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ACT Human Rights Office

Human Rights and Discrimination Commissioner: Dr Helen Watchirs

‘The ACT Human Rights Act 2004: its Impact & Potential’

Australian National University - Toyota Public Lecture

22 February 2005

Introduction

In 2002 the ACT Chief Minister and Attorney-General, Jon Stanhope, appointed the ACT Bill of Rights Consultative Committee, chaired by Professor Hilary Charlesworth.  The Committee conducted a thorough public consultation program and in 2003 concluded that some form of bill of rights was appropriate and desirable in the ACT: ‘While highly visible abuses of human rights are not commonplace in the ACT, rights are currently protected in a partial and piecemeal manner under Commonwealth and ACT law.  A bill of rights would improve the protection of rights and also provide an accessible statement of the rights that are fundamental to a life of dignity and value.’  The Committee recommended that the bill of rights should be designed to encourage a ‘dialogue’ among the three branches of government with parliament having the ‘last say’ therefore preserving parliamentary sovereignty. This model would respect constitutional and democratic boundaries – the judiciary, which interpret and enforce laws; the legislature, which enact and amend statutes; and the executive, which administers and implements laws.

The ACT Human Rights Act 2004 (‘HR Act’) came into force on 1 July 2004 making the ACT the first jurisdiction in Australia to have a Bill of Rights (but the last common law jurisdiction to enact one). The Act provides an opportunity to build a human rights culture in the ACT community, but it does not apply to Federal matters.  The HR Act is an ordinary ACT law, and is most similar to the UK Human Rights Act 1998 and New Zealand’s Bill of Rights 1990, rather than the constitutionally entrenched United States or Canadian models.  The rights enshrined in the HR Act are substantially derived from the United Nations International Covenant on Civil and Political Rights, and includes the right to life, recognition and equality before law, family and children, privacy and reputation, taking part in public life, of minorities, liberty and security, humane treatment in detention, criminal process rights, fair trial, protection against torture, cruel, inhuman or degrading treatment, and freedoms of movement, association, assembly, thought, expression, conscience, religion and belief. The moral compass of the Act is contained in the Preamble” ‘Human rights are necessary to live lifes of dignity and value’. The Act has been criticised from both ends of the spectrum from being a ‘Clayton’s Bill’ (i.e. ineffectual), to being a litigious feast for lawyers (NSW Premier Bob Carr’s view).

Key features of Human Rights Act

(1) Interpretative model

Section 30 of the HR Act provides a new rule of statutory construction ‘in working out the meaning of a Territory Law, an interpretation that is consistent with human rights is as far as possible to be preferred’.  Therefore all public officials, statutory office holders, the judiciary and the public are required to adopt an interpretation of the law that is consistent with human rights, unless the Legislative Assembly clearly intended to legislate inconsistently with human rights.  Responsibilities are inherent in human rights as stated in the Preamble: ‘This Act encourages individuals to see themselves, and each other, as the holder of rights, and as responsible for upholding the human rights of others.’ A Private Member’s Rights and Responsibilities Bill was defeated in 2004 as it made inalienable rights contingent – such an approach has been unsuccessful at the international level as it is considered oppressive. There is no direct right of access to litigate under the Act, but human rights arguments and interpretations may be used in any legal proceedings, for example in criminal proceedings, or in civil cases under the Administrative Decisions (Judicial Review) Act 1989 – in the UK half of its AD (JR) cases involve human rights arguments (despite a direct right of access to the courts, unlike the ACT Act).

(2) Pre-enactment Scrutiny

The Act provides a mechanism in section 37 for pre-legislative scrutiny by requiring the Attorney-General to issue compatibility statements (like a human rights impact assessment) for every Bill presented by the government to the Legislative Assembly.  If the Bill in question is inconsistent with the HR Act, then this must be explicitly stated. This mechanism attempts to mainstream human rights considerations in the policy development process (centralised in the Department of Justice and Community Safety), because the statement must be an uppermost standard against which proposals is measured. This centralised model of scrutiny is used in NZ and over thirty Bills have been found to be incompatible (as Private Member’s Bills also require compatibility statements). However, in the UK the specific Minister introducing the Bill performs the scrutiny function, and only three Bills have been characterised as not being in compliance with the HR Act. The ACT Legislative Assembly Standing Committee on Legal Affairs is also required to examine Bills, including Private Member’s Bills, and report to the Assembly about human rights and other issues raised in Bills.

