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Legislative Assembly for the ACT: 2004 Week 02 Hansard (Tuesday, 2 March 2004) . . Page.. 520 ..

incompatible with human rights legislation, and what is the outcome of it? Absolutely nothing.

It comes back to the Attorney-General. The Attorney-General has, I think, six months to inform the Assembly. What will we do with it then? Zip, nil, nix, nada, nothing. It is the ultimate irony. We have the Chief Minister saying that he is going to stand up for human rights, but we are going to pass a bill that has no penalty and has no effect because, if it wants, the Assembly can pass bills that actually are in violation of human rights and, when the judiciary comes back and tells us that we got it wrong, we can ignore it. That’s effective; that’s good law making! It is not even sensible law. It is not law that is logical and it is not law that will have any significant impact on protecting people’s human rights.

The sadness of it all is that some of us will pat each other on the back later tonight and go outside and tell everybody that their rights are much better protected than they were before this bill was passed, but the reality is that it is nothing but fairy floss. People may think that they are going to bed living in a safer society because Jon Stanhope, Chief Minister and Attorney-General, has passed the Human Rights Bill, but he has passed a toothless tiger. It is Clayton’s protection. It is tokenism at best and, at its worst, it is just bad law; it is not logical law.

The reason I go on like I do is that what it does is that it actually asks the judiciary to pass commentary on the laws that we make and one of the great strengths of Westminster and the British system of government is, indeed, the system of separation of powers from the Assembly to the executive and the executive to the judiciary. I do not know how many people have bothered to read the report of the scrutiny of bills committee, but the committee focused a large amount on clause 28. The Chief Minister covered it on pages 8 and 9 of his speech.

The interesting thing is that we are setting up this system whereby a law can be commented upon by the judiciary. I quote from page 7 of the Chief Minister’s speech:

…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.

So we are going to create a law that allows it to be referred to or commented upon by the Supreme Court, to come back to the territory, to the Assembly, to the Attorney-General, with absolutely no cause of action. But in doing so, in asking the courts to comment on the laws we pass in this way, in a non-judicial way, we actually erode the separation of powers and the confidence that the public generally have in the court system. What will happen is that the courts will make a comment and that comment will come back to the Assembly. The Assembly can then choose to do what it wants with the comment, but in the process you have destroyed the degree of respect that I think most people hold for the court system.

On page 5 of the scrutiny of bills committee’s report there is a section entitled “Should judges review the legality of laws against rights standards”. It comes pretty clearly to the conclusion that they should not because that is not their job. I will read a few selective quotes. The report states:

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