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AFUW-ACT
Inc. Meeting Report
Speaker: Dr Adriene Stone from
ANU at the annual dinner in February
Dr Adrienne Stone is a fellow in the Law Program at the Australian National
University.! She was educated at the University of New South Wales and
Columbia Law School in the United States.! She researches and writes
in the areas of constitutional law and constitutional rights. She is
currently working on research projects in the area of freedom of speech
and Bills of Rights.
The ACT government has taken a bold step in introducing a Bill of Rights
in a country, which has steadfastly resisted the idea. On the world
scene Australia is unusual. Most democracies have adopted one of some
sort - New Zealand, Canada and the United Kingdom. The Unite States
Constitution is the inspiration for it where there is a catalogue of
written rights, which are difficult to amend and which the judiciary
can enforce. These features give the Supreme Court extraordinary powers.
The ACT proposal is much closer to the rights in other Commonwealth
countries.
Canada is similar to the US but can override where the US can't. In
the UK the powers of the courts are weaker and public authorities are
required to conform to the requirements.
The ACT contains some of these features - an interpretation requirement,
A declaration of incompatibility, the ACT Act would make ACT different
from other Australian polities but much more like NZ, Canada and the
UK.
ARGUMENTS AGAINST a BILL OF RIGHTS -
Human rights in Australia could be improved but are not poor. The rhetoric
of the Bill can be too aggressive for the truly marginalized. It is
undemocratic to give judges this power. The ACT Bill does not give the
courts the final say.
DIALOGUE METHOD
Dialogue is meant to capture the interaction between the courts and
the legislatures and both are involved in determining whether laws violate
rights.
In the ACT proposal the proposed Human Rights Act requires the Legislative
Assembly to consider how all Bills presented by Government affect rights.
A law can be challenged in court but the Court has limited power. The
final say lies with the Legislative Assembly, the democratically elected
body.
Adriene has some reservations -For there to be meaningful dialogue there
must be a real opportunity for the Legislature to respond. There is
a danger that rights will become associated with legal interpretations.
In the drafting of the requirement in the ACT Human Rights Act language
used is not seen in similar Acts; the drafters would have done better
to have adopted the language used in larger more established jurisdictions.
The worry is that their focus will be on the meaning of words rather
than how best to protect rights.
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