3. A Human Rights Act for Australia
3.6 Interpretation of rights in
the Human Rights Act
The Commission proposes that the Human
Rights Act provide guidance about how rights
in the Human Rights Act should be interpreted.
As Human Rights Act rights are derived from
international law, it is necessary for courts,
tribunals and public authorities to be directed
to consider international source instruments
and related authoritative international
materials to gain context for how the rights
are to be understood.
The Human Rights Act should include a clause
that references the seven core treaties that
Australia has ratified, along with UNDRIP, and
requires the rights in the Human Rights Act to
be interpreted in light of these instruments.
This will encourage courts (as well as
Parliament and the Executive) to take into
account these instruments when interpreting
the rights in the Human Rights Act.
This approach would also encourage
consideration of explanatory General Comments
and other relevant international materials,
ensuring that the Human Rights Act remains
a ‘living document’ that takes into account
developments in international law, including
after the Human Rights Act is adopted.
3.7 Interpretation of federal laws
and limitations on human rights
The interpretive clause provides guidance
to courts about how they should interpret
legislation in light of the human rights
contained within the Human Rights Act.
Courts are to prefer an interpretation that
is compatible with human rights, provided
that this is consistent with the intention of
Parliament, as expressed through the statute
under analysis.
interpreting statutes in a way that is consistent
with human rights. A statutory restriction
on human rights may be permissible – and
therefore consistent with human rights – if it is
justified by the limitations clause, for example
because it is proportionate to the achievement
of a public purpose or the fulfilment of a
different, competing human right.
The limitations clause will also be relevant
in assessing whether decisions or actions of
public authorities that limit human rights are
permissible. This will be particularly relevant to
claims by individuals that their human rights
have been breached.
Public authorities will need to have regard
to the interpretative clause when making
decisions or taking action pursuant to statutory
authority. More generally, they will need to have
regard to the limitations clause in relation to
any decision or action that has the potential to
impact on human rights.
(a) Interpretive clause
An interpretive clause requires courts to
interpret legislation in a way that is consistent
with human rights where possible.
At the same time, the interpretive clause
requires courts to respect the parliamentary
intention underlying the statute – noting that,
in a dialogue model, parliamentary intention
will prevail, due to the ultimate supremacy
of Parliament.
The Commission’s approach to the interpretive
clause is designed to chart a middle ground
between a constitutionally uncertain approach
that would grant too much interpretive power
to the courts to alter the meaning of legislation;
and an approach that would simply be akin to
the existing common law principle of legality.
The approach that received the most support in
consultations is the following formulation.
The limitations clause provides guidance on the
ways in which human rights can be permissibly
limited. This can be relevant to the task of
FREE & EQUAL: Revitalising Australia’s Commitment to Human Rights
All primary and subordinate Commonwealth
legislation is to be interpreted, so far as
is reasonably possible, in a manner that is
consistent with human rights.
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