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A NSW Bill of Rights Report October 2001

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A NSW Bill of Rights Report October 2001 STANDING COMMITTEE ON LAW AND JUSTICE Standing Committee on Law and Justice A NSW Bill of Rights Ordered to be printed 3 October 2001 according to Resolution of the House Report 17 – October 2001 i STANDING COMMITTEE ON LAW AND JUSTICE New South Wales Parliamentary Library cataloguing-in-publication data: New South Wales. Parliament. Legislative Council. Standing Committee on Law and Justice A NSW Bill of Rights / Standing Committee on Law and Justice. [Sydney, N.S.W.] :The Committee, 2001. – 215 p. ; 30 cm. (Parliamentary paper ; no 893) (Report 17, October 2001) Chair: Ron Dyer. “Ordered to be printed 3 October 2001 according to Resolution of the House”. ISBN 0731353722 Civil rights—New South Wales—Legislation. Human rights—New South Wales. Constitutional amendments—New South Wales. I. Title Dyer, Ron. Series: Parliamentary paper (New South Wales. Parliament) ; no. 893 Series: New South Wales. Parliament. Legislative Council. Standing Committee on Law and Justice Report ; 17 323.09944 (DDC21) ii Report 17 - October 2001 STANDING COMMITTEE ON LAW AND JUSTICE How to contact the committee Members of the Standing Committee on Law and Justice can be contacted through the Committee Secretariat. Written correspondence and enquiries should be directed to: The Director Standing Committee on Law and Justice Legislative Council Parliament House, Macquarie Street Sydney New South Wales 2000 Internet www.parliament.nsw.gov.au Email [email protected] Telephone 9230 3311 Facsimile 9230 3371 Report 17 – October 2001 iii STANDING COMMITTEE ON LAW AND JUSTICE Terms of Reference That the Standing Committee on Law and Justice undertake an Inquiry into and report on whether it is appropriate and in the public interest to enact a statutory New South Wales Bill of Rights and/or whether amendments should be made to the Interpretation Act 1987 to require courts to take into account rights contained in International Conventions, with particular reference to: a) whether the rights declared in the International Covenant on Civil and Political Rights should be incorporated into domestic law by such a Bill of Rights; b) whether economic, social and cultural rights, group rights and the rights of indigenous people should be included in a Bill of Rights; c) whether individual responsibilities as distinct from rights should be included in a Bill of Rights; d) the consequences for Australian common law of Bill of Rights in the United Kingdom, Canada and New Zealand; e) in what circumstances Parliament might exercise its ultimate authority to override basic rights declared in a Bill of Rights and what procedures need to be put in place to ensure that any such overriding legislation complies with the Bill of Rights; f) the circumstances, if any, in which a Bill of Rights should be binding on individuals as distinct from the Legislative, Executive and Judicial arms of Government and persons or bodies performing a public function or exercising a public power under legislation; g) the extent and manner in which the rights declared in a Bill of Rights should be enforceable; h) whether a Bill of Rights should be subject to any reasonable limits prescribed by law that are demonstrably justifiable in a free and democratic society; i) whether there should be a legislative requirement on courts to construe legislation in a manner which is compatible with international human rights instruments; and j) any other matter arising out of or incidental to these terms of reference. These terms of reference were referred to the Committee by the then Attorney General, the Hon Jeff Shaw QC MLC on 18 November 1999. iv Report 17 - October 2001 STANDING COMMITTEE ON LAW AND JUSTICE Committee Membership The Hon Ron Dyer MLC Australian Labor Party Chair The Hon John Ryan MLC Liberal Party Deputy Chair The Hon Peter Breen MLC Reform the Legal System Member The Hon John Hatzistergos MLC Australian Labor Party Member The Hon Janelle Saffin MLC Australian Labor Party Member Report 17 – October 2001 v STANDING COMMITTEE ON LAW AND JUSTICE Table of Contents Chair’s Foreword x Executive Summary xi Summary of Recommendations xv Chapter 1 Introduction 1 Reference from the Attorney General 1 Conduct of this Inquiry 2 Structure of this Report 3 Chapter 2 Meaning and sources of Human Rights 5 Introduction 5 The Meaning of “Human Rights” 5 Definitions 5 Limits on Human Rights 7 Rights and Responsibilities 9 Major International Covenants 9 Human Rights Protection in NSW 10 Protections under the Constitution 11 Protection of Rights in Federal Legislation 12 Protections of Rights in NSW Legislation 13 Common Law protections 13 International Remedies 14 The Adequacy of Current Protections 15 Chapter 3 History of Bills of Rights in Australia 16 Introduction 16 Federation to World War Two 16 Federation 16 1944 Referendum 17 Post War to the 1980s 18 Queensland 1959 Proposal 18 Federal Human Rights Bill 1973 18 Federal