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With the passing of the Human Rights Act 2004 (ACT) Australia now has its first Bill of Rights.[1] The Act has been criticised by its opponents as being, at best, unnecessary and, at worst, a potential impediment to good governance[2] and strong communities.[3] The Act has also been criticised by those in favour of bills of rights as being insufficiently comprehensive and unduly weak when it comes to enforcement.[4] In comparison to other bills of rights in similar jurisdictions, the Human Rights Act is modest. Whatever the limitations of the Act, however, it demonstrates the growing influence in the common law world of human rights protection models that seek to distribute responsibility for protecting rights between the branches of government.[5]
One of the aims of the Act is to balance responsibilities for rights between the three branches of government. This was one of the general principles set out by the Consultative Committee in its discussion of what type of bill of rights would be appropriate.[6] The Committee said:
In the context of the ACT, the Consultative Committee considers that a model that preserves a balance between the legislature, the executive and the judiciary in relation to the protection of rights is preferable to one that defers almost completely to the legislature and the executive (as in the current Australian legal system) or one that allows the judiciary effectively to trump the legislature and to invalidate laws (as in the United States Bill of Rights).[7]
This approach was subsequently adopted by the legislature and thus the resulting Act can be seen as one that balances responsibility for rights between the three branches of government.
The Act was not developed in a vacuum. The Consultative Committee drew extensively from the experience of other common law countries in developing their model for the Act.[8] Ultimately, both the Committee and the legislature rejected the idea of giving the judiciary power to invalidate legislation and instead opted for a judicial role that is limited to rights focused interpretation and issuing declarations of incompatibility. Because of this, the models of rights protection that will prove most fruitful in terms of predicting the way in which the ACT Act might affect the roles of the three branches of government in protecting rights are those of the United Kingdom and New Zealand. In both these jurisdictions the courts have no power to invalidate legislation, yet in both the legislative protection of rights has made a real contribution to the development of a culture of rights in the respective States.
After briefly giving a background to the ACT Act, this article will consider the role that the legislature, the executive and the judiciary are given in this new scheme of rights protection. In each case there are areas where the Act is silent or leaves considerable room for judicial interpretation. This is particularly the case in the regulation of executive power under the Act. Where such lacuna exist, the experience of the United Kingdom and New Zealand might prove helpful in predicting how the Act will work in practice.
During the 2001 elections in the ACT, the Australian Labor Party promised to establish a consultative process on a bill of rights for the Territory if it was elected to government. After Labor won office, it fulfilled that promise by establishing an ACT Bill of Rights Consultative Committee constituted by Professor Hilary Charlesworth (Chair), Professor Larissa Behrendt, Elizabeth Kelly, and Penelope Layland.[9] The terms of reference for the Consultative Committee required it to engage in community consultation to determine whether it was 'appropriate and desirable' to enact a bill of rights for the ACT. If the Committee deemed that it was appropriate it was further asked to consider the form the Bill of Rights should take; the effect of the Bill on the 'exercise of executive and judicial powers' including the question of whether there should be a legislative override; and what rights (and possibly responsibilities) should be included in the Bill.[10]
The Consultative Committee engaged in a consultation process that included developing an issues paper, holding 'town meetings', calling for written and oral submissions, and holding a Deliberative Poll.[11] The results of these consultations showed a majority of ACT residents in favour of a bill of rights of some type, although a substantial minority were opposed.[12] Many people, particularly those from or representing vulnerable groups, gave evidence to the Committee of areas in which a bill of rights was needed. While a number of other people denied the need for a bill of rights, the Committee decided that there were sufficient reasons to justify passing a bill of rights of some kind for the Territory.[13]
The final form of the Bill recommended by the Consultative Committee was modelled to a significant degree on the Human Rights Act 1998 (UK) c 42. The Committee recommended that the Bill of Rights take the form of an ordinary piece of legislation, rather than an entrenched or constitutional bill of rights.[14] As with the United Kingdom Act, the Committee recommended that the ACT Act include a requirement for judges to interpret statutes and the common law in light of human rights and gave judges the power to issue declarations of incompatibility if legislation could not be interpreted in a manner consistent with human rights obligations. Judges would not be given the power to invalidate legislation.[15] The Committee did, however, recommend that judges be given the power to invalidate subordinate legislation that did not comply with human rights. Any person would be able to bring an action for a declaration of incompatibility and a person aggrieved would be able to bring a case for an appropriate remedy (including compensation) for executive actions that breached his or her rights.[16] Where the Consultative Committee's recommendations differed significantly from the United Kingdom's approach was in its recommendation that the ACT legislation include economic, cultural and social rights within the definition of human rights for the purposes of the Act.[17] This approach was drawn both from international human rights principles which hold rights to be 'indivisible'[18] and also from the practical example of the South African Constitution where judges are given the power to adjudicate disputes over economic, social and cultural rights.[19]
With the exception of the inclusion of social and economic rights in the draft Bill, the proposals put by the Consultative Committee were fairly conservative. The power of the legislature was left untouched with the judiciary being given no power to invalidate legislation. While executive action could come under greater scrutiny, attempts were made by the Committee to ensure that remedies other than compensation were given the primary emphasis and that compensation was kept to moderate sums. Legislation authorising executive action could exclude the obligation to comply with all or any human rights obligations. The Consultative Committee described the relationship established by its draft Bill as one that created a 'dialogue' between the various branches of government.[20] The dialogue model, which has been used to describe the system of rights protection in Canada and the United Kingdom, attempts to involve the legislature and judiciary in a discussion about rights. This is achieved by not giving the judiciary the final word on rights, but rather by ensuring judicial input in particular questions of rights application while leaving the final determinations about rights to the democratically elected parliament.[21]
By the time the Human Rights Bill 2003 (ACT) was introduced to the ACT Legislative Assembly, its provisions were considerably watered down from the already conservative model suggested by the Consultative Committee. The final Human Rights Act does not greatly alter the relationship between the courts and the legislature from that suggested by the Committee, but it has removed most references to the executive, leaving an unfortunate level of uncertainty about the effect of the Act on administrative action. It also removed reference to social and economic rights.[22] Whatever its limitations, however, the Act makes an interesting contribution to the Australian and international debate over bills of rights by trying to ensure that each branch of government is given real responsibility for the protection of human rights in the Territory.
