3. A Human Rights Act for Australia Act could not validly include a provision empowering federal courts to make DOIs. In light of this uncertainty, the Commission has considered a number of options to address potential constitutional concerns. It does not propose incorporating a formal DOI power for the courts to apply, and instead suggests an alternative approach. In the course of applying the interpretive clause in the Human Rights Act, a court may, as part of its reasoning process, indicate whether a statute can be interpreted in line with the Human Rights Act or whether the statute demonstrates a parliamentary intention to depart from Australia’s human rights obligations. If a court finds that it is not reasonably possible to interpret a statute in a way that is consistent with the Human Rights Act, this would usually be indicated in the reasons for judgment, regardless of whether a ‘formal’ DOI power exists. The Commission proposes that when a court has found a parliamentary intention to override human rights contained in the Human Rights Act, the Attorney‑General should be required to trigger a process for reviewing the law in question. This will require the Attorney‑General’s Department to have processes in place to monitor cases that arise under the Human Rights Act. It will not require a formal DOI to be issued by the court to Parliament. 3.8 Cause of action, complaints and remedies The integration of human rights considerations into the decision-making processes of public authorities should make public servants more aware of the impacts of their decisions, and therefore help to prevent human rights breaches in decision making and policy design. However, sometimes better processes and education will not be enough, and breaches of human rights may occur. In those circumstances a Human Rights Act should provide a cause of action, a complaints pathway, and enforceable remedies. The Commission recommends that each right should have a direct cause of action, and an associated range of remedies. If the complaint does not resolve, often due to Government deciding not to participate in conciliation, then the Commission reports on the complaint and decides whether a human rights breach has occured. The Commission makes recommendations for the Government to act where rights are breached, but there are no obligations for the Government to act. There is no pathway to court under this existing complaint process. Under a Human Rights Act, individuals will continue to be able to make complaints to the Commission but rather than such complaints referring to international instruments, it would be by reference to the rights enumerated in the Human Rights Act. If complaints are not resolved, people will be able to pursue outcomes in the courts. This is consistent with how federal discrimination law operates, by providing a clear pathway to bring claims before the courts alleging a breach of these rights. The operation of the cause of action and remedial pathways is illustrated in Figure 6. FREE & EQUAL: Revitalising Australia’s Commitment to Human Rights 63