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This is a Bill, not an Act. For current law, see the Acts databases.
2023
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Minister for Human Rights)
Contents
Page
2023
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Minister for Human Rights)
Human Rights (Complaints) Legislation Amendment Bill 2023
A Bill for
An Act to amend the
and the Human Rights Commission Act 2005
The Legislative Assembly for the Australian Capital Territory enacts as
follows:
This Act is the Human Rights (Complaints) Legislation Amendment Act 2023
.
(1) The following provisions commence on the day after this Act’s notification day:
• sections 3 to 7
• section 9
• schedule 1.
Note The naming and commencement provisions automatically commence on
the notification day (see
, s 75 (1)).
(2) The remaining provisions of this Act commence on a day fixed by the Minister by written notice.
Note 1 A single day or time may be fixed, or different days or times may be fixed, for the commencement of different provisions (see Legislation Act
, s 77 (1)).
Note 2 If a provision has not commenced within 6 months beginning on
the notification day, it automatically commences on the first day after that
period (see
, s 79).
This Act amends the
and the
.
4 Notice to Attorney-General and
commission
Section 34 (1) and (2)
substitute
(1) This section applies if—
(a) a question arises in a proceeding in the Supreme Court that involves the application of this Act; or
(b) the Supreme Court is considering making a declaration of incompatibility in a proceeding.
(2) The Supreme Court must not allow the proceeding to continue or make the declaration unless the court is satisfied that—
(a) notice of the proceeding has been given to—
(i) the commission; and
(ii) if the Territory is not a party to the proceeding—the Attorney-General; and
(b) a reasonable period of time has passed since the giving of the notice for the commission and, if required, the Attorney-General to decide whether to intervene in the proceeding.
substitute
(a) direct a party to give notice of the proceeding to the commission and, if required, the Attorney-General; and
substitute
38 Consideration of legislation by relevant Assembly committee
after
bills
insert
and subordinate laws
8 Public authorities must act
consistently with human rights
Section 40B (1), new note
insert
Note A person who is or would be aggrieved by an act by a public authority they believe to be in contravention of this section may make a human rights complaint about the public authority to the commission under the Human Rights Commission Act 2005
, section 41D.
9 Legal proceedings in relation to
public authority actions
New section 40C (3A)
insert
(3A) The respondent to a proceeding started under subsection (2) (a) is—
(a) if the public authority is a public authority mentioned in section 40 (1) (a) to (e) or (g)—the public authority; or
(b) if the public authority is a public employee who is a statutory office-holder—the statutory office-holder; or
(c) if the public authority is any other public employee—the Territory; or
(d) if the public authority is an entity for whom a declaration is in force under section 40D—the entity.
insert
(3A) Without limiting subsection (3), the court may order that a proceeding under subsection (2) (a) be started after the period stated in subsection (3) if—
(a) the person making the claim has made a human rights complaint to the
commission under the
, section 41D about the act within the period stated in subsection (3); and
(b) it is unreasonable in the circumstances for the period to apply to the
proceeding.
Part 3 Human Rights Commission Act 2005
11 Main objects of
Act
Section 6 (2) (j)
after
discrimination complaints
insert
, human rights complaints
12 Disability and community services
commissioner’s functions
New section 21 (1) (c) (vii)
insert
(vii) a human rights complaint;
insert
41D Human rights complaints
(1) A person may complain to the commission about a public authority (a human rights complaint) if the person believes the public authority has acted in contravention of the Human Rights Act 2004
, section 40B (Public authorities must act consistently with human rights).
(2) However, the person must not make a human rights complaint unless the person—
(a) has made a complaint to the relevant person about the contravention claimed; and
(b) either—
(i) has not received a response to the complaint within 45 days after making the complaint; or
(ii) has received a response they consider to be inadequate.
(3) The commission may accept a person’s human rights complaint without requiring the person to comply with subsection (2) if—
(a) the person makes another complaint under this Act in relation to—
(i) the same act that constitutes the contravention claimed; or
(ii) substantially the same circumstances or subject matter of the contravention claimed; or
(b) the commission is satisfied on reasonable grounds that exceptional circumstances justify accepting the person’s human rights complaint.
(4) In this section:
relevant person, for a complaint under subsection (2) (a), means the person complained about as if the complaint is a human rights complaint.
14 What complaints may be made under
this Act?
New section 42 (1) (da)
insert
(da) a human rights complaint;
15 Who may make a complaint under this
Act?
New section 43 (1A)
insert
(1A) For subsection (1) (a), if the complaint is a human rights complaint—an aggrieved person includes a person who would be aggrieved by the act.
16 Final report
Section 81,
new note
insert
Note For final reports in relation to human rights complaints that are closed because the commission considers that conciliation is unlikely to succeed in resolving the complaint—see s 82D.
insert
82D Closing human rights complaints if conciliation unlikely to succeed
(1) This section applies if the commission closes a human rights complaint because section 78 (1) (f) applies.
(2) The final report in relation to the human rights complaint may—
(a) include the substance of the complaint; and
(b) include the actions taken to try to resolve the complaint; and
(c) recommend any action the commission considers the person complained about should take to ensure their acts and decisions are compatible with human rights.
(3) A recommendation need not be limited to matters raised by the complaint being closed.