The passing of the Human Rights Act is a strong statement that the ACT parliament perceives itself as having a central role in the protection of human rights. The Act was passed as an ordinary Act of Parliament and the Legislative Assembly has indicated its intention to maintain an on-going role in scrutinising the operation of the Act by requiring the Attorney-General to report to parliament on the operation of the Act after the first and fifth year of its operation.[23] There is no presumption that the Act will remain in its existing state for any lengthy period of time, as the Attorney-General is specifically required to consider after the first year of operation whether the Act should be expanded to include rights in the International Covenant on Economic, Social and Cultural Rights[24] and whether 'environment-related human rights' would be better protected with oversight from an environmental specialist.[25] The Attorney-General is also required to review the operation of the Act more generally and present a review to the Legislative Assembly not later than 1 July 2009.[26] Thus parliament has maintained for itself both the right, and even to some extent the expectation, that it will have an on-going role in the way in which the Human Rights Act evolves.
Under the Act as it currently stands, the primary role of the Legislative Assembly is prophylactic. The key role in the Assembly's protection of human rights is given to the 'relevant standing committee' — at present the Standing Committee on Legal Affairs, although this may be changed by a declaration of the Speaker.[27] The Act is remarkably brief in regards to the powers and obligations of the relevant committee. The Act simply says that the 'relevant standing committee must report to the Legislative Assembly about human rights issues raised by bills presented to the Assembly.'[28] There is no allocation of extra resources for the additional work of the Committee or reference to a human rights expert(s) to assist with the pre-legislative scrutiny. There is no explicit obligation or right to hold public inquiries into Acts of particular concern to the Committee (although this is common in the ACT and the right to hold such inquiries appears to generally be acknowledged). Perhaps most importantly, there is no guarantee that the Committee will be given adequate time or resources to carry out its obligations thoroughly and properly. The potential for s 38 Committee scrutiny to be undermined or marginalised is further re-enforced by s 39 which says that a failure to comply with s 38 does not 'affect the validity, operation or enforcement of any Territory law.'
It should be noted that the obligation on the Committee to scrutinise legislation is not in itself a radical change with past practice. The Committee on Legal Affairs did scrutinise legislation for compliance with human rights, at least to some degree, before the Human Rights Act. The Terms of Reference for the Committee required it to report on whether Bills introduced into the Assembly:
c) (i) unduly trespass on personal rights and liberties;
(ii) make rights, liberties, and/or obligations unduly dependent upon insufficiently defined administrative powers;
(iii) make rights, liberties and/or obligations unduly dependent upon non-reviewable decisions.
This formulation for pre-legislative scrutiny is very similar to ones contained in the terms of reference for a number of other Australian scrutiny committees and has been criticised rightly for being obscure and unnecessarily narrow.[29] The Human Rights Act will assist the Committee by giving it a clearer and more detailed list of human rights to assist the Committee in its scrutiny role.[30] It would, however, be unfortunate if the exclusion of economic, social and cultural rights from the Act leads to these rights being marginalised in the Committee.
The Act also directs the courts, in interpreting human rights, to make reference to '[i]nternational law, and the judgments of foreign and international courts and tribunals' where appropriate.[31] Assuming that this direction could also be seen as a guide to the Committee in its work, it seems unlikely to greatly change the approach of the Committee as it already regularly uses such material. For example, in its scrutiny report into the grant of bail, the Committee noted that the
compatibility of the law relating to bail with the provisions of human rights laws has been much considered by international bodies (such as the Human Rights Commission), by supra-national courts, and by the national courts of countries that have adopted human rights law.[32]
The Committee then went on to examine Australian case law, the Canadian Charter of Rights and Freedoms, the United Nations Human Rights Committee, the International Covenant on Civil and Political Rights, and the European approach. Thus, while the rights that the Committee is required to explore are arguably expanded (and at very least clarified) under the Act, the types of materials to which it has reference are, in practice, likely to remain broadly the same.
An area that is not clearly dealt with in the Act is that of delegated legislation. Under the existing Terms of Reference, the Committee is obliged to scrutinise both delegated and primary legislation using the rights criteria set out above.[33] The Act places the new requirement for scrutiny of the full range of human rights on the Committee only with regard to Bills. Given the previous practice of the Committee to look at a rather full range of international human rights materials in scrutinising both Bills and delegated legislation it would have been preferable if the scrutiny obligations of the Committee under the Human Rights Act were extended to delegated legislation. Given that no legal consequences flow from the Committee's report there seems little to be lost by doing this. As the Committee is already obliged to scrutinise delegated legislation with respect to ill-defined rights obligations, it would place little additional work-load on the Committee to have asked it to apply slightly clearer criteria to their scrutiny role. The new Standing Orders of the Committee are not yet available and it is possible that the issue of scrutiny of delegated legislation will be dealt with through changes to the orders rather than directly in the Act.
The other key role played by the legislature under the Human Rights Act is to scrutinise the role of the Attorney-General in regard to human rights. Under the Act, the Attorney-General is required to make a compatibility statement about every Bill that comes before the Assembly.[34] The statement must state whether 'in the Attorney-General's opinion, the bill is consistent with human rights' and, if it is not, how it is inconsistent with human rights.[35] Similarly, if a court makes a declaration of incompatibility with respect to an Act, the Attorney-General is required to present a copy of the declaration to the Assembly within six sitting days and to present a written response to the declaration within six months.[36] The statement to be made regarding Bills presented to the Assembly applies to all Bills and not just government Bills (as is the case in the United Kingdom[37]). In New Zealand the requirement that statements of compatibility be made in regard to private members Bills has been very useful in revealing rights issues in Bills that do not have the same degree of professional public service assistance and legal advice as do government Bills.[38] The overall impact of the provisions in the ACT Act is that the Assembly is kept informed of rights issues and given the first and last word on issues of incompatibility.[39]
The requirement that the Attorney-General report to the Assembly is a reflection of the system of responsible government that operates in the ACT. Like responsible government more generally, however, there is a danger that the accountability of the executive to the legislature becomes a matter of form rather than substance. In a unicameral parliament, such as the ACT's, where governmental power is even less likely to be checked than in a bicameral parliament, the possibility that the presentation of compatibility statements or responses to declarations of incompatibility could become a mere formality is heightened.[40] As Max Spry has noted, this has the potential to leave rights 'subject to the political will of the day' which was one of the problems that the Bill was intended to remedy.[41] The obligation is also limited because it does not require the Attorney-General to give reasons for his or her view, except to state, if a Bill is not consistent with rights, 'how it is not consistent'.[42] The provision of reasons would enhance the ability of parliament to meaningfully scrutinise the statement and assess its merits. It would also help to prevent such reports from becoming wholly standardised or formulaic.[43]
There are a number of reasons to hope that the Attorney's statements to the legislature might be more than a formality. The first is that the compatibility statement of the Attorney-General does not take place in a vacuum. The Legislative Committee will also undertake detailed scrutiny of the legislation for compliance with rights.[44] While the views of such Committees are often ignored in the ordinary political process, there would be the potential for embarrassment of the government if its views directly conflicted with the views of its expert Committee. Such embarrassment would be increased if the Supreme Court later affirmed the views of the Committee by issuing a declaration of incompatibility. This may create some incentive for the government to work with the Committee to ensure that the Bills that raise human rights issues are dealt with appropriately. According to Lord Lester of Herne Hill, the United Kingdom Joint Committee on Human Rights (of which he is a member) has entered into a dialogue over issues of concern with members of the executive responsible for legislation and has pushed for the statements of compatibility to become more detailed and meaningful. He argues that the Committee has been moderately successful in its efforts.[45]
Secondly, declarations of incompatibility will have a certain political force because of the respect with which courts' opinions on issues of rights are normally held.[46] Perhaps more importantly, there will already be parties involved in a case who have a commitment to pursuing the rights issue in question (exemplified by their willingness to take the issue to court). The political persuasiveness of their claim will be enhanced by the declaration of incompatibility of the court, and it is possible to envisage many situations when parties to cases will refuse to allow the report of the Attorney-General to turn into a mere formality. Even in circumstances where the Opposition is content not to scrutinise the Bill too deeply, public pressure may be put on the Assembly to at least give the semblance of proper consideration.
