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

Legislative Assembly for the ACT: 2004 Week 02 Hansard (Tuesday, 2 March 2004) . . Page.. 575 ..

Finally, foreign jurisprudence may persuade the ACT Legislative Assembly that a human right to a healthy environment should be taken seriously. A right to a healthy environment has already been affirmed by courts in several other countries, including Costa Rica, Argentina, Chile, Ecuador, Peru, India, and Pakistan. In the Philippine case of Oposa v Secretary of the Department of Environment and Natural Resources, the Supreme Court held that the constitutional right to a balanced and healthful ecology is a self-evident and actionable human right. Deciding in favour of the plaintiffs, the Court noted that this right “concerns nothing less than self-preservation and self-perpetuation … the advancement of which may even be said to predate all governments and constitutions. As a matter of fact, these basic rights … are assumed to exist from the inception of humankind.” It concluded that “The right to a balanced and healthful ecology carries with it the correlative duty to refrain from impairing the environment.”

I move amendment No 1 circulated in my name [see schedule 5 at page 605].

Subclause (2) reiterates the standard rules for use of extra material in interpreting ACT laws. My amendment would insert a note to make this clear. Although the note does not change the meaning, without it, it looks like (2) (b) is a particularly pernicious restriction on the full consideration and interpretation of human rights. To limit consideration by noting the undesirability of prolonging proceedings without compensating advantage reads like an emphasis on compensation over clarity of the law and justice. This was a particular concern because this act will not provide direct compensation from court cases. Its effect is through drawing attention and, through that attention, to create a sense of obligation in the Assembly and the executive to resolve any threats to human rights.

MR SPEAKER: The question is that Ms Tucker’s amendment be agreed to.

Amendment agreed to.

Clause 31, as amended, agreed to.

Clause 32.

MS TUCKER (11.18): I move amendment No 2 circulated in my name [see schedule 5 at page 605].

This amendment would remove subclause 32 (3) (b) which states, “A declaration of incompatibility does not affect the rights or obligations of anybody”. I am moving this amendment because I believe this clause goes too far in trying to appease people who are concerned that the bill might have an effect in changing unjust laws or practices. I argue that there is a clear obligation on the Assembly and the executive at the very least to reconsider the legislation or the practice which has led to the statement of incompatibility.

MR STEFANIAK (11.19): I will speak generally on clause 32. The Scrutiny of Bills Committee commented on clause 32. It stated:

The effect of clause 32, reading sub-clauses 32(2) and (3) together, is to vest a non-judicial power in the Supreme Court of the Territory. The power is non-judicial because the declaration of incompatibility does not affect the rights or obligations of anyone—paragraph 32(3)(b).

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