Chief Minister Jon Stanhope has announced that he wants the Legislative Assembly to enact a Human Rights Act for the ACT. This historic Act would come into force on 1 July 2004 and would be Australia’s first Bill of Rights. If he is successful, it will end the string of failures to achieve a Bill of Rights around Australia. It will also reflect how the ACT process and model for a Bill of Rights is different to what has been tried before.
Unlike other attempts at a Bill of Rights, the ACT process has taken place over a long period in which there have been several opportunities for community engagement. The ACT Bill of Rights Consultative Committee, established in April 2002, held several open town meetings and many consultations with community and expert groups. It also sought submissions from the public and commissioned a deliberative poll of ACT residents. Over a weekend, these 200 people had the chance to listen to the different sides of the argument and to discuss the issues amongst themselves. Both the submissions to the Committee and the deliberative poll showed strong majority community support for an ACT Bill of Rights.
When it delivered its report in May 2003, the Consultative Committee, not surprisingly, recommended a Bill of Rights. However, it did not propose a United States-style Bill of Rights in which rights are entrenched, or effectively set in stone, in a constitution. Instead, based upon the United Kingdom’s 1998 Bill of Rights, it argued that the Legislative Assembly should pass ordinary legislation called the Human Rights Act. This approach would allow more flexibility, as well as gradual improvement, in the way rights are protected.
The Chief Minister accepted this recommendation by the Committee. He has also accepted the idea that the ACT Human Rights Act should not allow courts to strike down laws passed by the Legislative Assembly. Courts would instead be directed to interpret legislation to be compatible with the protected rights. If this could not be achieved, the Supreme Court could make a "declaration of incompatibility".
A declaration that a law is incompatible with a right would direct the attention of the Attorney-General to the problem. The Attorney would then have six months in which to respond in the Legislative Assembly. The offending law might then be amended, or the response might be to do nothing. Overall, the process would engage the courts, the Assembly and the community in public dialogue about fundamental rights. In this dialogue, judges would have a key role but would be limited to interpreting laws and identifying areas of incompatibility. The last word would be left to the people’s representatives in the Legislative Assembly and ultimately, at the ballot box, to the community.
The Chief Minister has departed from the recommendations of the Consultative Committee in two areas. He has agreed that civil and political rights will be protected by the Human Rights Act, such as the rights to freedom of speech and to equality before the law. On the other hand, economic, social and cultural rights, such as the rights to adequate food, clothing and housing and to education, will not be included "at this time". While the government supports the inclusion of both sets of rights "in principle", the latter will not be listed at the first stage of the Bill of Rights. Such rights are less often found in Bills of Rights overseas and, according to the government, could raise difficult questions about the allocation of scarce government resources.
It also appears that the Human Rights Act will not allow for claims to be made against government agencies and other public authorities for breach of the protected rights. It would be better if the Act did provide for this, as it would be an effective way of ensuing compliance with the Act and that people adversely affected by government have a remedy. Such claims can be made in other systems with a Bill of Rights, including in the United Kingdom.
In any event, the Human Rights Act is only the first step to better rights protection and would not be the end of the debate. Over time, as understanding of and confidence in the Act grows through its use by politicians, judges and the community, there will be room for discussion about how it might be improved, including by being expanded to cover economic, social and cultural rights. This idea of ongoing debate would be built into the Human Rights Act, which would require a public review of its operation after five years.
The Human Rights Act proposed by the Chief Minister will be a modest but effective Bill of Rights. It will improve decision-making on rights issues within the courts and the Legislative Assembly and will be a positive start to ensuring that peoples’ rights are not forgotten. Perhaps most importantly, it will also give voice for the first time in Australian law to the need to recognise and protect the basic freedoms of everyone in the community. This will be vital to continuing to build a rights culture and to educating Australians of all ages about the need for tolerance and a respect for difference.
The Chief Minister has taken a progressive, incremental step forward in supporting a Bill of Rights for the ACT. While the Human Rights Act is far from a radical proposal in world terms, and does not protect all of the rights that might be included, it is a constructive and worthwhile start to the better protection of peoples’ rights in the ACT. Until now, Australia has stood alone in being the only Western nation without a Bill of Rights. The ACT Human Rights Act will change this, and will spark debate and hopefully reform around the rest of Australia.