(3) Supreme Court’s Declaration of Incompatibility

Section 32 of the Act gives the Supreme Court the power to issue a formal declaration of incompatibility with human rights, if it is not possible to interpret legislation to be consistent with the specified human rights.  This section does not allow the court to strike down the legislation found to breach rights standards, but the Supreme Court must notify the Attorney-General and the Human Rights Commissioner if it is considering making such a declaration. Once issued the registrar of the Supreme Court must send a copy of the declaration to the Attorney-General, who is required to table it in the Legislative Assembly within 6 sitting days of receiving it, and table a written response within 6 months after that.  There is no legal obligation to change the law, but the notification mechanism attached to the declaration will ensure that the issue is seriously considered and debated in the Legislative Assembly. 

It is unlikely that many Declarations of Incompatibility will be issued.  Only 15 declarations have been issued in the UK in nearly 5 years.  The biggest influence, however, will be in courts and tribunals ‘reading down’ legislative provisions to be consistent with the HR Act – this could include striking down delegated legislation (regulations or rules) if the enabling provision in the primary legislation is read down to be consistent with a right.  A simple example is the case Mendoza v Ghaidan  [2002] EWCA Civ 1533 where the UK Court of Appeal read down the words ‘as his or her husband and wife’ to ‘as if they were his or her husband and wife’ to avoid discriminating against same sex or de facto couples in respect of succession to protected rent tenancy.

(4) International Jurisprudence

Section 31 of the HR Act allows the court, tribunal or person interpreting a Territory law to have regard to international law and jurisprudence, such as foreign judgments.  This provision is very necessary with the absence of a regional human rights regime in the Asia Pacific.  In this respect, treaties that Australia is a party to will be relevant, for example, the UN Convention on the Rights of Children and the Convention Eliminating All Forms of Discrimination Against Women. Also relevant will be Treaty Committees, such as the Human Rights Committee that monitors the ICCPR and considers communications (eg complaints, such as Toonen from Tasmania) under the Optional Protocol. Australia has been criticised for not signing and ratifying new Optional Protocols to two UN Conventions (women and torture) that would enable further communications to be considered by treaty bodies.

(5) Proportionality test

Another central provision in the HR Act is section 28 which subjects restrictions on rights to a proportionality test: ‘Human rights may be subject only to reasonable limits set by Territory laws that can be demonstrably justified in a free and democratic society’.  Whether a limit is reasonable depends upon whether it is proportionate to achieve a legitimate aim.  A good example of applying the proportionality test is the current consideration of an exposure draft Bill to allow emergency ECT to involuntary mental health patients without their consent where it is necessary to save their lives, or prevent irreparable harm. I think that the first criterion may be proportional, but doubt that the lesser threshold in the second criterion is. Proportionality requires that the limitation:

1. achieves the objective in question;
2. the means, even if rationally connected to the objective, should impair as little as possible the right or freedom in question; and
3. there must be a proportionality between the effects of the limitation and the objective.  The more severe the deleterious effects of a limit, the more important the objective must be if the limit is to be reasonable and demonstrably justified.

The Role of the ACT Human Rights Office

The Human Rights Commissioner’s mandate under section 41 of the HR Act is to:

(a)    advise the Attorney-General on anything relevant to the operation of the HR Act.  In 2004 I provided several advices on issues requested by the Attorney-General, such as the length of time of detention of remandees, prisoners’ right to freedom of expression, the Federal Anti-terrorism Bill 2004, and indigenous shared responsibility agreements (this issue may arise in Jarvis Bay). I have also provided comments on Cabinet Submissions that may contain Bills, such as recent amendments to the Crimes Act 1900 transferring power to decide the accused’s fitness to plead from the Mental Health Tribunal to the courts;

(b)   provide education about human rights and the Act; and

(c)    review and report to the Attorney-General on the effect of laws for human rights compliance – copies of reports must be tabled in the Legislative Assembly (subject to privacy and public interest considerations that may require the report to be amended, which I will stridently defend). I intend to report on conditions of detention at the Belconnen Remand Centre this year, then followed by a human rights audit of mental health (many NGOs around Australia regard the system of care reviewed by the Burdekin Report of 1993 as not having improved). On 2 July 2004 ACT Corrections held a seminar on implications of the Human Rights Act – relevant issues discussed then, and that will be considered in my Report include:

·        objects of new prison laws - aim to rehabilitate, not just punish/incapacitate;

• loss of liberty, not all human rights, eg dignity;
• restrictions on the right to vote (ACT Electoral Act 1992 tied to Commonwealth Act 1918) breach right to take part in public life (s.17);
• segregation of accused/convicted (ACT prisoners in NSW – detain in BRC), adults/children (s19 & 20);
• Behavioural Management Regime unlawful (NZ: Taunoa);
• freedom of expression (s16) - journalist interviews;
• inhuman & degrading treatment (s.10) – isolation;
• right to life (s.9) – protect from violent/racist cellmates (UK: Edwards, Amin);
• privacy (s.12) – strip searching prisoners/visitors and surveillance.

