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Legislative Assembly for the ACT: 2004 Week 02 Hansard (Tuesday, 2 March 2004) . . Page.. 448 ..

Judges make decisions based upon the facts situations and individual circumstances of the cases before them. At times these decisions have policy implications, but the judicial role is not suited to making decisions on the allocation of limited resources among competing needs, as has been persuasively argued by former and current members of the judiciary during this inquiry. Judicial decision-making and political decision-making are different, and need to remain separate. The legitimacy of both institutions suffers when the roles converge. Parliament should not pass legislation, for instance, determining an individual prisoner’s sentence. Neither should a court determine the program allocations of a government department.

The New South Wales committee made some very interesting recommendations. Finding 1 states:

The Committee finds that it is not in the public interest for the New South Wales government to enact a statutory Bill of Rights.

Recommendation 1 states:

The Committee recommends that the New South Wales Parliament establish a Scrutiny of Legislation Committee similar to the Senate Scrutiny of Bills Committee. This Committee membership should be separate from the current Joint Regulation Review Committee to ensure it can give sufficient attention to its task.

The Committee further recommends that, at least in its first term, the Committee be provided with a budget to contract an academic legal adviser or advisers to assist the Committee with expert advice when required, in addition to the secretariat support necessary for the committee to meet legislative deadlines.

Their second and final recommendation was:

The Committee recommends that the Attorney General amend s34 of the Interpretation Act 1987 (NSW) to confirm the common law position that judges are able to consider international treaties and conventions, to which Australia is a party, when there is an ambiguity in the NSW statute.

Mr Speaker, their main recommendation was that the New South Wales parliament establish a scrutiny of bills committee with an independent legal adviser based on what happens in the Senate. That is exactly what we have. We set up such a committee in 1989 and it has served us well. Members only have to read the Scrutiny of Bills reports that the committee, currently headed by me, gives them every sitting day to appreciate the attention we pay to individual rights and UN covenants. It is all there. That is what the New South Wales committee recommended, and that, Mr Speaker, is where the matter should stand.

Mr Stanhope’s bill is a bill that does not have economic rights, yet it is a bill that enables a lot of issues to be taken to the Human Rights Commission, to the court. It is a bill that certainly hones in on the public service. I was talking to someone just recently about how this bill would affect Quamby. It would seem that there would have to be a complete change at Quamby if the spirit behind this bill were enforced. It is estimated that you would probably have to have six to eight separate units for the detainees. You would

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