It is against the law for a public authority to act in a way that is incompatible with the human rights set out in the Charter or to not give proper consideration to these rights when making decisions (section 38).
The Charter provides an extensive but non-exhaustive definition of the term public authority (section 4). While this guidance is a positive feature of the Charter, it remains a complex provision to interpret.
At its most basic, public authorities include state government departments, local governments, public officials, statutory bodies and other organisations that have functions of a public nature performed on behalf of the state, for example public hospitals and government schools.
Since the Charter came into effect there has been considerable discussion and debate about its breadth and application.
The review function
A public authority may request the Commission review its programs and practices to assess their compatibility with the Charter (section 41(c)). Reviews may be requested for a number of reasons and at different points in the life cycle of a policy or practice.
For example a public authority may request a review to:
- have an independent assessment of whether a practice, policy or program is compatible with the Charter
- provide input at the time new policies or programs are being implemented or developed
- assist with the implementation of new legislation or functions
- review existing human rights training or compliance strategies.
How the Commission conducts reviews
The Commission’s approach to conducting a review is consultative and flexible.
The scope of a review is developed in consultation with the public authority seeking the review to agree upon which areas of operation and policy will be included.
Terms of Reference for the review may include:
- purpose of the review
- methodology of the review process
- outputs from the review process
- whether the findings and recommendations of the review will be publicly disclosed by the Commission and/or the authority
- whether interviews, surveys and observations will be anonymous
- process for access to relevant staff, documentation and resources to be provided to the Commission during the course of the review
- process for development and approval of findings and recommendations
- resource commitment (including staff and financial resources) by the Commission and the authority for the conduct of the review.
The conduct of the review may involve:
- on-site visits to observe management, staff and/or members of the public that use the services of the public authority
- interviews and surveys of management, staff and/or members of the public that use the services of the public authority
- a review of written policies, procedures, process maps and relevant legislation
- legal and policy research in relation to human rights, the business of the public authority and the views of members of the public that use the services of the public authority.
Reviews requested by the Attorney-General
The Commission also undertakes reviews at the request of the Attorney-General.
The Attorney-General can, at any time, request the Commission undertake a review of the effect of statutory provisions and the common law on human rights set out in the Charter (section 41(b)).
The Commission is responsible for undertaking the review and providing written advice to the Attorney-General.