies if the commission closes a human rights complaint because section 78 (1) (f) applies.

(2)The final report in relation to the human rights complaint may—

(a)include the substance of the complaint; and

(b)include the actions taken to try to resolve the complaint; and

(c)recommend any action the commission considers the person complained about should take to ensure their acts and decisions are compatible with human rights.

(3)A recommendation need not be limited to matters raised by the complaint being closed.

(4)If a recommendation recommends that action be taken, it must state the reasonable time within which the action should be taken.

(5)The final report is not admissible in a proceeding under the Human Rights Act 2004, section 40C (Legal proceedings in relation to public authority actions) unless the complainant and the person complained about agree.

(6)This section is additional to the other requirements of this Act for a final report.

1. Third-party reports
   New section 83 (2A)

   insert

   (2A)A third-party report given by the commission in considering a human rights complaint may recommend any action the commission considers the third party should take to ensure their acts and decisions are compatible with human rights.

2. New section 86A

   insert

86APublication of information in relation to human rights complaints

(1)The commission may publish information about a human rights complaint that the commission has closed.

(2)The publication—

(a)may include the substance of the complaint; and

(b)may draw on information about the complaint contained in a final report; and

(c)must not include personal information about an individual unless the information has been previously published or the individual consents to the information being published.

1. New part 8

   insert

Part 8Transitional—Human Rights (Complaints) Legislation Amendment Act 2023

1. Contravention of Human Rights Act 2004 before commencement day

   (1)This section applies if—

   (a)a person believes that a public authority has acted in contravention of the Human Rights Act 2004, section 40B (Public authorities must act consistently with human rights) before the commencement day; and

   (b)the person is or would be aggrieved by the act.

   (2)The person may make a human rights complaint about the public authority on or after the commencement day.

   (3)In this section:

   act includes a proposal to act.

   commencement day means the day the Human Rights (Complaints) Legislation Amendment Act 2023, section 13 commences.

2. Expiry—pt 8

   This part expires 2 years after the day the Human Rights (Complaints) Legislation Amendment Act 2023, section 13 commences.

   NoteA transitional provision is repealed on its expiry but continues to have effect after its repeal (see Legislation Act, s 88).

3. Dictionary, definition of act

   substitute

   act—

   (a)includes omission; and

   (b)for a human rights complaint—includes a proposal to act.

4. Dictionary, new definition of human rights complaint

   insert

   human rights complaint—see section 41D (1).

5. Dictionary, definition of person complained about, new paragraph (d)

   insert

   (d)in relation to a human rights complaint—

   (i)if the public authority complained about is a public authority mentioned in the Human Rights Act 2004, section 40 (1) (a) to (c)—the director-general of—

   (A)the administrative unit; or

   (B)the administrative unit responsible for the provision of the Act that establishes the territory authority or territory instrumentality; or

   (ii)if the public authority complained about is a public authority mentioned in the Human Rights Act 2004, section 40 (1) (d), (e) or (g)—the public authority; or

   (iii)if the public authority complained about is a public employee who is a statutory office-holder—the statutory office-holder; or

   (iv)if the public authority complained about is any other public employee—the director-general of the administrative unit in which the public employee is employed; or

   (v)if the public authority complained about is an entity for whom a declaration is in force under the Human Rights Act 2004, section 40D (Other entities may choose to be subject to obligations of public authorities)—the entity.

6. Dictionary, new definition of public authority

   insert

   public authority—

   (a)see the Human Rights Act 2004, section 40; and

   (b)includes an entity for whom a declaration is in force under the Human Rights Act 2004, section 40D (Other entities may choose to be subject to obligations of public authorities).

Schedule 1Human Rights Act 2004—Technical amendments

(see s 3)

[1.1]Sections 8 and 10 to 14

omit

his or her

substitute

their

Explanatory note

This amendment updates language in line with current legislative drafting practice.

[1.2]Sections 16 (2) and 18 (3)

omit

him or her

substitute

them

Explanatory note

This amendment updates language in line with current legislative drafting practice.

[1.3]Section 18 (5)

omit

his or her

substitute

their

Explanatory note

This amendment updates language in line with current legislative drafting practice.

[1.4]Section 22 (2) (a) to (i)

substitute

(a)to be told promptly and in detail, in a language that they understand, about the nature and reason for the charge;

(b)to have adequate time and facilities to prepare their defence and to communicate with lawyers or advisors chosen by them;

(c)to be tried without delay;

(d)to be tried in person, and to defend themselves personally, or through legal assistance chosen by them;

(e)to be told, if they do not have legal assistance, about the right to legal assistance chosen by them;

(f)to have legal assistance provided to them, if the interests of justice require that the assistance be provided, and to have the legal assistance provided without payment if they 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 their behalf under the same conditions as prosecution witnesses;

(h)to have the free assistance of an interpreter if they cannot understand or speak the language used in court;

(i)not to be compelled to testify against themselves or to confess guilt.

Explanatory note

This amendment updates language, for example, ‘his or her’, in line with current legislative drafting practice.

[1.5]Section 23 (1) (c)

omit

he or she is

substitute

they are

Explanatory note

This amendment updates language in line with current legislative drafting practice.

[1.6]Section 24

omit

he or she has

substitute

they have

Explanatory note

This amendment updates language in line with current legislative drafting practice.

[1.7]Section 25 (2)

omit

he or she benefits

substitute

they benefit

Explanatory note

This amendment updates language in line with current legislative drafting practice.

[1.8]Sections 27 (1) and 27A (1)

omit

his or her

substitute

their

Explanatory note

This amendment updates language in line with current legislative drafting practice.

Endnotes

1. Presentation speech

   Presentation speech made in the Legislative Assembly on 20 September 2023.

2. Notification

   Notified under the Legislation Act on 11 December 2023.

3. Republications of amended laws

   For the latest republication of amended laws, see certify that the above is a true copy of the Human Rights (Complaints) Legislation Amendment Bill 2023, which was passed by the Legislative Assembly on 28 November 2023.

   Clerk of the Legislative Assembly

   © Australian Capital Territory 2023