The Commissioner also has the power to intervene in proceedings before a court or tribunal, subject to their leave – this probably will be in situations where the Supreme Court has notified my Office and the Attorney-General that it is considering issuing a declaration of incompatibility, or cases before the Court of Appeal where the human rights issues are obvious and clarified (as opposed to evidential or procedural issues arising in the course of an ordinary trial at first instance, without notice). The ACT contrasts with the UK Commission that will not be established until 2006, despite the 1998 Act coming into effect in 2000. The UK White Paper - Fairness for All: A New Commission for Equality and Human Rights (2004) highlights the need for a centre of expertise to monitor, champion and promoter of human rights that can educate the public about the principles behind the legislation and attempt to develop systemic change.

As part of the role to provide human rights education to the community, the Human Rights Office has developed training modules for public education programs that were held last year and will be held again this year, as well as responding to requests to speak at conferences and seminars. I also take my role as an independent statutory office-holder seriously and will enter public debate by issuing relevant press releases. The Human Rights Office presented an inaugural Human Rights Primary School Artwork Award last year to a 12 year-old student from Red Hill Primary School that we have used in our leaflet on the HR Act, posters and the 2003/04 Annual Report. 

On International Human Rights Day (10 December 2004) we convened the first Human Rights Community Forum, which was attended by many NGOs (including Shelter, ACTCOSS, Welfare Rights and Legal Centre, Women’s Legal Centre, ADACAS, Mental Health Community Coalition, YWCA, Youth Coalition, Council of the Ageing, Unions ACT, Amnesty International, the Aboriginal Justice Centre, Women Lawyers Association and Prisoner’s Aid), private practitioners, interested statutory office-holders (such as the Victims of Crime Coordinator and the Office of the Director of Public Prosecutions) and human rights academics.  I intend to work collaboratively with communities and agencies to prioritise strategic areas that need to be addressed through litigation, or existing laws that need to be audited because they may be inconsistent with human rights and require legislative reform, for example, the Mental Health (Treatment and Care) Act 1994.

The Human Rights Office can assist individuals and organisations with human rights inquiries, but does not have a complaints handling role for individuals, as is the case under the Discrimination Act 1991.  Engagement with the community is central to improving the human rights of vulnerable populations whose rights have traditionally lagged behind the general population, such as people with a Non-English Speaking Background, Aboriginal and Torres Strait Islanders, people with disabilities (including mental illness), the aged and people living in poverty. 

It is interesting to note that the Federal government has established a National Committee on Human Rights Education. However, the government’s National Framework for Values Education in Australian Schools (2005) do not use specific human rights words, but instead: ‘tolerance, understanding, respect, responsibility, social justice, excellence, care, inclusion, trust, honesty, freedom and ethics’. Similarly at international and regional levels, particularly in the Asia Pacific, aid programmes increasingly use euphemistic terms instead of human rights, such as ethics and ‘good governance’.

Institutional impact of HR Act on government and the community

Government departments’ acceptance of the HR Act has been uneven, but agencies are beginning to work together. For example an Inter-Departmental Committee has been established that is chaired by the Department of Justice and Community Safety to facilitate compliance of policies, legislation and practice with the Act, such as requiring a section on human rights issues in draft Cabinet Submissions. The Department has also issued a Plain English Guide to the HR Act and will soon be issuing Scrutiny Guidelines on its website to assist agency decision-makers draft policies and laws that will be human rights compliant. There is also an obligation for agencies to report on measures they have taken to encourage respect, protection and promotion of human rights in their Annual Reports.  A breach of the standards in the HR Act in executive decision-making can provide a basis for review by the courts under existing remedies, such as the Administrative Decisions (Judicial Review) Act 1989 (‘AD(JR) Act’), where a decision-maker exercises a discretion, performs a duty or makes an administrative decision as an error of law, is otherwise contrary to law, or fails to take into account a relevant consideration.

