Responsibility for Rights: The Act Human Rights Act

Published date01 June 2004
Date01 June 2004
Subject MatterComment
Carolyn Evans*
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 governance2 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
* 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
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
<> at 3 March 2004. The Prime
Minister also criticised the Act in an interview with John Laws on radio 2UE on 8 March
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)
<> 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.
292 Federal Law Review Volume 32
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.
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) 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
8 Ibid 43–55.

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