Human Rights Act 2004

This section applies if a person—

claims that a public authority has acted in contravention of section 40B; and

alleges that the person is or would be a victim of the contravention.

The person may—

start a proceeding in the Supreme Court against the public authority; or

rely on the person’s rights under this Act in other legal proceedings.

A proceeding under subsection (2) (a) must be started not later than 1 year after the day (or last day) the act complained of happens, unless the court orders otherwise.

Without limiting subsection (3), the court may order that a proceeding under subsection (2) (a) be started after the period stated in subsection (3) if—

the person making the claim has made a human rights complaint to the commission under the Human Rights Commission Act 2005, section 41D about the act within the period stated in subsection (3); and

it is unreasonable in the circumstances for the period to apply to the proceeding.

The respondent to a proceeding started under subsection (2) (a) is—

if the public authority is a public authority mentioned in section 40 (1) (a) to (e) or (g)—the public authority; or

if the public authority is a public employee who is a statutory office-holder—the statutory office-holder; or

if the public authority is any other public employee—the Territory; or

if the public authority is an entity for whom a declaration is in force under section 40D—the entity.

The Supreme Court may, in a proceeding under subsection (2), grant the relief it considers appropriate except damages.

This section does not affect—

a right a person has (otherwise than because of this Act) to seek relief in relation to an act or decision of a public authority; or

a right a person has to damages (apart from this section).

Note See also s 18 (7) and s 23.

This section does not apply to a claim that a public authority has acted in contravention of section 40B if the contravention claimed is—

that the public authority acted in a way that is incompatible with the human right set out in section 27C (Right to a healthy environment); or

in making a decision, the public authority failed to give proper consideration to the human right set out in section 27C.

To remove any doubt, subsection (8) does not prevent a person making a claim in relation to another human right, even if the subject matter of the claim or part of the claim is the same, similar or related to the subject matter of a claim to which subsection (8) applies.

Example

A person may claim a public authority acted in a way that is incompatible with the human right set out in s 9 (Right to life) and the subject matter of the claim may include an exposure of the person to an environmental risk to their health that is life threatening.

Subsections (8), (9) and this subsection expire on 1 October 2028.

In this section:

public authority includes an entity for whom a declaration is in force under section 40D.