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Legislative Assembly for the ACT: 2004 Week 02 Hansard (Tuesday, 2 March 2004) . . Page.. 531 ..

I want to say once again, to those who have been disappointed that economic, social and cultural rights have not found a place in this bill, that the government has not abandoned economic, social and cultural rights as a framework for government policy. The question we had to face was: is this the time to give these rights legal effect? We have explained the reasons for this already, but let me reiterate that we will re-examine this issue when the legislation is reviewed. In the meantime, the Social Plan sets out our priorities and is a clear statement of the government’s objectives.

At the heart of the scheme is the statutory duty to interpret territory laws by reference to human rights and give preference to a meaning that is consistent with those rights. This is a new rule of statutory construction. It is not just a search for the intention of parliament; it is a direction to search for a meaning that is consistent with human rights insofar as that is possible.

We expect a beneficial interpretation to be given to human rights and that rights will be read into existing and future laws. But the bill does not allow the courts to rewrite legislation against the clear intention of the Assembly or to strike down a statute that contravenes a human right. The task was to craft a formula that reconciles the ordinary rules of statutory construction with the new direction to interpret more consistently with human rights.

Much has been said about this new rule: it is too wide and will result in the rewriting of legislation, or it is too weak and the judiciary will avoid declaring a law as inconsistent. Clause 30 is central to the success of the legislation. To ensure that the bill gives effect to the intended policy I will move an amendment to subclauses 30 (1) and (2) this evening to clarify and simplify the wording.

If it is not possible to construe the law in a way that is consistent with human rights, the Supreme Court will have the discretion to issue a declaration of incompatibility. This is a measure of last resort available when it is not possible to give a meaning that is consistent with human rights. The Scrutiny of Bills Committee has speculated that conferring this power in the Supreme Court may be constitutionally invalid. The committee suggests that it amounts to a conferral of a non-judicial power, which is incompatible with the exercise of territory and federal judicial power. Statutory interpretation is surely quintessentially an exercise of judicial power. That is what the courts are for—the power to issue a declaration or make a judicial finding of law more visible to the Assembly and the public.

The Court of Appeal in New Zealand has recognised that declaring the compatibility of legislation is inevitable where a conclusion must be reached on whether legislation is consistent with their bill of rights. In other words, the power to issue a declaration is incidental to the judicial function of statutory interpretation. In fact, in 2001 the New Zealand government formalised the procedure for declarations of incompatibility under its Human Rights Act, which deals with discrimination. The United Kingdom model also provides for declarations of incompatibility.

What the ACT Human Rights Bill does not do at this stage is provide a direct right of action in the Supreme Court. Rather, the bill will make available, in litigation that is

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