The ACT Human Rights Act 2004 and the Commonwealth Anti-Terrorism Act (No 2) 2005: a triumph for federalism or a federal triumph?

Author/s (editor/s):

Byrnes, Andrew
McKinnon, Gabrielle

Publication year:


Publication type:

Working paper

Peer review publication:

A. Byrnes & G. McKinnon, ‘The ACT Human Rights Act 2004 and the Commonwealth * Anti-Terrorism Act (No 2) 2005: A Triumph for Federalism or a Federal Triumph?’ in: Fresh Perspectives on the “War on Terror”, eds. M. Gani & P. Mathew, ANU E Press 2008, pp361-377.

In 2004 the Legislative Assembly of the Australian Capital Territory enacted the first Bill of Rights adopted by any jurisdiction in Australia. The Human Rights Act 2004 (HRA) which entered into operation on 1 July 2004, is a modest endeavour by comparison with many overseas models. The ACT HRA is a statutory Bill of Rights closely modeled on the United Kingdom’s Human Rights Act 1998 and is thus not entrenched as a constitutional charter; it incorporates a limited range of human rights (the classic civil and political rights contained in the ICCPR), it is primarily an interpretive instrument, and it does not explicitly provide for remedies for violations of the HRA (although it does empower the Supreme Court to make a declaration of incompatibility in cases where the Court is unable to construe a statute in accordance with the human rights guaranteed by the Act). The HRA is intended to promote a dialogue on human rights between the various arms of government, but preserves the final say on disputed rights to democratically elected politicians, and envisages that the most important way for the HRA to have an impact is to bring about cultural change in government.

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