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Legislative Assembly for the ACT: 2003 Week 12 Hansard (18 November) . . Page.. 4248 ..

MR STANHOPE (continuing):

The covenant and related instruments, case law and materials which form part of the jurisprudence of civil and political rights, would inform the interpretation of the rights protected by the bill. And I reiterate, lest there is any confusion on the point, the bill does not invalidate other territory law, nor does it create a new cause of action.

If, in the ordinary course of litigation, the question is raised in the Supreme Court about whether a territory law is consistent with human rights and the Supreme Court is unable to conclude that the law is consistent, the court will have the power to issue a declaration of incompatibility. The bill is abundantly clear that a declaration does not invalidate either primary or subordinate legislation. Nor would it make the operation or enforcement of the law invalid or in any way affect the rights or obligations of anyone.

The purpose of the declaration is to alert the government and the Assembly and indeed the community to an issue of incompatibility. It is appropriate that this power be vested only in the higher court which has a supervisory function over lower courts and tribunals, although all courts and tribunals are engaged in the process of interpretation of our laws.

If the government is not a party to the proceedings, the court must notify me, as Attorney-General, if it is considering making a declaration. This is to guarantee that the government has the opportunity to put argument if the attorney considered it necessary to do so in the same way that currently exists when constitutional law questions are raised. If a declaration is issued it will be presented to the Assembly, and within six months the attorney will provide a written response also for presentation to the Assembly. A declaration does not bind the government or the Assembly to change primary or subordinate legislation. Nor would we expect that a declaration would be issued except in relatively rare cases.

The facility for a declaration of incompatibility is a vital component of the dialogue model this bill seeks to establish. While preserving parliamentary sovereignty, the declaration will function as a signal to the government and the Assembly. It will make an important contribution to rational and coherent debate about human rights issues.

As Attorney-General, I will also have the discretion to intervene in any proceedings before any ACT court and certain ACT tribunals where a question concerning the application of the Human Rights Act arises. In practice, the discretion to intervene will only be exercised where there is a public interest in doing so.

The bill does not take away the power of the Assembly to pass laws that are inconsistent with human rights as set out in the Human Rights Act. However, as Attorney-General, I would be required to scrutinise all government bills to ensure they are consistent with fundamental human rights. A statement of compatibility for publication in the Assembly will be issued. If it is necessary to limit or depart from human rights standards we will explain why it is necessary to do so.

The scrutiny of bills committee or another committee nominated by the Speaker is obliged to report to the Assembly about human rights issues raised by bills presented to the Assembly. This will apply to both government and non-government bills. To ensure the business of the Assembly is not disrupted or subjected to unnecessary delays if for

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