On The Australian Capital Territory Human Rights Act

This thesis has conducted research on the Australian Capital Territory Human Rights Act. On the level of federal law in Australia, there are no specific clauses focusing on "rights protection". On the level of states law, the ACT Human Rights Act is the first Act to specify protecting human rights. This act occupies a pivotal position in the history of human rights protection in Australia by means of guaranteeing individual's human rights and limiting its powers. It is a milestone of the rights protection march and a symbol of maturity of the rights protection consciousness. The ACT Human Rights Act has absorbed other countries'human rights protection experiences and gradually enriched its contents. Based on these, the ACT Human Rights Act possesses its distinctive characteristics. This paper has researched on the ACT Human Rights Act by using analytical method except the introduction and conclusion parts.The introduction part of this paper explains the significance of choosing this research topic, the research status quo in China and abroad on this topic, the framework of the thesis and the research method. This thesis mainly uses the view of historical development and law text to get into this topic. Trying to get inspiration from the ACT Human Rights Act and which could be a reference for perfecting human rights protection in China. Overseas countries, especially Australia have a long history in the research and practice of human rights protection. However, the research on human rights protection acts is still a blank area in China. In this sense, this thesis fills the blank in the research of this area. This paper starts analysis with introducing the background of human rights protection in Australia, then the legislative progress of the ACT and the main contents of it and gives an explanation of the effects in the Capital Territory and the nation.The first chapter sets out the background of the adoption of the ACT Human Rights Act. The Human Rights Actwas significantly affected by UK and American Law. It adopted the Common Law system as well as Separation of Powers theory. Then, this thesis analysed the history of the efforts made of human rights protection from Australian Constitution, common law and regulation. Since the protection strengths from the Constitution are limited, the effects of common law and regulations are significant. However, there are limitations of common law in protecting human rights, so it is urgent to have a human rights protection law. The discussion on whether the federal level human rights protection law is necessary has lasted for several years. On one hand, the human rights protection law could systemize, clarify and make human rights protection lawful. On the other hand, it could set restrictions on the rights protection range and break "separation of the three powers" system. These arguments are the key factors of pushing the legislation of the ACT human rights Act.There are always different opinions on human rights legislation; however, as the capital of Australia, Canberra set an example and issued the first Human Rights Act. The second chapter discussed the framework of the ACT Human Rights Act. The ACT Human Rights Act referred previous human rights legislation, which also absorbed many other international human rights acts. Given that different levels of previous human rights act, the ACT Human Rights Act has its unique features. In the form of law-setting, the ACT human right act absorbed many advantages, including demonstrations and limitations from other countries (the USA, Canada, New Zealand and UK). Absorbing and referring to the existing human right act legislation is the crucial feature of the ACT Human Rights Act. In terms of certain rights protection, the ACT Human Rights Act converted many international human rights acts, which then enable their legal effect in local area. The aforementioned part consists of the main section of the ACT Human Rights Act. It could grab the basic content of the ACT Human Rights actthrough discussing this framework and rights of those not involved in, which is mainly about economy, social and cultural rights and they are also needed to be protected in the amended act.Chapter three gives an overall analysis of the rights of the ACT Human Rights Act protection and their application in the judicial practice. It is not hard to find that rights protection is the core of the ACT Human Rights Act and what it protects is the civil rights and political rights. This paper has selected five representative rights with high litigation frequency among twenty protected rights by The ACT Human Rights Act and they are fair trial, rights to liberty and security of person, the right of privacy and reputation, protection of family and children and rights in the criminal proceeding. Then, this paper researches how the judge explains and employs relevant provisions in the judicial practice to protect the human rights.Chapter four discusses the interpretation clause of human rights, the restricted clause and the public authority,which composes of the important content of the ACT Human Rights Act. There are many rights under the protection of the ACT Human Rights Act, but the illustrations of human rights are infinitive. There are always limitations accompany with rights protection, all kinds of rights have their boundaries. Hence, it is critical to set limitations on human rights to maintain the balance of law. The interpretation clause specifies that the judge should accord with the bill of human rights in the interpretation of law. The ACT Human Rights Act has specified the boundaries and obligation of the public authority and listed the specific action against the human rights protection. The public authority i.e. the government should be regulated by the restricted clause of human rights in the practice of human rights protection and interpretation. Human rights may be subject only yo reasonable limits set by Territory law that can be demonstrably justified in a free and demoncratic society. However, in setting the limitations, all kinds of factors should also be taken into consideration, including the nature of the rights, the purpose of restriction, the boundary and the effect and so on.The fifth charter discusses effects of the ACT Human Rights Act. These effects are not only on capital area but other states. The ACT Human Rights Act reconstructs the power's structure in capital area and breaks the balance of "separation of the three powers". It established a "dialogue model" between legislative authority, judicial authority and public authority. The dialogue model enhanced the relationships and interactions between these three authorities as well as building a solid foundation for human rights protection. Another effect of the ACT Human Rights Act is that it sets an example for other states, following the capital area, some states are considering of having their own human rights protection act. Such as Victoria States has publicized its Charter of Human Rights and Responsibilities, New South Wales and North Territory are fasting their legislation progress. With the more attentions on aboriginals' human rights protection makes the federal government see positive effects of the ACT Human Rights Act. The federal government of Australia has publicized its Australia' Human Rights Framework and it was be seen as a signal and preparation of a national human rights act. It had shown the future trend of human rights protection in Australia.The last chapter mainly illustrates the enlightenment of our domestic human rights protection. We can learn lessons from Australia human rights protection from the legislation, the judiciary and the administration. In terms of the legislation, we can adopt step by step method to protect the human rights. In terms of the judiciary, we should bring the human rights protection into the protection of law and provide legal support and judicial guarantee for the human rights protection. In terms of the administration, the national human rights institution should be established to realize the guarantee of the human rights protection.