Page 735 - Week 02 - Thursday, 10 March 2011
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community, in our courts and in our legislature, to create a city where human rights are taken seriously.
MR CORBELL (Molonglo—Attorney-General, Minister for the Environment, Climate Change and Water, Minister for Energy and Minister for Police and Emergency Services) (12.17), in reply: I thank members for their contribution. This is an important review of the operation of the ACT’s Human Rights Act, the first bill of rights in the country, and a great example of how the territory works to advance important reforms that are of benefit to its community as well as of great interest to many other parts of the nation.
A few comments have been made in the debate today that I think are worthy of response from the government. The first, of course, is the suggestion that a Human Rights Act has overwhelmed the primacy and the supremacy of the legislature, of the parliament. Of course, there is no evidence to back up that claim. In fact, the silly claim that we have heard from the Leader of the Opposition is refuted by the authors of this review, both in the review and in many other documents and analyses of how the dialogue model works. And it really does highlight the paucity of interest that those opposite demonstrate in this issue and their fundamental lack of knowledge about how the dialogue model operates.
Let me give you an example. Recently the Supreme Court held that a part of the Bail Act was incompatible with the Human Rights Act, the first such declaration of incompatibility made by the Supreme Court. Did that in any way affect the court’s application of that law as passed by the Assembly? Indeed, did it result in the law being null and void in that regard, which was about the primacy of people charged with serious crimes having to be, in almost all instances, held in custody on remand?
No, it did not. It did not affect the operation of the law one little bit. The court still had to apply the provisions of the Bail Act, as this Assembly had determined it should, even though the court found that that provision of the Bail Act was incompatible with the Human Rights Act. I would have thought that demonstrates precisely that the will of the parliament is supreme in the operation of our Human Rights Act and that the courts cannot overturn or read down provisions that this place has said should be in statute. So that first argument from Mr Seselja just does not hold any water.
Of course, the value of the dialogue model is that it requires executive government to be cognisant of and have due regard to the rights that are protected in that legislation. And it requires it not just when the matter is brought on for debate in this place; it requires it at every level of the development of a legislative proposal. It requires it to be built into the policy development phase so that, from day one, departments and ministers must have regard to whether or not the proposals they put forward to this place are compliant with those universal rights that are enshrined in our act and, if they are not compliant, there needs to be good reason why those rights should be deviated from to some degree, and justification given.
That is the whole point of the human rights model. It is about demonstrating that these issues have been had regard to and properly respected and only overridden to the extent that it can be justified in a proportional context. That is the value of the
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