The evidence from other jurisdictions that use declarations of incompatibility suggests that declarations can play a modest role in triggering legislative action. In New Zealand, declarations were developed by judges outside the statutory regime and thus there is no statutory requirement of parliamentary responses to any declaration.[47] A new, more formal regime of declarations has been established in New Zealand under the Human Rights Amendment Act 2001 (NZ) in respect to discrimination claims.[48] While there have been few instances of declarations at this point, there is evidence that such declarations may have a real influence on government policy. Rishworth et al go further and argue that indications of inconsistency with human rights by judges 'will help shape, if not determine, Parliament's agenda,'[49] but this may be an overly optimistic perspective.
In the United Kingdom the courts have used declarations of incompatibility, although the use has not been frequent.[50] In a number of cases this has led to legislative change that enhanced rights. For example, a remedial order (discussed further below) was used to change the Mental Health Act 1983 (UK) c 20 when it was found to be incompatible with human rights because it put the onus on the person detained under the Act to prove certain criteria related to their on-going detention under the Act.[51] This is also an interesting example because it demonstrates the interaction between the parliamentary Committee and the executive. In this case, the Committee urged the executive to use remedial orders to remedy the incompatibility found by the court, as the liberty of the subject was at issue. The executive agreed to change its approach from one of using ordinary legislation to using the quicker remedial orders.[52] While this example is a demonstration of the way in which the system can work well and all three branches of government can play a role in protecting rights, there have been a number of cases in which a declaration has been made and no parliamentary action has been forthcoming.[53]
This is a significant distinction between the procedures in the Human Rights Act and those in judicially enforceable bills of rights. Under the ACT Act, the final word on human rights issues is left to the Assembly. While those interested in seeing changes to legislation may well seek a declaration of incompatibility in appropriate circumstances,[54] persuading the courts will only be one step in the process of having an Act repealed or modified. Those who oppose legislation on human rights grounds will ultimately have to persuade the democratically elected Assembly of their argument.
The Attorney-General is given both powers and obligations under the Human Rights Act. As outlined above, it is the responsibility of the Attorney-General to make a compatibility statement in regards to each Bill introduced into the Assembly. This puts a positive onus on the ministry more generally to consider the issue of human rights before a proposed law gets to parliament. The Act will have worked most effectively if all those involved in the pre-legislative process internalise the human rights values outlined in the Human Rights Act and apply them to all stages of developing and drafting legislation. It is possible, however, that it will develop into a mere add-on in which human rights considerations are only taken into account at the last stages with a view to finding a way for the Attorney-General to make the compatibility declaration so as not to embarrass the government. Elizabeth Kelly, Acting Deputy CEO of the ACT Department of Justice and Community Safety argues that the statement of compatibility will 'institutionalise human rights considerations at the beginning of the policy process. And although this work will be invisible to practitioners and the public, in many respects it is where the biggest impact of the Act will be felt'.[55] The government is preparing a pre-enactment scrutiny policy and set of procedures that will apply across government and much of the force of the Act will ride on such processes being effective.
The considerable effort which it takes to comprehensively change public service and executive government culture to one that is conscious and respectful of human rights should not be underestimated. The United Kingdom Act was not brought into force until nearly two years after it was passed in order to undertake a significant compliance programme within the public service and training of judges.[56] This programme showed up the depth of ignorance and confusion about rights from many in the public sector.[57] The attempts in New Zealand to audit government compliance with human rights (Consistency 2000[58]) also proved time-consuming, controversial and expensive. These programmes in other jurisdictions make questionable the claim by the Chief Minister that a departmental audit by ACT government departments demonstrated a high degree of pre-existing compatibility with rights.[59] Time will tell whether this positive self-judgment is justified.
One measure to assist in ensuring public sector compliance that is set out in the Act is the requirement that all government departments and units include in their annual reports a statement of the 'measures taken by the administrative unit during the period to respect, protect and promote human rights'.[60] The obligation on the public service is positive; it does not merely require the department to certify that it has not breached rights or has not produced legislation that infringes on rights, but rather requires consideration of how it has protected and promoted human rights. Again, it is always possible that such statements can become formalities, but they may also provide opportunities to departments for self-reflection and consideration of the importance of human rights in their operations. This provision is a welcome one and is a feature that is not found in other, similar human rights instruments.
Another manifestation of executive power is the right of the Attorney-General to receive notice that the Supreme Court is considering making a declaration of incompatibility[61] and to intervene in the proceedings if he or she so desires.[62] This is similar to the scheme that operates for informing the Commonwealth and State Attorneys-General about cases that raise constitutional issues.[63] This provision recognises both the potential political importance of declarations of incompatibility, but also the expertise that the Attorney-General may bring to the deliberations of the Court in particular areas. For example, where legislation has limited a right for reasons that are permissible under the Act,[64] the Attorney-General should be capable of clearly articulating and providing evidence for those reasons to a greater degree than most private parties would. In the United Kingdom, for example, the government has been able to convince the judiciary of the importance of its comprehensive road rules, which include requiring drivers to act in a manner that is self-incriminatory in some cases, in order to decrease deaths and injuries.[65] This type of evidence and an articulation of policy is an appropriate role for the executive to play in judicial proceedings. It should prove useful for the Court and further demonstrates the important role played by the executive in the scheme of the Act.
