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. 61