Page 380 - Week 02 - Tuesday, 4 March 2008
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The 1986 Canadian case of R v Oakes held that, and, again, I quote:
… to be proportionate:
the limitation/s must be carefully designed to achieve the relevant objective, not to be arbitrary, unfair or based on irrational considerations;
the limitation or interference should impair as little as possible the right in question; and
even if the objective is of sufficient importance and the first two elements of the proportionality test are satisfied, it is still possible that because of the severity of the deleterious effects of a measure on individuals or groups the measure will not be justified by the purpose it is intended to serve.
In examining this bill the Standing Committee on Legal Affairs noted that the Attorney-General had previously commented in relation to the Corrections (Management) Bill 2006 that, and I quote:
The danger of taking that path—
that is, codifying proportionality in legislation—
is that it would change the test to a matter of statutory interpretation rather than application of precedent … Codifying it might exclude important nuances and changes expressed in case law.
That said, Mr Speaker, the amendment provides guidance on the range of factors that must be taken into account when assessing whether a limitation on human right is reasonable and justified. In addition, there is sufficient case law available to provide judicial guidance on interpretative matters.
Section 5 provides that, so far as possible to do so consistently with this purpose, territory laws must be interpreted in a way that is compatible with human rights. This is based on the approach taken in Victoria and the UK. Again, it provides guidance, but at the same time it provides some flexibility for territory laws to be interpreted according to their purpose.
Section 6 requires the Supreme Court, in a proceeding to which the ACT is not a party or when the court is considering making it a ruling of incompatibility with the Human Rights Act, to satisfy itself that the Attorney-General and the Human Rights Commission are notified and allow a reasonable time to pass for the Attorney-General and the commission to decide whether to intervene. It also allows the court to proceed in matters relating to the granting of urgent relief of an interlocutory nature. This is a sensible amendment that ensures all relevant or potential parties have an opportunity to be involved in matters before the Supreme Court.
Mr Speaker, it is section 7 and, as a consequence, sections 8 and 9, which the opposition seeks to omit from the bill. I will be moving amendments later. Clause 7, which will commence on 1 January 2009, provides specifics in relation to the
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