Thus the Attorney-General plays a significant role in both the legislature and the courts when issues of human rights arise. The Attorney-General has not, however, been given the same wider powers that are given to United Kingdom Ministers to ensure compliance with human rights. Section 10 of the Human Rights Act 1998 (UK) c 42 allows a Minister to take remedial action if a declaration of incompatibility is made in respect to a provision of legislation.[66] This action includes, in urgent cases in which the Minister believes that there is a compelling need to act, the ability to amend legislation to the extent necessary to 'remove the incompatibility'.[67] The parliament retains ultimate control over the process, but for a period of time a Minister may have power to unilaterally amend legislation.[68] Quite appropriately, given the separation of powers issues that giving such power to the executive raises, this power was not given to members of the executive under the ACT Act. Unlike the United Kingdom, the ACT has a unicameral parliament in a very small jurisdiction which allows the legislature to meet within a short period of time and pass necessary legislation if an urgent rights-based reason arises.
While the Act places significant responsibilities for the protection of rights in the hands of the Attorney-General and of the public service more generally, the effect that the Act might have on government administration is less clear on the face of the Act. While the Consultative Committee dealt with the issue quite briefly, it concluded that delegated legislation should be interpreted so that it was compatible with human rights where possible. When this was not possible, however, the delegated legislation should be found to be invalid unless the breach of rights was specifically authorised by the primary legislation.[69] Furthermore, all ACT public authorities were to be required to 'act compatibly with the Human Rights Act' and appropriate relief, including compensation, was to be available for breach of the duty.[70] Both of these provisions were excluded from the Bill that the government presented to Parliament.
Despite this exclusion it is clear that the Act will affect administrative action and, while a statutory remedy under the Act may not be available, a range of remedies involving rights will to some degree open up. This was recognised to some extent by the Chief Minister when he stated to the Legislative Assembly that 'human rights will become part of every judicial and administrative decision. Each piece of legislation that gives authority for administrative action will be read, as far as possible, to be consistent with the human rights protected by the Act'.[71] The Chief Minister also explained that no independent cause of action in the courts was included in the Bill as 'questions of statutory interpretation can already be brought before the courts and tribunals in the course of existing actions, such as judicial and merit review'.[72] This response to the Consultative Committee proposal is somewhat disingenuous. While statutory interpretation in the course of judicial or administrative review might well prove to be of significant use, it does not cover all the same issues as an independent cause of action would. The necessity of finding another action to which to link the human rights points will make it more difficult to initiate actions to test legislation that appears to breach rights.[73] Furthermore, the deletion of a provision that clearly requires the administration to adhere to the rights in the Act sends a strange message about the importance of the Act and the seriousness with which it is regarded by government.
Even so, the potential administrative law implications of the Act are significant. The interpretative task of the judges includes interpretation of the large number of statutes that authorise executive or administrative action. Despite the claim by the Chief Minister that the Act does not 'make the operation or enforcement of the law invalid or in any way affect the rights or obligations of anyone',[74] the Act does have the potential to lead to the invalidation of subordinate legislation. This is so even though the express provision that would have allowed this was deleted from the Act. The question of whether a broad delegation of power implicitly included the right to behave in a manner that disregarded the rights in the Act is now likely to be answered in the negative (even though a specific legislative instruction to breach rights would not be reviewable). Further, human rights will almost certainly become relevant considerations that must be taken into account in decision-making and a failure by officials to interpret their obligations consistently with human rights might lead to an error of law.[75]
If the changes to administrative law that have been seen in the United Kingdom are replicated in the ACT then the impact of the Human Rights Act on administrative law could be even more profound.[76] Even before the United Kingdom Act, the concept of Wednesbury unreasonableness was criticised by the European Court of Human Rights as affording insufficient scrutiny of executive actions that burdened rights. The high threshold of unreasonableness traditionally required for judicial review in both the United Kingdom and Australia was thought to be an insufficient reflection of the European Convention of Human Rights requirement that limitations on rights be proportionate to the legitimate ends served by those limitations.[77] After the UK Act came into force, the House of Lords in the Daly Case outlined a new test for review that sees judges playing a far greater role in assessing the balance struck by the primary decision-maker and assessing the relative weight to be given to the interests at stake (while denying a role for the courts in merit review as such).[78] In some circumstances the courts are prepared to determine contested issues of fact to a greater degree than under traditional administrative law approaches.[79]
It is unlikely that such a radical shift in administrative law will take place as a result of the ACT Act. It would require the relatively small jurisdiction of the ACT to take a decidedly distinct approach to administrative law from that taken by the rest of Australia. The same motives in terms of European or other external scrutiny do not exist in the case of Australia and the Act itself is less than clear about its application to the executive. The influence of the Act on administrative law, however, is likely to be the most important consequence of the Act for individuals seeking remedies. This being the case, it is a pity that it was not dealt with more comprehensively and explicitly by the Act. In particular, the deletion of provisions dealing with compensation and the way in which such compensation should be determined will not necessarily mean that no compensation is available for executive breaches of rights. In New Zealand a scheme for compensation as a remedy has been judicially developed despite the (probably intentional) failure to include such an entitlement in the Act.[80] While the development of a right to compensation under the Act is not terribly likely, the New Zealand precedent shows that it cannot be excluded. If the ACT government wanted to be sure that a right to compensation was not available, then it should have done so expressly rather than leaving the judiciary without guidance on this issue.
