good governance practices for the protection of human rights

has requested advice in relation to national matters, including the Anti-Terrorism
Bills 2004 and 2005, and the complementary Terrorism (Extraordinary Temporary
Powers) Bill 2005.
The Territory’s government agencies dealing with some of the most vulnerable
individuals have engaged with the Human Rights Act. Corrective Services held
a forum in July 2004 to increase awareness of human rights within the prison
context. The Human Rights Commissioner and her Office have conducted an
audit of a juvenile detention centre, and identified a number of practices which
need to be reconsidered in the light of the Human Rights Act. The Health Department
in partnership with the Human Rights Office also held a forum in June
2005 to explore the impact of the Human Rights Act on mental health service
provision. A review of the Mental Health (Treatment and Care) Act 1994 is under
way to address potential inconsistencies with human rights.
Community education has been a priority of the Human Rights Office, which has
provided training to members of the general public as well as to people with a
legal background. The Office also publishes an electronic quarterly newsletter,
which describes the initiatives of the Office and summarizes recent case law.
There has not been a flood of litigation since the adoption of the Human Rights
Act. By July 2005, it had been cited in ten reported judgements of the Capital
Territory’s Supreme Court, one judgement of the Court of Appeal and one decision
of the Administrative Appeals Tribunal. These cases deal with a variety of
subjects, ranging from criminal law and protection orders, to child protection,
mental health proceedings, public housing and defamation. The Human Rights
Act is also regularly mentioned in bail applications before the Supreme Court
as the rights to liberty and security of person are relevant to the interpretation of
the Bail Act 1992. Finally, the Supreme Court did not issue any declarations of
incompatibility in 2004 or 2005.
Impact on human rights and challenges
The biggest impact of the Human Rights Act has been its influence on the way
government policy and legislation are formulated and adopted. The government
is conscious of the Human Rights Act when developing new bills and the courts
are aware of it when interpreting legislation. The Capital Territory administration
also needs to take it into consideration when developing policy.
There is a general limitation to the implementation of the Human Rights Act
owing to the inability to use it in relation to powers under federal laws, such as
the treatment of asylum-seekers under migration legislation. In some cases this
inability results from the fact that there is no Capital Territory evidence act, while
there is, for example, the Federal Evidence Act 1995. Also, the Australian Federal
Police provides both national and local services, and can use federal rather than
Capital Territory powers when arresting and charging defendants.
Critics of the Human Rights Act point out that it does not provide for the justiciability
of human rights and does not protect economic, social and cultural rights.
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