The UK Audit Commission’s Report of 2003 found that cultural change had been achieved mostly in public authorities that were exposed to human rights litigation (eg the police), but half of the agencies still had no systematic arrangements to achieve compliance. A major challenge is to move service providers from a charity model to a human right framework. The British Institute of Human Rights highlighted this lack of government agencies using a human rights framework for delivery of services. It’s 2004 Report, Something for Everyone: The Impact of the Human Rights Act and Need for a Human Rights Commission focuses on the need for public education and advocacy in the UK. A Public Law Project has noted that half of recent AD(JR) cases in the UK concern human rights (mainly in the areas of immigration and asylum, and mental health), but arguments are not well-developed and tend to be tacked on without adequate research.

The HR Act provides NGOs with an advocacy tool to lobby the government for reforms in areas of concern to the community. In the ACT litigants can raise human rights arguments in the course of existing proceedings, whether against the government (for example, in a prosecution where the right to a fair trial is relevant) or another person (for example, under defamation law the right to freedom of expression is relevant). I have given seminars to the legal profession (for example, the Law Society and the Women Lawyers’ Association of the ACT), and the National Judicial College has provided training for the judiciary. The Human Rights Office can provide relevant information and education, but we need community support for our outreach work, particularly with vulnerable populations that are difficult to reach.

Litigation

In the UK and NZ there was an initial flurry of litigation when their respective Human Rights laws came into force, but this settled down once precedents were set. Areas that are likely to arise in the ACT based on these UK and NZ precedents are in relation to: fair trials; search and seizure powers; absolute and strict liability in cases where a sentence of imprisonment can be made; legal and persuasive burdens of proof (as opposed to evidential); mental health – in the UK three declarations of incompatibility have been made in this area on the grounds of placing the onus of fitness for discharge on involuntary patients (R(H) v London NE Region Mental Health Review Board (2001)), removing a forensic patient to hospital detention after serving the non-parole period of a sentence (R(D) v Secretary of State for the Home Department (2002) and allowing patients’ wishes to be respected when appointing the ‘nearest relative’ for purposes such as notification (R(FM) v Secretary of State for Health (2003)).

Lord Carswell in the latest issue of the Australian Law Journal described the impact of the Human Rights Act 1998 on the UK judiciary and profession as ‘seamless’, and that the avalanche of litigation expected did not occur. On 11 February 2004 the Director of Public Prosecutions, Richard Refshauge, appeared before the ACT Legislative Assembly Standing Committee on Legal Affairs, which was considering Annual Reports, and commented that the HR Act had not caused a deluge of litigation, nor was it a criminals’ charter, but that its influence was ‘pervasive’ in his work, eg bail. I expect that there will be issues with the Australian Federal Police exercising Commonwealth, rather than ACT, legislative powers, which means that the ACT HR Act is not applicable. Also the ACT operates under the Evidence Act 1995 (Commonwealth), and we may need to enact mirror legislation (as has occurred in the States) so that the HR Act applies.

In our small jurisdiction there have been four Supreme Court cases and one case in the Administrative Appeals Tribunal (AAT) that cite the Human Rights Act.  Our HRO website has case summaries of recent ACT decisions referring to the HR Act: http://www.hro.act.gov.au/casesdecisions.html.

R v YL [2004] ACTSC 115 (27 October 2004)

In this case the accused was charged with assault occasioning actual bodily harm and, in the alternative, committing an offence of common assault on her then six-year old stepson.  Counsel for the accused challenged the child’s competence to give sworn evidence, and expressed concern about the likelihood of the child suffering significant stress if forced to give evidence against his stepmother.  An eminent child psychiatrist gave evidence that there was a risk that the child would suffer substantial stress if forced to give evidence, and there was at least some risk that he might ultimately suffer significant harm.  The child’s lawyer objected to the child giving evidence on behalf of the prosecution under s.18 of the Evidence Act 1995 (Commonwealth). The Crown submitted that the child should be compelled to give evidence, and

attempted to tender a nolle prosequi to decline to proceed further and bring the prosecution to an end.  This would have had the effect of aborting the trial allowing the Crown the opportunity to obtain leave to test any of judge’s rulings on appeal, and could allow for subsequent prosecution of the accused on fresh information. 