The lack of clarity in the area of administrative law implications (and indeed in the Act more generally) is compounded by the inexplicable absence of any provision that explains to whom the Act applies. In the case of administrative law this leaves some complex issues in the hands of the judiciary. For example, to what extent are private bodies exercising public powers to be subjected to the Act? What are public powers in this context? Does the Act apply to Cabinet decisions or deliberations? Does it extend to exercise of non-statutory executive powers? Outside the administrative law context the absence of an application clause also leads to some difficult questions, including whether and to what extent the courts are bound by the Act (for example, in the administration of justice, in the development of the common law) and whether it might have a horizontal effect between private parties.[81] If this Act was intended to assert the primacy of the legislative authority in rights protection it is hard to understand why such crucial issues were left to the judges. This is particularly so as there is no easy guidance for ACT judges in this regard from other jurisdictions. The United Kingdom's Human Rights Act makes it unlawful for a 'public authority' to act in a manner that is incompatible with rights and says that a public authority includes 'a court or tribunal, and any person certain of whose functions are functions of a public nature' but does not include either House of Parliament.[82] The New Zealand Bill of Rights applies to acts done by the 'legislative, executive, or judicial branches of the government of New Zealand; or [b]y any person or body in the performance of any public function, power or duty'.[83] The South African Bill of Rights 'applies to all law, and binds the legislature, the executive, the judiciary and all organs of state', as well as to 'natural or juristic person[s]' in some circumstances.[84] The Canadian Charter of Rights and Freedoms applies to the 'Parliament and government of Canada' and each Province.[85] Thus there is no consensus in other common law countries about issues such as the applicability of human rights provisions to parliament, the courts or individuals acting in a public capacity. It will be for the ACT courts to try to determine how far the Act should apply with little assistance from other jurisdictions or from the ACT Assembly. While executive accountability to the legislature is dealt with in some detail in the Act, far more thought was needed on the relationship between the executive and the judiciary.
Under the ACT Act the judiciary is given two basic responsibilities. The first is to interpret legislation so as to make it compatible with human rights where possible and the other is to make a declaration of incompatibility where the judge believes that there is an unambiguous statutory provision that is in breach of rights. The declaration has no legal effect as such and only triggers the requirement for the Attorney-General to report to parliament that is discussed above.
Sections 30 and 31 of the Act set out the interpretative direction given to judges. The key provision is s 30 which is poorly drafted and ambiguous. Section 30 reads:
(1) In working out the meaning of a Territory law, an interpretation that is consistent with human rights is as far as possible to be preferred.
(2) Subsection (1) is subject to the Legislation Act, section 139.
(3) In this section working out the meaning of a Territory law means—
(a) resolving an ambiguous or obscure provision of the law; or
(b) confirming or displacing the apparent meaning of the law; or
(c) finding the meaning of the law when its apparent meaning leads to a result that is manifestly absurd or is unreasonable; or
(d) finding the meaning of the law in any other case.
The impact of this section is difficult to predict because it points in a number of different directions. Section 30(1) suggests that the primary interpretative rule used by judges should be to attempt to interpret statutes in compliance with human rights. That judges should expend some effort in finding a compatible interpretation is suggested by the use of the words 'as far as possible'. This is reasonably clear and similar to the provision in the UK Act. Subsection 2, however, confuses the issue by making sub-s 1 subject to s 139 of the Legislation Act 2001 (ACT) which requires that an interpretation that would best achieve the purposes of a law to be preferred to any other interpretation. Thus the primary interpretative rule becomes purposive. It is not clear where this leaves sub-s 1. And the circumstances set out in sub-s 3 help not at all given their variety, obscurity ('confirming or displacing the apparent meaning of the law' is a very odd definition of interpretation) and particularly given the catch-all final provision of 'finding the meaning of the law in any other case'. It is thus not even clear what degree of ambiguity, if any, is required before the interpretative provisions in the other two subsections operate.
This section may be compared with the United Kingdom equivalent on which the Consultative Committee based its original proposal. The United Kingdom Act in s 3(1) states that:
So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with [European Convention on Human Rights] rights.
While judges in the United Kingdom have not understood their powers under s 3(1) to encompass interpretations that fly in the face of the clear intention of the legislation, the clear directions of the Human Rights Act 1998 (UK) c 42 have led them to use their powers to interpret legislation in a manner consistent with human rights.[86] New Zealand judges have taken a similar approach.[87] The practical result of the legislative fuzziness in the ACT Act is that judges will have a high degree of discretion in regard to the circumstances in which they apply s 30(1) to legislation and the extent to which they permit human rights considerations to influence their interpretation of laws.[88]
If the United Kingdom is any indication, it seems likely that the judges will use the ACT Act as a justification for including human rights considerations to a greater extent than before. In a survey of cases before superior courts in the United Kingdom before the enactment of the Human Rights Act 1998 (UK) c 42, Klug and O'Brien found that while the European Convention on Human Rights was increasingly cited by judges and parties, it had little real effect on outcomes. In the 316 reported cases in which judges cited the Convention, the authors concluded that the Convention rights had actually influenced the outcome of the decision only 16 times.[89] In a survey of cases two years after the Act had come into effect, the authors concluded that the Convention rights now play a much more significant role in cases. In this timeframe the Convention rights 'affected the outcome, reasoning or procedure in 318 cases out of 431 cases in the higher courts where it was cited'.[90] This has been achieved without a particular increase in the case-load of courts or the complexity of cases before them.[91] Thus the increased influence of Convention rights has taken place in the context of cases (such as criminal appeals or judicial review) that would have been before the courts regardless of the Act.[92] The New Zealand experience also suggests that there should not be too great a concern about the ACT Act leading to a flood of litigation.[93]
The impact of interpretative clauses in New Zealand and the United Kingdom has been uneven. It is clear that judges generally prefer to interpret statutes so that they comply with human rights rather than make a declaration of incompatibility. Very few such declarations have been made in either jurisdiction. The extent to which judges are prepared to stretch the interpretation of the legislation in order to ensure compliance with human rights differs from case to case, with some authors arguing that no clear interpretative approach has yet been settled in the United Kingdom.[94] The judges have been clear that they must work within the bounds of the language of the statute and not engage in judicial legislation. There have been, however, cases in which a considerable rewriting of the statutory provisions has been undertaken before the legislation can be said to comply with human rights requirements. In R v A (No 2),[95] for example, the House of Lords, while denying that it had a role in legislating, held that s 41 of the Youth Justice and Criminal Evidence Act 1999 (UK) c 23, which made it very difficult to cross-examine a rape victim about her sexual conduct, had to be interpreted in light of the Article 6 right to a fair trial. Thus s 41 did not apply when the evidence about past sexual conduct was so relevant that to exclude it would endanger that right to a fair trial. This was despite the fact that this 'rape shield' provision had been introduced because of the problems that arose when judges were given discretion about the circumstances in which past sexual history was relevant.[96] This is one of the most extensive views taken of the power of the courts to interpret legislation. In other cases, the courts have been far more deferential to the judgment of the legislature and executive on matters of policy[97] and the appropriateness of limiting rights in particular circumstances.[98] Indeed, concerns about judges being too eager to rewrite legislation seem to have been replaced by concerns that they are developing an unduly deferential approach to the legislature and the executive.[99] The injunction in the ACT Act that the purpose of the legislation should be given primacy may increase the likelihood of such deference in the courts' interpretation.
