Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . .

Legislative Assembly for the ACT: 2004 Week 02 Hansard (Tuesday, 2 March 2004) . . Page.. 567 ..

decides cases. That is totally different, and a different sort of reasoning from the reasoning we use here in terms of legislation is used.

I will quote part of the scrutiny report. My colleague, Mr Smyth, has quoted quite large slabs most effectively in relation to this clause and the very real problems with judicial interpretation and what the judiciary is being forced to do. There is one very good judgment I will reiterate, which I think is terribly important. Sir Gerard Brennan, a most capable Chief Justice of the High Court, argued that:

To vest in courts the function of review of legislation against rights standards would bring about a massive constitutional change, which would erode a corresponding change in the judicial function and judicial method.

That was Sir Gerard Brennan in The impact of a bill of rights on the role of judiciary: An Australian response. He delivered a paper to a conference entitled Australia and human rights: Where to from here? at the ANU in July 1992. He stated at page 15 of his paper:

At the end of the litigating day the translation of political, social, and ethical values into legal principles must be articulated by the judge. He or she cannot avoid giving effect to his or her values in determining whether an impugned law or executive act is obnoxious to a bill of rights and unjustifiable in the collective interest.

There are real problems in relation to that. The scrutiny report, specifically in relation to this clause, said:

The non-judicial function which this bill would confer on the Supreme Court of the territory is the power in clause 28 to make a non-binding declaration on the invalidity of a territory law. Whether such a power may be validly vested in the Supreme Court is not the point to which the committee now draws attention.

It seems there is some issue in relation to that. It continues:

Rather it is that it appears arguable that this power is incompatible with the judicial function of the Supreme Court, and given that the rationale for the incompatibility theory is the protection of the liberty of the citizen …

There is an issue as to whether clause 28 is an undue trespass on personal rights and liberties. The basis for this kind of argument is indicated by what the consultative committee said about the role of the Supreme Court under its proposals. In this respect the bill follows the proposals. The consultative committee said at 4.23:

A declaration of incompatibility (under clause 28) is a significantly strong and appropriate enforcement mechanism to underpin the dialogue approach of the ACT Human Rights Act. Human rights issues may involve complex questions about morality and the allocation of public resources. These are questions that should properly be finally resolved by the legislature with the assistance and advice of the judiciary.

There is emphasis added to the words “with the assistance and advice of the judiciary”. The explanatory statement accepts that the bill is based on the interpretive and dialogue method—page 6. It continues:

Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . .