Canberra leap-frogs Victoria on conduct

The other half of the ACT’s brand new amendments to its Human Rights Act involves the conduct mandate. Until now, the ACT was way behind Victoria, because it had no conduct mandate at all (although some have argued that it kinda did.) From the start of next year, it will have the same basic conduct mandate as Victoria (and the UK.) But there are three very important differences.

First, the ‘other laws’ defence, which ensures that these human rights statutes come second to every other law, is different. In Victoria, the defence applies where another law means that a public authority ‘could not reasonably have acted differently.’ The ACT, by contrast, follows the UK approach. It’s conduct mandate:

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.

It seems to me that (a) is much narrower than Victoria’s defence, while (b) is potentially wider.

Second, the ACT completely lacks Victoria’s defence for ‘an act or decision of a private nature’. So, the ACT’s Ministers and public servants had better be careful when they’re hanging out in their backyard or shopping at the local Supabarn.

Third, and most importantly, the ACT doesn’t have Victoria’s tortured remedies provision. Instead, the Canberrans again follow the UK, except for damages:

(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.

Cripes! This surely makes the ACT courts, always by far the most liberal in Australia, also its most powerful (albeit within the small ponds that are the Territory and the conduct mandate.)  Again, these changes have no transitional provisions, so stand by for a wild ride from 1st January 2009.

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