(4) If a recommendation recommends that action be taken, it must state the reasonable time within which the action should be taken.
(5) The final report is not admissible in a proceeding under the Human Rights Act 2004
, section 40C (Legal proceedings in relation to public authority actions) unless the complainant and the person complained about agree.
(6) This section is additional to the other requirements of this Act for a final report.
18 Third-party reports
New
section 83 (2A)
insert
(2A) A third-party report given by the commission in considering a human rights complaint may recommend any action the commission considers the third party should take to ensure their acts and decisions are compatible with human rights.
insert
86A Publication of information in relation to human rights complaints
(1) The commission may publish information about a human rights complaint that the commission has closed.
(2) The publication—
(a) may include the substance of the complaint; and
(b) may draw on information about the complaint contained in a final report; and
(c) must not include personal information about an individual unless the information has been previously published or the individual consents to the information being published.
insert
Part 8 Transitional—Human Rights (Complaints) Legislation Amendment Act 2023
125 Contravention of Human Rights Act 2004 before commencement day
(1) This section applies if—
(a) a person believes that a public authority has acted in contravention of
the
, section 40B (Public authorities must act consistently with human rights) before the commencement day; and
(b) the person is or would be aggrieved by the act.
(2) The person may make a human rights complaint about the public authority on or after the commencement day.
(3) In this section:
act includes a proposal to act.
commencement day means the day the Human Rights (Complaints) Legislation Amendment Act 2023, section 13 commences.
126 Expiry—pt 8
This part expires 2 years after the day the Human Rights (Complaints) Legislation Amendment Act 2023, section 13 commences.
Note A transitional provision is repealed on its expiry but continues to have effect after its repeal (see Legislation Act
, s 88).
21 Dictionary, definition of act
substitute
act—
(a) includes omission; and
(b) for a human rights complaint—includes a proposal to act.
22 Dictionary, new definition of human rights complaint
insert
human rights complaint—see section 41D (1).
23 Dictionary, definition of person complained about, new paragraph (d)
insert
(d) in relation to a human rights complaint—
(i) if the public authority complained about is a public authority mentioned
in the
, section 40 (1) (a) to (c)—the director-general of—
(A) the administrative unit; or
(B) the administrative unit responsible for the provision of the Act that establishes the territory authority or territory instrumentality; or
(ii) if the public authority complained about is a public authority
mentioned in the
, section 40 (1) (d), (e) or (g)—the public authority; or
(iii) if the public authority complained about is a public employee who is a statutory office-holder—the statutory office-holder; or
(iv) if the public authority complained about is any other public employee—the director-general of the administrative unit in which the public employee is employed; or
(v) if the public authority complained about is an entity for whom a declaration is in force under the Human Rights Act 2004
, section 40D (Other entities may choose to be subject to obligations of public authorities)—the entity.
24 Dictionary, new definition of public authority
insert
public authority—
(a) see the
, section 40; and
(b) includes an entity for whom a declaration is in force under the Human Rights Act 2004
, section 40D (Other entities may choose to be subject to obligations of public authorities).
Schedule 1 Human Rights Act 2004—Technical amendments
(see s 3)
omit
his or her
substitute
their
Explanatory note
This amendment updates language in line with current legislative drafting practice.
[1.2] Sections 16 (2) and 18 (3)
omit
him or her
substitute
them
Explanatory note
This amendment updates language in line with current legislative drafting practice.
omit
his or her
substitute
their
Explanatory note
This amendment updates language in line with current legislative drafting practice.
[1.4] Section 22 (2) (a) to (i)
substitute
(a) to be told promptly and in detail, in a language that they understand, about the nature and reason for the charge;
(b) to have adequate time and facilities to prepare their defence and to communicate with lawyers or advisors chosen by them;
(c) to be tried without delay;
(d) to be tried in person, and to defend themselves personally, or through legal assistance chosen by them;
(e) to be told, if they do not have legal assistance, about the right to legal assistance chosen by them;
(f) to have legal assistance provided to them, if the interests of justice require that the assistance be provided, and to have the legal assistance provided without payment if they cannot afford to pay for the assistance;
(g) to examine prosecution witnesses, or have them examined, and to obtain the attendance and examination of witnesses on their behalf under the same conditions as prosecution witnesses;
(h) to have the free assistance of an interpreter if they cannot understand or speak the language used in court;
(i) not to be compelled to testify against themselves or to confess guilt.
Explanatory note
This amendment updates language, for example, ‘his or her’, in line with current legislative drafting practice.
omit
he or she is
substitute
they are
Explanatory note
This amendment updates language in line with current legislative drafting practice.
omit
he or she has
substitute
they have
Explanatory note
This amendment updates language in line with current legislative drafting practice.
omit
he or she benefits
substitute
they benefit
Explanatory note
This amendment updates language in line with current legislative drafting practice.
[1.8] Sections 27 (1) and 27A (1)
omit
his or her
substitute
their
Explanatory note
This amendment updates language in line with current legislative drafting practice.
Endnotes
1 Presentation speech
Presentation speech made in the Legislative Assembly on 20 September 2023.
2 Notification
Notified under the
on 2023.
3 Republications of amended laws
For the latest republication of amended laws, see www.legislation.act.gov.au
.
© Australian Capital Territory 2023
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