3. A Human Rights Act for Australia 3.11 Ten ways a national Human Rights Act would make a difference to people in Australia There are 10 ways that a Human Rights Act would better protect the rights of people in Australia. 1. 2. 3. 4. 5. There is a better understanding of human rights: A lesson from Human Rights Acts in other jurisdictions is that over time they result in increased human rights literacy among Parliamentarians, public officials and the general community. ‘Rights-mindedness’ leads to better decision making: The combination of measures contained in the Human Rights Act encourage the early consideration of human rights impacts in developing laws, policy and programs. A Human Rights Act builds a mindset that is focused on preventing violations of human rights in the first place. It encourages understanding how different processes will impact particular groups of people and to consider how to protect their rights in these circumstances. There is increased transparency and accountability about the impact of decision making on human rights. A Human Rights Act sets out criteria for the balancing of rights and how to appropriate limit human rights (so that the chosen option for law, policy or programs has the least restrictive impact on people’s human rights, and is appropriately tailored to the circumstances). The focus of decision makers will be on ensuring law and policy causes the least harm to people’s human rights. Where laws and policies negatively impact people’s human rights, it will be incumbent on public officials to demonstrate how the approach proposed is the least restrictive option, how it is necessary, and how such restriction will be for the minimum period required. The Human Rights Act embeds a ‘do no harm’ principle in decision-making processes. Engagement with the community on proposed laws and policies will be improved. The combination of a positive duty on public servants to fully consider human rights and enhanced parliamentary focus on human rights will require better engagement with the community in the development of laws and policies, especially if they propose to negatively impact on people’s rights. A failure to ensure such engagement could breach the proposed positive duties, and be considered in remedial processes. 6. The views of persons with disability, Aboriginal and Torres Strait Islander peoples and children will matter under a Human Rights Act. Multiple provisions in the Commission’s model Human Rights Act ensure that engagement and participation is central to all stages of the decision‑making process. Government would be obliged to seek out and fully consider the views of these groups on laws, policies and programs that disproportionately or directly impact them. 7. The proposed participation duty will improve individualised decision making. The Human Rights Act would embed the requirement to ensure the participation of persons with a disability at an individual level by ensuring that supported decision-making processes are adopted in all decisions that directly affect an individual. 8. There are pathways for addressing breaches of people’s rights: The range of mechanisms proposed in the Human Rights Act (from the informal conciliation process of the AHRC, to review of decisions through to court action) will ensure that people have a pathway to address breaches of their rights. 9. The remedial framework under a Human Rights Act is accessible to the most vulnerable in the community. Through the availability of conciliation at the AHRC, administrative review and access to courts, those most affected by human rights breaches will have the ability to hold government to account for breaching their rights. 10. The requirement of reasonable adjustment is built into the administration of justice. This is through the operation of the proposed equal access to justice duty. This would ensure that persons with a disability, Aboriginal and Torres Strait Islander peoples, and people from culturally and linguistically diverse communities, among others, have equal treatment in the operation of the civil and criminal justice FREE & EQUAL: Revitalising Australia’s Commitment to Human Rights systems, and administrative review. 69