include, for example, that consultations should occur at a formative stage; and that the results of the consultation should be conscientiously taken into account. Such objective criteria can be applied by the courts when determining whether the Human Rights Act was breached due to failure to consult in relation to particular right(s). Where public authorities can show that they enabled affected person(s) to genuinely participate in a decision made about them, this will fulfil the participation duty, and point to the fulfilment of the substantive right under consideration by a court. As with substantive rights in the Human Rights Act, the participation duty could be justifiably limited through the application of the limitations clause. (v) Participation duty on proponents of legislation The participation duty would also apply as a non-binding duty for proponents of legislation to facilitate participation during the law-making process and to reflect what participation measures were undertaken in Statements of Compatibility. This would also be subject to scrutiny by the PJCHR. Failure to engage in or report on participation to Parliament would not affect the validity of the instrument in question. (j) Equal access to justice duty In addition to an overarching participation duty, the Commission proposes a complementary ‘equal access to justice duty’ for public authorities. The equal access to justice duty would embed procedural fairness and civil rights protections into decision making and court processes, so that people are equally able to access justice. This may include being provided information in a format that is comprehensible (such as through interpreters and translation) or with processes adapted to address trauma and other impacts on victims of violence. 60 This duty would mean that public authorities have a positive duty to realise access to justice principles – and would require active steps by public authorities to ensure the provision of key elements of a functioning justice system. Specifically, it would be the role of public authorities to provide sufficient access to legal assistance, interpreters and disability support to individuals navigating the justice system. This duty would create an obligation to meet minimum requirements associated with the right to a fair hearing, overlayed by non‑discrimination principles that require the provision of certain key supports and services within the justice system to protect equality before the law. This is a principle of equal access, in order to overcome current barriers to access faced by particular groups. The purpose of this duty is not only to codify but to strengthen and support key principles established by common law courts by linking them to positive human rights obligations as defined by international law. The duty would embed non-discrimination principles into planning and policy by public authorities associated with the justice system. The duty may arise as part of a consideration of whether related Human Rights Act rights were breached by public authorities due to a failure to implement minimum justice guarantees. (k) Technology and decision making Increasingly, public authorities are utilising technology, such as automated processes and artificial intelligence (AI), when making decisions. This includes decisions that directly affect people’s rights. It is important that the same procedural fairness principles and rights consideration apply to all decisions made by public authorities, regardless of how the decision is made. This should be explicitly clarified in the Human Rights Act. FREE & EQUAL: Revitalising Australia’s Commitment to Human Rights