3. A Human Rights Act for Australia • Individual level: Administrative review would be available for decisions about individuals, to ensure that they were able to effectively participate in the process leading to the decision. This would be of particular importance for persons with a disability by requiring that decision making processes facilitated supported (rather than substituted) decision making. The participation duty would apply to proponents of legislation in a non‑binding respect, reflected in Statements of Compatibility and assessed through the scrutiny process of the PJCHR. The participation duty would require public authorities to ensure the participation of certain groups and individuals in relation to policies and decisions that directly or disproportionately affect their rights. The participation duty addresses a fundamental problem in the development of federal policies and decisions – inadequate engagement with the very people to whom those policies and decisions directly apply. The Commission’s proposal for a participation duty draws on international human rights law standards and common law procedural fairness principles. It would synthesise procedures concerning consultations and set clear standards, fleshing out what participation means in relation to certain groups that are often overlooked in policy formulation and decision-making processes. International law requires specific participation measures to be undertaken regarding decisions affecting the rights of First Nations peoples, children and persons with disability. The participation duty would be a means of realising key procedural elements of the existing rights in the Human Rights Act, in relation to these 3 groups. The duty will apply differently to each of these groups, as defined by the relevant international instruments. However, the same underlying requirement applies. When decisions will affect the rights of members of these groups, public authorities have a duty to ensure their participation in those decisions. • Where decisions of public authorities will affect the rights of First Nations peoples and communities, participation processes should be facilitated in line with UNDRIP principles and standards relevant to consultation and participation. • When individual children are affected by a decision, the ‘best interests’ principle should be applied, and the child should be heard, with their views given due weight in accordance with their age and maturity. When children as a group are affected by proposed policies or laws, the best interests of children should be proactively considered, and children should be consulted as part of the development process. • Individual persons with disability should be supported to make their own decisions in all aspects of their lives, and public authorities should have processes in place to facilitate supported decision making. When decisions have an impact upon people with disabilities as a group, persons with disability, including through their representative organisations, should be consulted as part of the process. The participation duty would arise when public authorities are developing policies, or making decisions, that affect the rights of these 3 groups. The duty would arise when decisions are being made that directly concern these groups, or where the decision is likely to have a disproportionate impact on the group in question. For example, changes to planning policies may have a disproportionate impact on people with disabilities if they affect accessibility. Where decisions are made that affect groups of people, the decision maker need only show that there was sufficiently fair and representative consultation, not that participation occurred comprehensively with all relevant bodies or individuals. In the Commission’s Position Paper, the Commission sets out guidelines identifying the key considerations for determining the quality of a general participation process.6 These FREE & EQUAL: Revitalising Australia’s Commitment to Human Rights 59