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

Legislative Assembly for the ACT: 2004 Week 02 Hansard (Tuesday, 2 March 2004) . . Page.. 570 ..

and social rights in national legal systems, another objection often made to protecting economic and social rights in national legal systems is that they are not justiciable in the way of civil and political rights and would require courts to become embroiled in political and economic issues.

For example, the inclusion of economic and social rights in the 1996 South African Constitution was challenged as a violation of the framework principles set out in the 1994 Interim Constitution. It was argued that these rights were not universally accepted fundamental rights and that they would require the judiciary to decide on budgetary matters, thus breaching the principle of separation of legislative, executive and judicial powers. The South African Constitutional Court rejected this challenge. It did not regard the task of protecting civil and political rights as qualitatively different from that of protecting economic and social rights. The court noted that the proper observance of civil and political rights may have similar budgetary implications to protection of the latter. It stated that, at the very minimum, socio-economic rights can be negatively protected from improper invasion.

The duty of government to protect social and economic rights under the 1996 South African Constitution is defined as one to take reasonable legislative and other measures within its available resources to achieve a progressive realisation of those rights. In other words it is about being reasonable and, unfortunately, we are not seeming to hear from the opposition any understanding of the capacity for reasonableness to apply.

MR SMYTH (Leader of the Opposition) (10.58): I will try to be reasonable. Clause 28 may end up being the most important clause in the whole of the bill, because clause 28 is in fact the enabling clause and at the same time the “governor valve”.

Going back to clause 16, I had discussions with the officials about this earlier. It says that everyone has the right to freedom of expression and that that right includes the freedom to seek, receive and impart information and ideas of all kinds. For instance, when you take the issue of, say, paedophilia and the conduct of that sort of information across the internet you could claim as a defence that under 16 (2) you have a right to transmit, receive and impart information and ideas of all kinds. But you have to take it in the context of clause 28, which sets the reasonable limits. Clause 28 is then caught up in enabling, almost, the International Covenant on Civil and Political Rights within this act. Without reading all three together, you run the risk of not understanding what the bill is attempting to do. If you read the Chief Minister’s speech when he tabled the bill, you will see that he attempts to make that clear on pages 6 and 7. At the end of that section he says:

I reiterate, lest there is any confusion on the point, that the bill does not invalidate other territory laws, nor does it create a new cause of action.

If, at any stage, you have the benefit of holding the Attorney-General’s speech, the bill and the ICCPR in your hand, perhaps you can understand it if you have taken the time to put the pieces together. My criticism would be that most people do not understand that and often do not read the law in the context of other covenants that might govern the way it is being set up inside our act—and therein lies the problem.

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