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Legislative Assembly for the ACT: 2004 Week 02 Hansard (Tuesday, 2 March 2004) . . Page.. 530 ..

The bill is based on an interpretative model, which has drawn on the recent experience of New Zealand and the UK but is adapted to our local needs. It is a model that represents the third way, one that gives effect to civil and political rights in domestic law but which also recognises the traditional importance of the sovereignty of parliament. Its purpose is to increase public accountability in the public service and strengthen our democracy.

Lord Falconer of Thoroton, Secretary of State for Constitutional Affairs in the UK, spoke recently about the United Kingdom Human Rights Act. He said:

We didn’t bring in the Human Rights Act to get a litigation culture. We brought it in to get a human rights culture.

The ACT bill will promote human rights by making rights more transparent and requiring them to be taken into account in the development and interpretation of the law. It will encourage all Canberrans to see themselves as having rights as well as the responsibility to respect the rights of others.

The bill recognises that human rights inhere in every human being and that, although human rights belong to everyone, they have a special significance for indigenous people. It is appropriate—and the government is very happy—that Professor Larissa Behrendt, director of the National Institute of Indigenous Law, Policy and Practice, was able to participate as a member of the consultative committee and have so much active interest and support from the local indigenous community.

The catalogue of rights set out in part 3 of the bill is closely drawn from the International Covenant on Civil and Political Rights. These are fundamental principles that underpin our system of law and government, which we, as part of the international community, have committed ourselves to.

There is a view that the bill emphasises individuals at the expense of the community. This is an understandable concern, but it is one that misunderstands both the philosophy and the practice of human rights. Rights have never existed in a vacuum. A man alone on a desert island does not need rights because there is no one there to infringe them; nor does he have to think about his responsibility to others.

The concept of rights has emerged over centuries out of the struggle to control abuses of executive power and to define rights and responsibilities—the responsibility not just of government to its people but also of individuals to communities and vice versa. Both the covenant and the bill recognise that rights are shaped in a social context and that there are justified limitations. The test is that those limits must be set down in law and must be reasonable and demonstratively justified in a free and democratic society. It is a standard formulation based on a well-established test used in Europe, Canada and New Zealand.

It is not a device to allow the government, or the legislature, to retreat into majoritorianism; nor would we expect judicial discretion to slide in that direction. Limitations must be read restrictively and be justifiable and proportionate. In this way, the bill provides the framework for a principled way to work out the balance between rights and responsibilities.

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