The ACT Act only explicitly grants the judiciary power with respect to interpretation and making declarations of incompatibility. It does not include the power to grant any other remedies. To this extent it is similar to the New Zealand Bill of Rights.[100] The experience in New Zealand, however, demonstrates that even something that looks like a relatively toothless set of rights provisions can sometimes be effective. As discussed above, the administrative law remedies, while not new remedies in themselves, may now apply in a variety of new situations. Similarly, it is possible that a right to compensation, at least in some circumstances, may be judicially developed. One area in which a right to compensation might well develop because of the effect of the Act is where the government seeks to justify action for which compensation would otherwise be payable by reference to their administrative powers. For example, the police might justify what would otherwise be a trespass by reference to their right to enter a property under particular regulations. If those regulations are deemed to be ultra vires because of the way in which the Human Rights Act requires their authorising statute to be interpreted, then the property owner would be entitled to compensation for the trespass. There are also other areas, particularly in criminal law, where judicial creativity can lead to pre-existing remedies (particularly the exclusion of evidence) being applied in new circumstances.[101] The extent to which the Act can be made effective in remedial terms is therefore not dictated by the absence of express remedies in the Act, but will rather be largely dependent on the extent to which the judiciary is prepared to use the Act to breathe new life into pre-existing remedies.
As the first Australian jurisdiction to formally incorporate rights into its legislation, the ACT will doubtless be the focus of attention whenever the issue of a bill of rights is raised in any other Australian jurisdiction.[102] In all the circumstances it is probably inevitable that it would be a modest start on the legislative protection of rights. It includes automatic provision for reassessment with a view to expanding its scope, particularly with respect to the controversial issue of the exclusion of social and economic rights, so it is possible that the Act will merely provide the starting point for a more comprehensive protection of rights in the future. There are, however, issues that should have been dealt with more clearly at this point. The first such issue is the absence of any indication of the persons to whom the Act applies. The second is the lack of any detailed provision for the way in which the Act controls administrative action. No doubt a considerable jurisprudence will develop around these issues, but an Act that asserts legislative supremacy in the area of rights protection should not have left these issues to the judges.
Whatever the weaknesses, the Act is likely to lead to increased respect for rights in the ACT. While the operative provisions of the Act are constrained, ACT judges will have the benefit of the experience of judges in other common law countries such as the United Kingdom, New Zealand and Canada in fleshing out those provisions and applying them to cases. Yet the Act as a whole is an important reminder that judicial application is only one aspect of rights protection. In many ways a more important role of the Act will be in encouraging compliance within the public service, executive and legislature. If the Act can encourage a culture of respect for rights within these branches of government through both judicial and non-judicial mechanisms, then the ACT will prove an excellent example to the rest of Australia.
[*] Senior Lecturer, Faculty of Law, University of Melbourne. This article is part of a broader project on Parliaments and the Protection of Human Rights funded by an Australian Research Council Discovery Project grant. My thanks to my fellow investigators on this project, Simon Evans and Kristen Walker for their helpful comments on an earlier draft and to the Research Fellow on the project, Leanne McKay, for her assistance with research and editing.
[1] George Williams, 'Finally, Australia's First Bill of Rights', Australian Financial Review (Sydney), 12 March 2004.
[2] Bill Stefaniak, 'Increased Security from Terrorism Contrary to Stanhope's Human Rights Bill' (Press Release, 18 March 2004) 1.
[3] ABC News Online, 'ACT Passes Human Rights Laws Despite Opposition', 3 March 2004 <http://www.abc.net.au/news/newsitems/s1057527.htm> at 3 March 2004. The Prime Minister also criticised the Act in an interview with John Laws on radio 2UE on 8 March 2004.
[4] Although most seemed to have some sympathy with the position of the ACT as the first jurisdiction in Australia to adopt such an Act. See Australian Lawyers for Human Rights, 'ACT Can Show National Leadership in Human Rights' (Press Release, 28 May 2003) <http://www.alhr.asn.au/html/documents/ACTBoRRelease_280503.html> at 15 June 2004. For a critique of the argument that interpretative bills of rights are toothless see Janet McLean, 'Legislative Invalidation, Human Rights Protection and s 4 of the New Zealand Bill of Rights Act' [2001] New Zealand Law Review 421.
[5] See generally, Cheryl Saunders, 'Protecting Rights in Common Law Constitutional Systems: A Framework for a Comparative Study' (2002) 33 Victoria University of Wellington Law Review 507; Julie Debeljak, 'Rights Protection without Judicial Supremacy: A Review of the Canadian and British Models of Bills of Rights' [2002] MelbULawRw 17; (2002) 26 Melbourne University Law Review 285.
[6] The Committee was set up by the ACT government to determine whether a bill of rights was needed for the ACT and, if so, what form it should take.
[7] ACT Bill of Rights Consultative Committee, Towards an ACT Human Rights Act: Report of the ACT Bill of Rights Consultative Committee (May 2003) 54 (hereafter 'Consultative Committee Report').
[8] Ibid 43–55.
[9] Ibid 11.
[10] Ibid 12–13.
[11] Ibid 13–15.
[12] Ibid 14–15. The precise percentages of people for, against or undecided depended on which mechanism for assessing popular support was used.
[13] Ibid 17–21. The opponents of the proposed Act included the Liberal Party (in Opposition in the ACT) and several Church representatives.
[14] Ibid 5.
[15] Ibid 6.
[16] Ibid.
[17] Ibid.
[18] See, eg, the Vienna Declaration of Human Rights: 'All human rights are universal, indivisible, and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis.'
[19] Constitution of the Republic of South Africa 1996, chap 2, Bill of Rights.
[20] Consultative Committee Report, above n 7, 61–2.
[21] Leighton McDonald, 'New Directions in the Australian Bill of Rights Debate' [2004] Public Law 22.
[22] Ibid 24. This is an important issue, but will not be the focus of this article. Nor will this article discuss the new role of the human rights commissioner which is created by the Act.
[23] Human Rights Act 2004
(ACT) ss 43, 44.[24] Human Rights Act 2004 (ACT) s 43(2)(a).
[25] Human Rights Act 2004 (ACT) s 43(2)(b).
[26] Human Rights Act 2004 (ACT) s 44(1)
[27] Human Rights Act 2004 (ACT) s 38.
[28] Human Rights Act 2004 (ACT) s 38(1).
[29] Saunders, above n 5, 532–3.
[30] Elizabeth Kelly, 'Human Rights Act 2004: A New Dawn for Human Rights Protection?' [2004] AIAdminLawF 11; (2004) 41 AIAL Forum 30, 33.
