Australian Capital Territory Numbered Acts Australian Capital Territory Numbered Actsinsert
Part 5A Obligations of public authorities
40 Meaning of public authority
(1) Each of the following is a public authority :
(a) an administrative unit;
(b) a territory authority;
(c) a territory instrumentality;
(d) a Minister;
(e) a police officer, when exercising a function under a Territory law;
(f) a public employee;
(g) an entity whose functions are or include functions of a public nature, when it is exercising those functions for the Territory or a public authority (whether under contract or otherwise).
Note A reference to an entity includes a reference to a person exercising a function of the entity, whether under a delegation, subdelegation or otherwise (see Legislation Act, s 184A (1)).
(2) However, public authority does not include—
(a) the Legislative Assembly, except when acting in an administrative capacity; or
(b) a court, except when acting in an administrative capacity.
40A Meaning of function of a public nature
(1) In deciding whether a function of an entity is a function of a public nature , the following matters may be considered:
(a) whether the function is conferred on the entity under a territory law;
(b) whether the function is connected to or generally identified with functions of government;
(c) whether the function is of a regulatory nature;
(d) whether the entity is publicly funded to perform the function;
(e) whether the entity performing the function is a company (within the meaning of the Corporations Act) the majority of the shares in which are held by or for the Territory.
(2) Subsection (1) does not limit the matters that may be considered in deciding whether a function is of a public nature.
(3) Without limiting subsection (1) or (2), the following functions are taken to be of a public nature:
(a) the operation of detention places and correctional centres;
(b) the provision of any of the following services:
(i) gas, electricity and water supply;
(ii) emergency services;
(iii) public health services;
(iv) public education;
(v) public transport;
(vi) public housing.
40B Public authorities must act consistently with human rights
(1) It is unlawful for a public authority—
(a) to act in a way that is incompatible with a human right; or
(b) in making a decision, to fail to give proper consideration to a relevant human right.
(2) Subsection (1) does not apply if the act is done or decision made under a law in force in the Territory and—
(a) the law expressly requires the act to be done or decision made in a particular way and that way is inconsistent with a human right; or
(b) the law cannot be interpreted in a way that is consistent with a human right.
Note A law in force in the Territory includes a Territory law and a Commonwealth law.
(3) In this section:
"public authority" includes an entity for whom a declaration is in force under section 40D.
40C Legal proceedings in relation to public authority actions
(1) This section applies if a person—
(a) claims that a public authority has acted in contravention of section 40B; and
(b) alleges that the person is or would be a victim of the contravention.
(2) The person may—
(a) start a proceeding in the Supreme Court against the public authority; or
(b) rely on the person's rights under this Act in other legal proceedings.
(3) A proceeding under subsection (2) (a) must be started not later than 1 year after the day (or last day) the act complained of happens, unless the court orders otherwise.
(4) The Supreme Court may, in a proceeding under subsection (2), grant the relief it considers appropriate except damages.
(5) This section does not affect—
(a) a right a person has (otherwise than because of this Act) to seek relief in relation to an act or decision of a public authority; or
(b) a right a person has to damages (apart from this section).
Note See also s 18 (7) and s 23.
(6) In this section:
"public authority" includes an entity for whom a declaration is in force under section 40D.
40D Other entities may choose to be subject to obligations of public authorities
(1) An entity that is not a public authority under section 40 may ask the Minister, in writing, to declare that the entity is subject to the obligations of a public authority under this part.
(2) On request under subsection (1), the Minister must make the declaration.
(3) The Minister may revoke the declaration only if the entity asks the Minister, in writing, to revoke it.
(4) A declaration under this section is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation Act.