Page 2216 - Week 07 - Wednesday, 16 August 2006
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The most telling thing, I think, in this report is to be found in the comments attributed to Professor David Feldman, Rouse Ball Professor of English Law at the University of Cambridge and Miegunyah Distinguished Fellow at the University of Melbourne, when he highlighted that, in an age of contemporary international developments, human rights are under threat and politicians get cold feet when it comes to legislating to protect human rights. It is, I think, very easy for any politician to become afraid of being seen to be soft when issues around, say, preventing or ameliorating the effects of a terror attack come into the legislative arena, and it is all too easy to say that we must be as tough as possible regardless of our human rights obligations, regardless of our responsibilities to protect the rights of citizens, and so on. That is probably the issue that Professor Feldman was referring to in his lecture, as reported here in the committee report.
The point he goes on to make, according to the committee report, is that politicians should not be afraid and politicians should recognise that they have a legitimate role in questioning executives when they take decisions to try to limit the rights of citizens, albeit in the name of protecting the broader community. I think that he is highlighting the argument that we on this side of this place have always highlighted; that is, that any consideration of removing a human right or restricting a human right guaranteed by international treaty or other mechanism must be proportionate to the extent that it protects the broader community.
Clearly, the Terrorism (Extraordinary Temporary Powers) Bill, which this Assembly passed earlier this year, is a piece of legislation that is designed to achieve exactly that balance, designed to recognise that the broader community must be protected, but at the same time it must not be done in a way which disproportionately impacts on the rights and liberties of individual citizens in our community. That is the theme overwhelmingly that comes through from how the committee has reconciled and reported on discussions at this conference and, for me, it only reinforces the approach that the Stanhope government has taken; that is, that any infringement of civil liberties or human rights must be proportionate, must have regard to the impact of that limitation on rights and must also have regard to the need to protect the broader community.
The other issue in the committee’s report that I want to touch on quickly relates to who best protects rights—legislatures or the courts. I think that this is the issue with which the opposition have the greatest concern. That seems to be the argument that Mr Stefaniak has put over the years. Clearly, there are two sides to this discussion, but we have seen since the introduction of the ACT’s Human Rights Act that there has not been a massive rush into the courts to seek review of decisions because they infringe or impinge on human rights. The world has not ended. The body of law that governs the territory has not been threatened or undermined in some catastrophic manner, as you would have thought would be the case from listening to those opposite in their opposition to human rights law. In fact, we have seen in many respects a much more considered and deliberative response on the part of the judiciary and on the part of those who seek recourse to the judiciary through the Human Rights Act.
We have seen a number of cases which have sought to question the application of certain ACT laws. Overwhelmingly, those laws have been upheld and their application has been upheld. On at least one occasion there has been a decision set aside or a review undertaken of particular administrative decisions of government as a result of recourse to
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