Acting and making decisions in accordance with human rights

The Human Rights Act 2019 places obligations on public entities to be compatible with human rights when acting or making a decision.

What is ‘acting compatibly’?

Under the Act, ‘compatible with human rights’ means an act or decision does not limit a human right, or limits a human right only to the extent that is ‘reasonable and demonstrably justifiable’.

Section 13 of the Act provides guidance on when human rights may be limited and the factors to be considered when assessing if an act or decision is compatible with human rights.

Human rights should only be limited after careful consideration, and in a way that can be justified in a free and democratic society based on human dignity, equality, freedom and the rule of law.

Downloadable resources are available here to assist public entities to meet their obligations under the Act.

Assessing for compatibility with human rights

All acts and decisions made by public entities need to be assessed for compatibility with human rights under the Act.

Consider the act or decision you are proposing.

Step 1: Which rights are relevant?

Consider each right protected by the Act to see which are relevant to your situation. Rights may be broader than they first seem.

Step 2: What is the impact?

Will your action or decision limit or restrict any of the rights you've identified?

If no, your action or decision is likely to be compatible with human rights.

If yes, or if you're unsure, proceed to Step 3.

Step 3: Consider whether a limitation of rights is reasonable and justifiable by asking the following questions.

Is it lawful?

Is there a legal authority or framework which allows you to limit a person's rights? If you can't identify a law or regulation, you may not be able to limit rights.

Is there a purpose?

What is the aim of the limitation? Does it achieve a legitimate purpose?

Is it rational?

Will what you are proposing effectively achieve your purpose?

Is it necessary?

Is this the least restrictive way to achieve your purpose?

Is it fair and balanced?

Do the benefits outweigh the harm caused by the limitation?

If you answer yes to all these questions, your proposed act or decision is likely to be compatible with human rights.

If the act or decision appears incompatible, modify it if possible then reassess for compatibility.

If the act or decision limits human rights, but is assessed as compatible, then you will need to document your justification for the act or decision, and the process used to consider human rights.

The Act specifies that if a public entity does not follow their obligations to act compatibly with, and give proper consideration to, human rights, this does not make the act or decision invalid. There is also no offence committed by a person who actions or makes a decision without complying with these obligations.

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When do these obligations not apply?

These obligations do not apply if a public entity could not have acted any differently (or made a different decision) because of another State or Commonwealth law, or a statutory provision. Public entities must give effect to legislation even if it is incompatible with human rights. In other words, the Act does not override the other legal obligations public entities have.

They do not apply to businesses operating in the private sector (unless they are providing functions of a public nature on behalf of government - for example, a private company operating a prison).

They do not apply to a body established for religious purposes, if the act is done in accordance with the religion and is necessary to avoid offending the religious sensitivities of the people of that religion.

They also do not apply to a private act or decision.

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