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The ability to allow citizens, through a Bill of Rights, to enforce their basic rights is a fairly powerful sword aimed at governments. We were prepared to have it aimed at us when we were in government, and I would hope that the existing Government would do the same. For example, how a declaration process could work under this legislation is highlighted by some litigation taken under the discrimination legislation when we were in government. This Bill recognises a right to education. It is qualified somewhat but basically sets a premise that there is a right to equality in, and access to, education. The long and contentious issue of the extent to which young people with disabilities should be mainstreamed into the ordinary education system, as opposed to separate but parallel systems, was one that was litigated last year in our human rights process. A somewhat landmark ruling was given. The existing ACT system, which pretty much mirrors the system around Australia, which was found by the Human Rights Commission to have been developed with the best of motives and with the interest of the child at the forefront and which was found by the Human Rights Commissioner to be of benefit to the child, nonetheless was found to be discriminatory because it was a separate process. So, this allows parents, individuals, to get issues focused on and to get inequalities that may otherwise not receive political attention the attention that they seriously deserve.

A Bill of Rights, of course, becomes a dynamic instrument. This legislation is not entrenched; so many of the arguments against setting for all time the rights of individuals do not apply to a Bill of Rights in the form we are proposing, although if we were to adopt a Bill of Rights in this form this year or next year - and I am certainly not urging that this be debated quickly; I think it deserves a lot of consideration, particularly if we take up the option of looking at an environmental rights chapter - in due course I would hope that we would have entrenched Bills of Rights both at the national level and at the State level.

That, it can be said, would allow courts to be superior to parliaments in setting out what can and cannot be done. While that argument may have found a lot of favour some years ago, it is hard to maintain that argument today, because the High Court of Australia, in a series of recent judgments, has shown that it is prepared to find that the Australian Constitution - which most of us would have safely said 10 years ago does not contain a Bill of Rights or does not expressly reflect on individual rights, with certain very narrow exceptions - has implied rights, and it has said that parliaments cannot pass certain laws, even though they may go through parliaments with large majorities. The best example was the political advertising issue. The Parliament passed a law banning political advertising, but the High Court found that there was an implied right of free speech in the Commonwealth Constitution.

So, there are basic rights. The question is: Should they be found by unelected judges in the house across the road, the High Court of Australia, or should parliaments and citizens debate them so that, through a democratic process, they can be enumerated in a way that incorporates input. Given that there are to be fundamental rights, surely it is better that they come up through a democratic process, be debated in parliaments and then be enacted.

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