Local governments will soon be required to include an additional step in their decision-making processes to consider the effect it will have on human rights.
What is the new Act?
The Human Rights Act 2019 was assented to on 7 March 2019. The purpose of the Act is set out as follows:
- for the protection and promotion of human rights;
- to help build a culture in the public sector that respects and promotes human rights; and
- to promote a dialogue about the nature, meaning and scope of human rights.
The objects of the Act are slated to be achieved in a number of ways. Of particular importance to local government though is the fact that public entities will be required to act and make decisions in a way that is compatible with human rights.
How will this affect Council?
Local governments will be obliged to give proper consideration to human rights in its decision-making processes. In order to comply with the Act, the local government will need to ensure that in its decision-making process it is able to identify the human right/s that may be affected by a decision and consider whether the decision would be compatible with human rights. However, even if a decision is made that is not compatible with human rights it will not be invalid.
A decision will be compatible with human rights so long as it does not limit them. However, limits may be imposed so long as they are reasonable and justifiable. In deciding whether limits imposed are reasonable and justifiable the Act sets out a range of factors which may be taken into account including:
- the nature of the purpose of the limitation, including whether it is consistent with a free and democratic society based on human dignity, equality and freedom;
- the importance of the purpose of the limitation; and
- whether there are any less restrictive and reasonably available ways to achieve the purpose.
The Act protects 23 human rights. From a local government perspective, relevant rights are likely to be:
- Freedom of expression;
- To take part in public life – as an elected representative or a voter;
- Property rights; and
- Privacy and reputation.
The Act is not yet in effect but is expected to come into force around 1 January 2020.