Crispin, J held that s.11 of the HR Act (the rights to protection of the family and of the child) and s.30(1) allowed him to refuse to exercise coercive powers to compel the seven-year old child to enter court and give evidence against his will.  The judge also refused to grant a nolle prosequi on grounds using the interpretative provisions of the HRA (s.30(1)) that it would be an abuse of process - the accused has the right to have a decision made at the end of the trial under ss.21 (fair trial) and 22(2)(c) of HR Act (unreasonable delay in criminal proceedings).

Szuty v Smyth [2004] ACTSC 77 (1 September 2004)

In this case the plaintiff worked for a real estate agency, after unsuccessfully contesting the 1998 Legislative Assembly elections.  She had approached the defendant, then Minister responsible for housing, as an advocate for a tenant of ACT Housing.  At the end of a meeting with the defendant, the plaintiff gave him her business card, as the tenant did not have one, with a ‘caveat’ that she would not be involved in any sale of property to ACT Housing, due to the conflict of interest.  The defendant sent a letter of complaint to the Real Estate Institute of the ACT concerning the plaintiff without mentioning the ‘caveat’.  Soon after, the plaintiff’s employer advised her that she was to be retained only on a commission basis.

Higgins, CJ found that the defendant defamed the plaintiff, but the defence of qualified privilege succeeded, while the defence of fair comment did not.  In order to defeat the defence of qualified privilege (if the statement is made in the performance of any legal, moral or social duty or interest, to a person having a corresponding duty or interest to receive it), malice needs to be established, that is, an intention to cause injury to the plaintiff.  Higgins, CJ could not conclude positively, on the balance of probabilities, that the letter complained of was primarily motivated by malice.

The judge found the defence of ‘fair comment’ to be supported by s.16 of the HR Act (freedom of expression).  However, there is a reasonable protection for reputation under s. 12(b) of the HR Act – ‘everyone has the right not to have his or her reputation unlawfully attacked’.  He rejected the defence of fair comment after finding that the facts in the letter were not correctly stated – in particular there was no reference to the plaintiff’s disclaimer when she handed the defendant her business card at the end of their meeting. 

Firestone v The Australian National University [2004] ACTSC 76 (1 September 2004)

Mr Firestone challenged a decision made by a Magistrate to issue a ‘workplace protection order’ against him on the request of the ANU that prohibited him from contacting employees at the ANU, except through a solicitor, and he was restrained from harassing, threatening or intimidating them.  The Magistrate held that if the appellant contacted employees away from the workplace, they would need to apply for personal protection orders.  The appellant’s appeal challenged the scope of the order granted – whether it was the ‘least restrictive of the personal rights and liberties’ under s.6 of the Protection Orders Act 2001, which accorded with the interpretative principles required by s.30(1) of the HR Act.  He specifically referred to s.13 (freedom of movement) and s.15(2) (freedom of association) of the HR Act. Higgins, CJ dismissed the appeal since the order had expired and no breach action was pending, and found it pointless to redraft the order.

The Queen v O’Neill [2004] ACTSC 64 (30 July 2004)

In this case an Australian Federal Police officer on motorcycle duty directed the accused to stop his vehicle, but the vehicle reversed into the officer’s motorcycle and injured him.  The accused was charged with using an offensive weapon (the vehicle) against the officer, likely to endanger the officer’s life, for the purpose of preventing or hindering his lawful apprehension.  The accused was further charged with assaulting the officer, occasioning him actual bodily harm. The accused elected to have a trial by a judge alone rather than a jury.

Connolly, J found that this situation amounted to ‘double jeopardy’ – under this legal principle a person may not be tried twice for the same offence. There is a specific statutory basis for double jeopardy in s.24 of the HR Act.  A verdict of guilty was entered on the first count on the indictment, so the second count was not considered, as it arose from precisely the same facts, that is, the intentional reversing of a motor vehicle into the officer. The accused was found guilty on the first count, and Connolly, J did not proceed to the second count.

ACT Administrative Appeals Tribunal Cases

Merritt and Commissioner for Housing [2004] ACTAAT 37 (29 September 2004)

The applicant sought review by the Tribunal of a decision of the respondent to refuse her application for transfer from Early Allocation Category (EAC) 2 to 1. The applicant has two children under five and has been a tenant of ACT Housing since April 2000.   She had been allocated housing in Illawarra Court, which she argued was an unsuitable place to bring up young children.  In this environment there was regular fighting between tenants, drunkenness and drug use, broken glass, and used syringes in stairwells and in the park where the children played.  There was also an incident in December 2002 when an abandoned car was set alight causing her family to flee the apartment due to ‘dense, toxic smoke’. The Tribunal determined that none of the circumstances for statutory interpretation set out in s.30(3) of the HR Act applied (working out the meaning of a Territory law).  The Tribunal found that there was no evidence that the applicant’s family was not being afforded protection by society, or that the children were not being afforded the protection needed without distinction or discrimination.  To grant the applicant’s request would likely have the consequence that some other family or child in more urgent need of accommodation was unable to be assisted, which could itself constitute a breach of s.11 of the HR Act.

