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Legislative Assembly for the ACT: 2004 Week 02 Hansard (Tuesday, 2 March 2004) . . Page.. 455 ..

outside the Chinese Embassy on ACT land when the Chinese Trade Minister was in Canberra.

As I have said before, the perception of whether human rights are adequately protected in our community depends very much on whether a person is vulnerable to rights abuses. The dialogue around social and economic rights would have had important normative and educative value for public, private, and community sectors. The argument that somehow it would spin out of control does not stand up to scrutiny. Any decisions made are always informed by relative capacity and in the context of promoting the general welfare of a democratic society. Few rights are absolute, and reasonable limits on rights are justifiable in a free and democratic society. I find it surprising anyone would have a problem with a statement of right to health, education, shelter, and cultural life. The legislature is still supreme in this model. There is no substance in allegations that somehow through the Human Rights Act we are transferring control to judges.

Looking at experience in other jurisdictions and the proposed act here, which has a co-operative approach to policy making, the consequences are positive in that such legislation improves governance and policy making. It creates an opportunity for review and improvement of existing legislation as has happened in Hong Kong and the UK as well as guiding new legislation and policy. It is clear that in the UK, whose Human Rights Act 1998 contains the right to property and the right to education, and in other jurisdictions where claims have been made relating to social, economic, or cultural rights, there is a significant body of jurisprudence which would provide assistance and interpretation. It is incorrect to suggest this is not so. Canadian and UK courts have respected the role of legislators. South Africa also has much to offer here. Byrnes from ANU and Maxwell from Owen Dixon Chambers say:

Any assessment of the likely impact of the Human Rights Act must be informed by the considerable body of jurisprudence which has developed over the last 30 years regarding the interpretation of human rights guarantees. This invaluable body of precedent on which Australian courts already draw comprises decisions of the European Court of Human Rights and other international human rights courts and tribunals, decisions of the United Nations, human rights treaties, bodies, and decisions of national courts interpreting human rights standards.

The evidence does not support the claim that jurisdictions have heavily awarded damages for breaches of human rights guarantees. Also, very few damages awards were made in New Zealand and all for very modest amounts. In summary, this bill is more like running a magnifying glass over our legislation. It provides a moral costing. It can highlight problems before they arise by framing arguments in a more accountable way. It is nothing to be afraid of. Democracy works because people take agency and put arguments up. But the disempowered are less likely to do this—the homeless and the marginalised. Human rights are not, as sometimes caricatured, egotistical and individualistic with no capacity to recognise the common good. It is much more about communitarianism, and maybe that’s why the Liberals don’t like it. It’s much more about communitarianism than individualism, requiring above all an understanding of common ethical values.

Responsibility is inherent in the notion of rights. If human rights are conditions necessary for people to live lives of dignity and value there is a responsibility to support these conditions, not just government and the public authorities but the whole

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