Bill of Rights Proposals in the 1980s 19 Inquiry by the Victorian Legal and Constitutional Committee 20 vi Report 17 - October 2001 STANDING COMMITTEE ON LAW AND JUSTICE Queensland Inquiries 21 Electoral and Administrative Review Commission inquiry 21 Queensland Parliamentary inquiry 22 ACT Proposal 23 Current Pressures for a Bill of Rights 23 Chapter 4 Models of Bills of Rights 25 Introduction 25 The United States Bill of Rights 25 Rights Protected 26 Views on the US Bill of Rights 26 Canadian Charter of Rights and Freedoms 29 Rights Protected 29 Limits on Rights 30 Views on the Charter 31 New Zealand Bill of Rights Act 32 Rights Protected 33 Limitations on rights 33 Views on the Bill 34 UK Human Rights Act 35 Rights Protected 35 Limits on Rights 36 Pre-enactment checks and balances 36 Views on the Act 38 South African Bill of Rights 38 Rights Protected 38 Views on the Bill 39 Bill of Rights in a Federation 40 Statutory Bill of Rights Compared to Constitutional Entrenchment 40 Override Provisions 44 Limitation clauses 47 A Bill Provides Enforceable Rights 48 Conclusion 50 Chapter 5 Arguments in Favour of a NSW Bill of Rights 51 Introduction 51 Report 17 – October 2001 vii STANDING COMMITTEE ON LAW AND JUSTICE Educative Value 52 Rights can be more easily accessible 52 Development of a Human Rights Culture in Political Debate 53 Development of a Human Rights Culture in the Bureaucracy 55 Inadequate protections in existing laws 56 Weakness of the Common Law 58 Weaknesses of Statutory Protections 61 Inadequate Protection of Minorities under Existing Law 62 Economic, Social and Cultural Rights of Minorities 63 Human Rights and People with Disabilities 64 The Rights of Indigenous Peoples 66 Gender Inequality 70 International isolation of domestic law 71 Facilitation of Dialogue between the Judiciary and the Parliament 73 Conclusion 77 Chapter 6 Arguments Against a NSW Bill of Rights 78 Introduction 78 A Bill undermines the roles of both Parliament and the Courts 79 Undermines Parliamentary Supremacy 80 Judicial Policymaking: Legalising Political Decisions 81 Politicisation of the Judiciary 83 Democratic Process as Guardian of Human Rights 85 A Bill would create Uncertainty 87 Uncertainty is unavoidable in Bill of Rights 87 The Costs of Uncertainty 88 Uncertainty encourages speculative cases 90 Rights can be given unpredictable interpretations 91 No consensus on which rights to include in a Bill 93 A Bill Increases Litigation 96 Canadian and New Zealand Experience 97 Creation of new areas of litigation 99 Using Courts as a Political Forum 100 Lack of a Bill does not isolate domestic common law 101 A Bill favours Rights instead of Responsibilities 104 A Bill could lead to harmful intrusions into private organisations 105 Conclusion 109 viii Report 17 - October 2001 STANDING COMMITTEE ON LAW AND JUSTICE Chapter 7 The Committee’s View 110 Chapter 8 Parliamentary Scrutiny and Protection of Rights 115 Introduction 115 Models of Scrutiny of Legislation in Australia 117 Senate Standing Committee for the Scrutiny of Bills 117 Queensland Scrutiny of Legislation Committee 119 Victorian Scrutiny of Acts and Regulations Committee 121 NSW Regulation Review Committee 122 Arguments in Favour of a Scrutiny Committee 123 Raising Parliamentarians’ awareness of responsibility for Human Rights 124 Introducing Human Rights into Political Debate 124 Flexibility and Encouragement of Dialogue 125 Allows Overview of Repeated Problems in Legislation 126 Arguments Against a Parliamentary Scrutiny Committee 126 Scrutiny Committees can be ignored 127 Scrutiny can bypass human rights standards 127 Failure to Develop a Political Culture of Respect for Human Rights 128 Time Pressure of Legislative Program 129 Recommendations for a NSW Scrutiny of Legislation Committee 129 Structure of committee 130 Statutory Framework or Standing Orders 130 Joint or Single House committee 132 Joint or single function Committee 132 Chapter 9 The Interpretation Act and International Human Rights Instruments 133 Appendix One Submissions and Letters received 141 Appendix Two Witnesses at Hearings; Committee visits to Canberra and Brisbane 147 Appendix Three Minutes of the Proceedings 151 Appendix Four Universal Declaration of Human Rights 155 Appendix Five International Covenant on Civil and Political Rights 161 Appendix Six International Covenant on Economic, Social and Cultural Rights 175 Appendix Seven Extract of a Report from the Senate Standing Committee for Scrutiny of Bills 186 Appendix Eight Queensland Scrutiny of Legislation Committee assessment of impact of its work 194 Appendix Nine Dissenting Report 202 Report 17 – October 2001 ix STANDING COMMITTEE ON LAW AND JUSTICE Chair’s Foreword The Standing Committee on Law and Justice inquiry into a statutory Bill of Rights for NSW deals with some of the most important issues within our political and legal system. The rights and liberties enjoyed by residents of New South Wales, the role of the judiciary and the extent of the powers of Parliament are crucial to our democratic system.
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