(d) Positive duty on public authorities • Nature of the duty A Human Rights Act would create a legislative obligation for public authorities to act compatibly with the human rights expressed in the Human Rights Act and to give proper consideration to human rights when making decisions. This is also known as a ‘positive duty’ applying to public authorities. The requirement to give ‘proper consideration’ to human rights applies to making decisions and implementing legislation and policy – it is a procedural obligation. The requirement to ‘act compatibly’ with human rights is a substantive obligation on public authorities. Public authorities would also be required to engage in participation processes where the ‘participation duty’ is relevant, as part of the ‘proper consideration’ limb. Compliance with the positive duty would be reviewable by courts (and possibly by tribunals as discussed below in relation to administrative law remedies). The positive duty would require decision makers to consider human rights at an early stage, helping to prevent breaches from occurring. • Scope of public authorities The scope of public authorities with obligations to comply with the positive duty includes ‘core’ executive bodies, such as government departments, agencies and offices, and the police. It also includes ‘functional’ public authorities, which are private businesses, nongovernment organisations and contractors that have functions of a public nature and are exercising those functions on behalf of government. Private entities only have to comply with the Human Rights Act when they carry out public functions. 20 The Commission has proposed adapting state and territory definitions of ‘public authorities’ to suit the federal context, in a manner that is flexible enough to accommodate changes to governance arrangements and clear enough to provide certainty as to who must comply with the Human Rights Act. There is a range of factors included in the definition that indicate whether or not an entity is a functional public authority (for example, whether the function is conferred on the entity under a statutory provision, and whether the entity is publicly funded). The definition also includes examples of functions that are definitively of a public nature. Examples of functional public authorities at the federal level would include a private company operating a federal prison; and a private service provider delivering services through the NDIS. Not included in the scope of public authorities are the Parliament of Australia, except when acting in an administrative capacity; the courts, except when acting in an administrative capacity and where the Human Rights Act applies to the court’s own procedures; and entities declared by Human Rights Act regulations not to be a public authority. The Commission also proposes including an ‘opt-in’ clause for businesses and organisations to voluntarily accept responsibility to comply with the Human Rights Act. • Implementing the duty A positive duty must be accompanied by intensive measures to ensure cultural change and the adoption of a preventative approach to human rights protection within public authorities. There should be a transition period pre-introduction (1 year) to develop proficiency within the public service. Human Rights Act implementation should include an initial wholeof-government education program, followed by permanent routine educational requirements at all levels of government to maintain fluency with the Human Rights Act.