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, Saunders, Cheryl, 'Protecting Rights in Common Law Constitutional Systems: A Framework for a Comparative Study' (2002) 33 Victoria University of Wellington Law Review 507CrossRefGoogle Scholar; Debeljak, Julie, 'Rights Protection without Judicial Supremacy: A Review of the Canadian and British Models of Bills of Rights' (2002) 26 Melbourne University Law Review 285.Google Scholar

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 McDonald, Leighton, 'New Directions in the Australian Bill of Rights Debate' [2004] Public Law 22.Google Scholar

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 Kelly, Elizabeth, 'Human Rights Act 2004: A New Dawn for Human Rights Protection?'(2004) 41 AIAL Forum 30, 33.Google Scholar

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 Rishworth, Paul et al, The New Zealand Bill of Rights (2003) 202-9.Google Scholar

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 Spry, Max, 'The ACT Human Rights Bill 2003: A Brief Survey' (2004) 41 AIAL Forum 34, 38.Google Scholar

⁴² Human Rights Act 2004 (ACT) s 37(3)(b).

⁴³ For a similar concern in the United Kingdom context see, Ewing, K D, 'The Human Rights Act and Parliamentary Democracy' (1999) 62 Modern Law Review 79, 96-7.CrossRefGoogle Scholar

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 Irvine, Lord, 'The Impact of the Human Rights Act: Parliament, the Courts and the Executive' [2003] Public Law 308, 319Google Scholar 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 [2000] 2 NZLR 9 (CA). This has also meant that the practice of issuing such declarations is a controversial one in New Zealand. See Allan, James, 'Take Heed Australia — A Statutory Bill of Rights and its Inflationary Effect' (2001) 6 Deakin Law Review 322, 328.Google Scholar

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 [2002] QB 1.

⁵² See Spry, above n 41, 38.

⁵³ For a summary see Clayton, Richard, 'Judicial Deference and “Democratic Dialogue”: The Legitimacy of Judicial Intervention under the Human Rights Act 1998' [2004] Public Law 33, 44.Google Scholar

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 Lester, Lord, 'The Magnetism of the Human Rights Act 1998' (2002) 33 Victoria University of Wellington Law Review 477, 483–4.CrossRefGoogle Scholar

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, Bamforth, Nicholas, 'Parliamentary Sovereignty and the Human Rights Act 1998' [1998] Public Law 572, 574Google Scholar 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 Craig, Paul, 'The Court, the Human Rights Act and Judicial Review' (2001) 117 Law Quarterly Review 589Google Scholar. For an even more radical argument about the potential effect of bills of rights on administrative law in the New Zealand context see Stemplewitz, Jan, '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.CrossRefGoogle Scholar

⁷⁷ Smith and Grady v United Kingdom (2000) 29 EHRR 493.

⁷⁸ R v Secretary of State for the Home Department; ex parte Daly [2001] 3 All ER 433. For discussion see Klug, Francesca and O'Brien, Claire, 'The First Two Years of the Human Rights Act' (2002) Public Law 649, 657-62.Google Scholar

⁷⁹ R (Wilkinson) Broadmoor Special Hospital Authority [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] 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 AttorneyGeneral [1998] 1 NZLR 523, 541).

⁸⁸ In an extrajudicial 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 Klug, Francesca and Starmer, Keir, 'Incorporation Through the Back Door?' [1997] Public Law 223, 225Google Scholar. 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.

⁹⁵ [2002] 1 AC 45.

⁹⁶ Lester, 'The Magnetism of the Human Rights Act 1998', above n 56, 490.

⁹⁷ For example, R (Pretty) v DPP [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 [2003] 1 All ER 816, where the provisions of the AntiTerrorism, 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; Edwards, Richard, 'Judicial Deference under the Human Rights Act' (2002) 65 Modern Law Review 859, 868CrossRefGoogle Scholar 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 Hulls, Rob, New Directions for the Victorian Justice System (2004) 54.Google Scholar