The Future

The HR Act provides that it will be reviewed after its first year of operation to consider issues such as whether it should be extended beyond civil and political rights to include economic, social and cultural rights (as exists in some other jurisdictions, for example, South Africa) and environmental rights.  The Act will also be reviewed more generally in five years.  This staged approach to implementing human rights protection will be assisted by an Australian Research Council Linkage project between the Centre for International and Public Law at the Australian National University and the Department of Justice and Community Safety.

Advocates in the ACT need to recognise that, according to international standards, the economic, social and cultural rights such as housing and health are being seen as increasingly justiciable, but subject to available resources and progressive realisation. Relevant South African cases include Grootboom CCT 11/00 (2000), where the Constitutional Court found that the state has the duty to provide shelter where primary parental duties cannot be fulfilled (where the child is either removed, orphaned or abandoned by family, for example, if the child has HIV). The court held that a housing program that did not cater for cases of desperate and immediate need (that is, squatters), could not fulfil their obligation to take ‘reasonable measures’.  In the case Soobramooney v Minister of Health (Kwazulu-Natal) CCT 32/97 (1997) the Constitutional Court found that the State was not required to provide dialysis, as guidelines not prioritising treatment of terminal illnesses maximised benefits to more patients in a state with an overspent health budget. More recently in the case Minister for Health v Treatment Action Campaign CCT 8/02 (2002) the Constitutional Court found that the government was required to provide single doses of the antiretroviral drug Nevirapine in the public health sector to HIV-positive pregnant women and their babies at birth, in order to prevent intra-partum HIV transmission, including reasonable measures for testing and counselling.

Other Australian jurisdictions are closely monitoring the progress of the HR Act, and hopefully the ACT experience will influence other jurisdictions to adopt similar bills of rights.  The Victorian Justice Statement (2004-2014) commits the government to consider a Charter of Rights and Responsibilities, and several Victorian agencies have attended ACT forums on the HR Act. In South Australia a Private Member’s Bill of Rights was introduced but failed. In March 2005 the ACT hosts an Australasian national conference on ‘Legislative Scrutiny in a Time of Rights Awareness’. The lack of a national human rights frame of reference has resulted in recent High Court decisions authorising the indefinite detention of stateless persons, i.e. Al Khafaji and Al-Kateb, although in both cases the Federal government recently issued visas. At the International Criminal Congress in Canberra in 2004 CJ Spiegelman (NSW) favourably referred to our ACT Human Rights Act, and Julian Burnside, QC (winner of the 2004 HREOC Human Rights Medal) called it a ‘beacon’ of hope.

Within the ACT various NGOs and government agencies are developing their own specific Charters of Rights, for example in the areas of health, mental health, housing, disability and carers – I encourage these targeted initiatives which generate ownership and relevance to these communities, as long as these Charters at least meet, or are above, the HR Act benchmarks. Another recent development is the planned Human Rights & Service Review Commission, under which the Human Rights Office will merge with other complaints Commissioners – it is due to be operational by legislation commencing in July 2005.

Despite being ground-breaking legislation, various criticisms have been made of the ACT HR Act – like the UK and NZ models, it does not include economic, social and cultural rights. However, civil and political rights issues are likely to be raised by laws impacting on economic, social and cultural rights, such as the new Education Act 2004. The HR Act does not provide a direct access to the courts or require government agencies to incorporate human rights standards in their ‘acts and practices’ as in the UK, but the HR Act does enable litigants to raise human rights arguments in any relevant proceedings in courts or tribunals. Also a normative effect on decision-making is expected to further develop a culture of human rights by agencies with legislative mandates to implement the HR Act, as well as to minimise their exposure to litigation.  The challenge for the Human Rights Office will be to develop a proactive responsiveness to human rights issues that are raised in the ACT. The Office’s work has already started to engage the community in debate by raising human rights awareness in our daily lives. No law can be a magic bullet for implementing human rights and solving complex social justice issues, but it can be a workable step forward in strengthening the rule of law and democracy.