Legislative Assembly for the ACT: 2004 Week 3 Hansard (9 March) . . Page.. 929..
That the Assembly do now adjourn.
Bill of rights
MR STEFANIAK (5.09): Mr Speaker, sometimes I do not agree with editorials in the Canberra Times but I thought there was a particularly good one last Sunday. Might I firstly thank the Chief Minister for sending me down a copy of an interesting speech made by the Chief Justice about 12 hours after the bill of rights was passed by this Assembly. The Canberra Sunday Times had an interesting editorial, which I think is worthwhile reading to the Assembly. It said:
The sum total of rights enjoyed by the average ACT citizen did not, in theory, increase by one tittle last week as a result of the passage by the ACT Assembly of the ACT Bill of Rights. The Act enumerates rights which most people believe themselves to have, and the legislation will not, of itself, give them fresh ways of vindicating their rights should the ACT Government or the Assembly trample upon them. The most which can happen, in theory, is that ACT courts will be required to interpret ACT legislation in a way consistent with the statement of rights, or, if that is impossible, to issue a declaration of incompatibility. Such a declaration will not of itself invalidate any law, but must come before the Assembly.
The ACT Chief Justice, Terry Higgins, made an unusual speech last week welcoming the new legislation-the ink of which was scarcely dry-and defending both the need for an enumeration of rights, and the role of a judiciary in enforcing them. Even were the present balance of rights about right, there was nothing preventing future parliaments, or oppressive majorities, from severely restricting rights or trampling on the rights of minorities. He instanced "truly draconian legislation"recently passed by the Federal Parliament permitting detention on suspicion, denying rights of legal representation, habeas corpus and the right to silence, and even introducing guilt by association since, if a particular group were declared illegal, mere membership of such a group would be a crime. At the ACT level, he referred to the plight of the mentally ill, left to languish on remand in jail cells because of the lack of a secure mental health facility. It was, he said, the role of a judiciary to defend the rights of such people to the fullest extent of the law, and to inform the legislature when it considers that those rights have been breached.
The judge made an eloquent, if unusual, defence of human rights laws, but some of his examples invited just the questions which fundamental critics of the Bill of Rights ask. Rights cannot exist in a vacuum, and even the Bill of Rights recognises that balancing decisions have to be made at the margin, say between pure freedom of speech and rights of privacy, to protection against defamation, against the incitement of hatred and a fair trial. As it is, parliament and the executive strike these balances; the job of the judiciary is to interpret their decisions, perhaps creatively and constructively filling in some of the gaps, but not to substantiate their own views of a fair balance. The ACT ministry and Assembly are perfectly well aware that the arrangements they have made for mentally ill people on remand defy decency and trample on human rights. Judges have told them this; so have the media and many interest groups. Rightly or wrongly (in our view wrongly), the government and the legislature refuse to do anything about it. But the courts cannot appropriate the resources, and their powers to defy the existing bail laws are limited, whatever they may think.
The editorial concludes: