3. A Human Rights Act for Australia
(g) Approach to Aboriginal and
Torres Strait Islander peoples’ rights
Within the Human Rights Act model, the
Commission proposes that the rights of
Aboriginal and Torres Strait Islander peoples
be reflected in the following manner, subject to
further consultations with First Nations peoples:
• A ‘participation duty’ applicable to
the executive, to reflect principles of
self‑determination through practical
measures by public authorities.
• The inclusion of cultural rights,
non‑discrimination rights and ICESCR rights
ensure the incorporation of key UNDRIP
rights within the Human Rights Act.
• A standalone cause of action, with capacity
for representative actions, will enable
organisations to bring claims on behalf of
communities – recognising the collective
aspect of these rights.
• First Nations participation reflected in
parliamentary scrutiny processes through
the requirement to list in Statements of
Compatibility steps taken to ensure that
participation of First Nations peoples has
occurred, where relevant. This would also be
subject to assessment by the Parliamentary
Joint Committee on Human Rights.
• A clause enabling human rights in the
Human Rights Act to be interpreted in light
of UNDRIP in cases where the rights of First
Nations peoples have been affected.
• The right to self-determination articulated in
a preamble to the Human Rights Act as an
overarching principle of the instrument.
The Commission considers that, in combination
with a Human Rights Act, a range of additional
steps should be undertaken to implement the
rights of First Nations peoples, particularly
as set out in UNDRIP. This includes through
introduction of a National Plan to implement
UNDRIP, national and regional representative
mechanisms to ensure participation in decision
making, and the implementation of the Uluru
Statement from the Heart.
(h) Positive duty on public authorities
(i) 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 – 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.
(ii) 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,
non‑government 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.
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