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Legislative Assembly for the ACT: 2004 Week 02 Hansard (Tuesday, 2 March 2004) . . Page.. 450 ..

• By involving the Legislative Assembly, the courts and tribunals, and a proposed Human Rights Commissioner in ensuring, as far as practicable, that all territory laws, practices and procedures are compatible with human rights, and that they are interpreted and administered accordingly.

• By creating a new cause of action against public authorities who act or engage in conduct that is incompatible with human rights.

The Supreme Court will have a central role to play, having exclusive jurisdiction to determine whether or not a law is compatible with human rights, and whether or not a public authority has acted incompatibly with such rights.

Most media attention has focused on the power of the Supreme Court to make a declaration of incompatibility. When this occurs, the Attorney-General must table a written response in the Assembly. It is then up to the Assembly to decide whether or not the law should be changed so as to make it compatible with human rights. This procedure is designed to overcome the common objection that a Bill of Rights subverts the democratic process by transferring to the unelected judiciary the ultimate power to decide controversial human rights-issues that are better left in the hands of elected politicians.

While the Bill could achieve this in part, I see considerable danger of the judges becoming politicised and of the authority of the court being potentially weakened. This might lead to demands for a change in the manner in which judges are appointed, with persons nominated for appointments being subjected to searching questioning as to their personal views on contentious socio-political issues.

If the human-rights bill were to be enacted, the Supreme Court could be called on to decide, for example, whether legislation permitting abortion is compatible with the “inherent right to life”. In my view, the judge would be in danger of being drawn into public controversy, whichever way he or she were to decide the case. If the judge made a declaration of incompatibility, expectations might be generated that the bill would be changed. If the Assembly was not prepared to do so, the principle of parliamentary supremacy might have been upheld, but at the risk of weakening respect for the court and its decision-making authority.

I regard that risk as unacceptable.

He then talked about some matters which do not pertain to this bill. He concluded:

I also agree with those who argue that a Bill of Rights focuses too much “on individual rights at the expense of social responsibility, community interest and social coherence”, and that the proposed bill could encourage a culture where individual responsibility is discouraged, in favour of claiming rights through litigation.

More fundamentally, I am not convinced that a small body politic like the ACT, with a small population and limited finances, can afford the legal, administrative and other costs likely to be involved in implementing and enforcing the proposed Act. No other state or territory has adopted a Bill of Rights and, as recently as 1998 in Queensland and 2001 in New South Wales, parliamentary committees recommended against it. In my view, the ACT should not go it alone.

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