[31] Human Rights Act 2004 (ACT) s 31.
[32] Standing Committee on Legal Affairs, Legislative Assembly for the ACT, Scrutiny of Bills and Subordinate Legislation Report No 44 (2004) 4.
[33] The terms of reference in regards to both Bills and delegated legislation do not seem to have changed even some weeks after the Human Rights Act has come into effect. See Standing Committee on Legal Affairs, Legislative Assembly for the ACT, Scrutiny of Bills and Subordinate Legislation Report No 53 (2004) which was issued on 20 July 2004 with the same terms of references as previous Committee reports.
[34] Human Rights Act 2004 (ACT) ss 37 (1), (2). Cf New Zealand Bill of Rights Act 1990 (NZ) s 7 which only requires the Attorney-General to report to Parliament where a Bill 'appears to be inconsistent with any of the rights and freedoms' in the Bill of Rights. The ACT Act is also clearer than the Human Rights Act 1998 (UK) c 42 which requires in s 19 that a Minister in charge of a Bill must either make a statement of compatibility of the Bill with the European Convention Rights or must state that, even though he or she cannot make such a statement, the House should proceed with the Bill.
[35] Human Rights Act 2004 (ACT) s 37(3).
[36] Human Rights Act 2004 (ACT) s 33.
[37] Human Rights Act 1998 (UK) c 42, s 19. One of the weaknesses that the ACT Act shares with its British counterpart is that there is no provision catering for amendments that might be made during parliamentary debate. See Lord Lester, 'Parliamentary Scrutiny of Legislation under the Human Rights Act 1998' (2002) 33 Victoria University of Wellington Law Review 1, 5.
[38] Paul Rishworth et al, The New Zealand Bill of Rights (2003) 202–9.
[39] A similar approach is taken in the Human Rights Act 1998 (UK) c 42, s 19. There is, however, no obligation to report to the United Kingdom Parliament after a declaration of incompatibility, but certain powers are given to Ministers to fast track legislative amendments that are incompatible with the United Kingdom's obligations under the European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, ETS 5 (entered into force 3 September 1953) (hereafter 'European Convention on Human Rights'). This power is discussed further below.
[40] The advantage of a unicameral legislature is that a government that takes its human rights obligations under the Act seriously can move quickly and decisively to implement its obligations, eg, by modifying pre-existing legislation that is not compatible with human rights.
[41] Max Spry, 'The ACT Human Rights Bill 2003: A Brief Survey' [2004] AIAdminLawF 12; (2004) 41 AIAL Forum 34, 38.
[42] Human Rights Act 2004 (ACT) s 37(3)(b).
[43] For a similar concern in the United Kingdom context see, K D Ewing, 'The Human Rights Act and Parliamentary Democracy' (1999) 62 Modern Law Review 79, 96–7.
[44] The United Kingdom Joint Committee on Human Rights considers itself responsible for assisting Parliament in assessing whether Ministerial s 19 statements have been properly made. See Lester, 'Parliamentary Scrutiny of Legislation', above n 37, 8.
[45] Ibid.
[46] Lord Irvine, 'The Impact of the Human Rights Act: Parliament, the Courts and the Executive' [2003] Public Law 308, 319 where the Lord Chancellor says that a declaration of incompatibility in the UK context means that the view of the Minister as to compatibility 'has been proved wrong in a fully reasoned judgment of a higher court' (emphasis added).
[47] Moonen v Film and Literature Board of Review [1999] NZCA 329; [2000] 2 NZLR 9 (CA). This has also meant that the practice of issuing such declarations is a controversial one in New Zealand. See James Allan, 'Take Heed Australia — A Statutory Bill of Rights and its Inflationary Effect' [2001] DeakinLawRw 17; (2001) 6 Deakin Law Review 322, 328.
[48] Section 92J of the Human Rights Act 1993 (NZ), as amended by the Human Rights Amendment Act 2001 (NZ), permits the making of declarations of incompatibility for infringement of limited, discrimination rights. Section 92K(2) requires the responsible Minister to report to the House in response to the declaration.
[49] Rishworth et al, above n 38, 835.
[50] A useful summary can be found in the judgment of Lord Steyn in Ghaidan v Godin-Mendoza [2004] House of Lords (Unreported, 21 June 2004), appendix to judgment.
[51] R (on the application of H) v North and East London Mental Health Review Tribunal [2001] EWCA Civ 415; [2002] QB 1.
[52] See Spry, above n 41, 38.
[53] For a summary see Richard Clayton, 'Judicial Deference and "Democratic Dialogue": The Legitimacy of Judicial Intervention under the Human Rights Act 1998' [2004] Public Law 33, 44.
[54] As there is no freestanding action to seek a declaration of incompatibility, these circumstances will be quite constrained. Activists who wish to use the courts to demonstrate the incompatibility of particular legislation with human rights principles will have to find another cause of action which will allow them to raise the issue of compatibility.
[55] Kelly, above n 30, 33.
[56] Lord Lester, 'The Magnetism of the Human Rights Act 1998' (2002) 33 Victoria University of Wellington Law Review 477, 483–4.
[57] A recent report by the independent Audit Commission also demonstrates the difficulties in maintaining momentum within the public service for integration of human rights into daily operations. While it reported improvements in many areas, it also noted that 'three years on, the impact of the Act is in danger of stalling and the initial flurry of activity surrounding its introduction has waned'. See Audit Commission, Human Rights: Improving Public Service Delivery (2003) 3.
[58] Human Rights Commission, Consistency 2000 — Report to the Minister of Justice Pursuant to Section 5(1)(k) of the Human Rights Act 1993 (1998).
[59] ACT, Parliamentary Debates, Legislative Assembly, 23 October 2003, 4029 (Jon Stanhope, Chief Minister).
[60] Annual Reports (Government Agencies) Act 2004 (ACT) s 5(2), inserted by Human Rights Act 2004 (ACT) sch 2.
[61] Human Rights Act 2004 (ACT) s 34. Note that, under s 34(2) the Supreme Court may not give a declaration of incompatibility without the Attorney-General having been notified and been given 'reasonable time' to decide whether or not to intervene.
[62] Human Rights Act 2004 (ACT) s 35. The Human Rights Commissioner of the ACT may also intervene with the permission of the Court: s 36.
[63] Judiciary Act 1903 (Cth) s 78B.
[64] Human Rights Act 2004 (ACT) s 28: 'Human rights may be subject only to reasonable limits set by Territory laws that can be demonstrably justified in a free and democratic society'.
