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 making a decision or acting.
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’. Factors to consider when assessing if a limitation is 'reasonable and justifiable' are included in Section 13 of the Act.
The information below is a general guide only. You may wish to seek legal advice if you need more detailed guidance on a specific issue, or consult our Public Entity Toolkit.
The steps listed below are available in an A3 poster you can download and print on demand, along with a companion poster listing the rights protected by the Act and a brief explanation of what they involve.
What is ‘acting compatibly’?
Consider the action 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. They are listed on our website or in a downloadable poster.
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?
Is there a purpose?
What is the aim of the limitation? Does it achieve a legitimate purpose?
Is it reasonable?
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 no to any of these questions, your proposed action or decision is unlikely to be compatible with human rights.
If it is possible to modify your proposal, do so then reassess for compatibility.
If it is not possible to modify your proposal, you will need to document the nature and extent of the incompatibility, and record your process of considering 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.
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 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.