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 There should also be: • permanent, dedicated internal departmental human rights expertise and responsibility for consultation and education on Human Rights Act matters • the development and implementation of human rights action plans by federal departments and agencies • the development of tailored guidelines, checklists and resources to enable staff within public authorities to make human rights-compliant decisions within their areas of competence • respect for human rights included within public sector codes of conduct. The Commission considers that it would have a central role in providing tailored and general education about the Human Rights Act for public authorities, and would require dedicated ongoing resourcing to do so. (i) Procedural duties (iv) Participation duty • 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. (iii) 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 of one year pre-introduction, to develop proficiency within the public service. Human Rights Act implementation should include an initial whole‑of-government education program, 58 followed by permanent routine educational requirements at all levels of government to maintain fluency with the Human Rights Act and an embedding of ‘rights-mindedness’. In addition to the positive duty on public authorities to consider and act in accordance with human rights, the Commission proposes that an overarching ‘participation duty’ be introduced into a Human Rights Act. The participation duty would primarily operate as an aspect of the binding positive duty on public authorities. This would require ensuring the effective participation of these affected groups in decision making that affects them directly. This would apply at 2 levels: • Group level: Government would need to describe how it had engaged with affected communities in drafting legislation and regulations, with the PJCHR having an oversight role of the adequacy of this. FREE & EQUAL: Revitalising Australia’s Commitment to Human Rights