[65] For a discussion of the role of the executive in arguing this case and other similar cases in which executive expertise and evidence were useful to the courts, see Irvine, above n 46, 316–18.
[66] Human Rights Act 1998 (UK) c 42 s 10(2). Remedial action is also permitted if the European Court of Human Rights makes a decision that indicates the incompatibility of legislation with the European Convention on Human Rights.
[67] Human Rights Act 1998 (UK) c 42 s 10(2), (3).
[68] Human Rights Act 1998 (UK) c 42 sch 2 outlines the details of remedial orders which must be approved by both Houses of Parliament at some point to remain in force.
[69] Consultative Committee Report, above n 7, 68.
[70] Ibid 73, 80-1.
[71] ACT, Parliamentary Debates, Legislative Assembly, 23 October 2003, 4029 (Jon Stanhope, Chief Minister).
[72] Ibid 4030.
[73] Although the evidence from the United Kingdom so far is that human rights issues tend to be raised in actions that would have existed before the Act rather than in freestanding claims under the Act.
[74] ACT, Parliamentary Debates, Legislative Assembly, 18 November 2003, 4248 (Jon Stanhope, Chief Minister).
[75] Kelly, above n 30, 31.
[76] See, eg, Nicholas Bamforth, 'Parliamentary Sovereignty and the Human Rights Act 1998' [1998] Public Law 572, 574 where the author anticipated the effect of the Act on judicial review where rights 'will act as more than mere guidelines in judicial review cases, where they may assume the status of substantive principles'. See also Paul Craig, 'The Court, the Human Rights Act and Judicial Review' (2001) 117 Law Quarterly Review 589. For an even more radical argument about the potential effect of bills of rights on administrative law in the New Zealand context see Jan Stemplewitz, 'Section 6 of the Bill of Rights Act 1990: A Case for Parliamentary Responsibility for Human Rights and Freedoms' (2002) 33 Victoria University of Wellington Law Review 409.
[77] Smith and Grady v United Kingdom [1999] ECHR 72; (2000) 29 EHRR 493.
[78] R v Secretary of State for the Home Department; ex parte Daly [2001] UKHL 26; [2001] 3 All ER 433. For discussion see Francesca Klug and Claire O'Brien, 'The First Two Years of the Human Rights Act' (2002) Public Law 649, 657–62.
[79] R (Wilkinson) Broadmoor Special Hospital Authority [2001] EWCA Civ 1545; [2002] 1 WLR 419. See also the comment by Philips MR that '[b]efore the introduction of a rights-based culture into English public law these applications for judicial review would have been quite unarguable' in R (P) v Secretary of State of the Home Department [2001] EWCA Civ 1151; [2001] 1 WLR 2002, 2020.
[80] Simpson v Attorney-General [Baigent's Case] [1994] 3 NZLR 667 (CA). For a discussion of the way in which the New Zealand courts have developed monetary compensation for breaches of rights by the executive see Rishworth et al, above n 38, 812-31.
[81] These issues have caused some problems even in the more clearly drafted United Kingdom Act. See Ewing, above n 43, 89-91; Lester, 'The Magnetism of the Human Rights Act 1998', above n 56, 496-9.
[82] Human Rights Act 1998 (UK) c 42 s 6.
[83] New Zealand Bill of Rights Act 1990 (NZ) s 3.
[84] Constitution of the Republic of South Africa 1996, ch 2, s 8.
[85] Constitution Act 1982, being Schedule B to the Constitution Act 1982 (UK) c 11, sch B, s 32(1).
[86] R v A (No 2) [2002] 1 AC 45, 86–7 where it is reiterated that the Act allows for interpretation only and not for judicial legislation.
[87] In the New Zealand context see Thomas J who has held that the Court 'has an interpretative role and while it must, in accordance with Parliament's direction prefer a meaning to any statutory provision which is consistent with the Bill of Rights, it cannot adopt a meaning which is clearly contrary to Parliament's intent' (Quilter v Attorney-General [1997] NZCA 207; [1998] 1 NZLR 523, 541).
[88] In an extra-judicial speech the Chief Justice of the ACT indicated a willingness to be part of a robust protection of human rights. See Chief Justice Terrence Higgins, 'Australia's First Bill of Rights — Testing Judicial Independence and the Human Rights Imperative' (Speech delivered at the National Press Club, 3 March 2004).
[89] Francesca Klug and Keir Starmer, 'Incorporation Through the Back Door?' [1997] Public Law 223, 225. The authors define influential as meaning cases in which the court might have made a different decision if it were not for the Convention.
[90] Klug and O'Brien, above n 78, 650.
[91] Irvine, above n 46, 311–13. Some commentators have also rejected the idea that the ACT Act will lead to a flood of litigation, see Editorial, 'Bill of Rights Acts as Shield' Canberra Times (Canberra), 27 October 2003, but compare to Spry, above n 41, 35.
[92] Irvine, above n 46, 311.
[93] Consultative Committee Report, above n 7, 48.
[94] Clayton, above n 53. Cf Craig, above n 76.
[96] Lester, 'The Magnetism of the Human Rights Act 1998', above n 56, 490.
[97] For example, R (Pretty) v DPP [2001] UKHL 61; [2002] 1 AC 800, 809–10. Bingham LJ states that the House of Lords is 'not a legislative body. Nor is it entitled or fitted to act as a moral or ethical arbiter. It is important to emphasise the nature and limits of the committee's role ... [which] is not to weigh or evaluate or reflect [varying community] beliefs and views or give effect to its own but to ascertain and apply the law of the land': at [2].
[98] A v Secretary of State for the Home Department [2002] EWCA Civ 1502; [2003] 1 All ER 816, where the provisions of the Anti-Terrorism, Crime and Security Act 2001 (UK) c 24 were held not to breach Convention rights even though they discriminated against suspected terrorists on the basis of nationality. Considerable deference was given to the judgments of the government on matters of security.
[99] Craig, above n 76; Richard Edwards, 'Judicial Deference under the Human Rights Act' (2002) 65 Modern Law Review 859, 868 criticises some judicial decisions as 'judicial avoidance' of their obligations under the Act.
[100] Although, as Janet McLean argues, an interpretative provision can do a good deal of the same work as a constitutional provision that gives judges the power to strike down legislation. See McLean, above n 4.
[101] For a more detailed discussion see Rishworth et al, above n 38, ch 28.
[102] It has been referred to in the recent Victorian Justice Statement in its discussion of the need for a Charter of Rights. See Rob Hulls, New Directions for the Victorian Justice System (2004) 54.
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