Respecting international human rights

Greens MP Jamie Parker spoke in the NSW Parliament about the importance of taking into account international human rights obligations when making state laws.

Watch his speech here, or read the transcript below:

Mr JAMIE PARKER (Balmain) [10.36 a.m.]: I acknowledge the effort that the member for Liverpool has put into developing the Interpretation Amendment (International Human Rights Obligation) Bill 2012. A consultation paper was distributed and extensive discussions were held with a range of legal organisations and individuals. That is a positive path for a private member's bill to follow and this debate is a result of that process. However, the broad-ranging debate occurring today seems to be about a proposal that is not before the House. In essence, this is an incredibly modest bill: it simply seeks to provide additional guidance when legislation is ambiguous. This is not a bill of rights. The Greens support the introduction of a bill of rights and I would love to be debating such a bill because it would be an important step forward and a solid contribution to protecting civil and political rights in this State.

This bill cannot lead to any outcomes that are inconsistent with Acts of Parliament. Members have said that it will undermine sovereignty and that it is a threat to democracy. It is not about inconsistencies between Acts of Parliament; it is simply about interpretation. As I said, this State does not have a bill of rights, so there is no democratic direction to the courts on what those rights should be. This bill simply seeks to address that issue. It is about setting parameters for and supporting courts rather than letting judges rely on their intuition, feelings or personal prejudices. It simply provides direction in the case of ambiguity. Members of the legal community expressed some concerns that the member for Liverpool mentioned in his second reading speech, and I will address them because they deserve further discussion and examination. The member referred to some points raised by the former President of the Law Society Mr Justin Dowd. Referring to the society's Human Rights Committee, he stated:
The Committee congratulates you on your proposal to amend the Interpretation Act 1987 to require courts to construe legislation in a manner that is consistent with human rights obligations, and strongly encourages you to introduce a private member's bill in this regard. The Committee supports the enactment of a human rights Act in New South Wales, but notes that if passed, this amendment would represent a significant advancement—
The important point is it simply requires courts to construe legislation in a manner that is consistent with human rights obligations. It is not contrary to the legislation that is being examined at the time; it is not in direct rebuttal to any Acts that have been agreed by Parliament but would simply assist the courts in that process. The Greens' view is that it is a worthwhile process and an obligation that would support and assist the democratic process to ensure that the decisions of this Parliament were enacted in a way that reflected the views of Parliament, subject to the interpretation of the Acts that have been laid out in the bill introduced by the member for Liverpool. It is also worthwhile to review further comments that were made in a letter from the President of the Law Society, who noted that State Parliament should observe international law. The country as a whole is bound by obligations. In the second reading speech the member for Liverpool quoted the society as saying:
Enacting legislation such as that which you suggest would see Australia moving towards complying with its international obligations.
The member for Liverpool said:

Likewise the Gilbert and Tobin Centre of Public Law wrote as follows:

We welcome the proposal to amend the Interpretation Act 1987 (NSW) to require courts to construe legislation in a manner that is consistent with human rights obligations, insofar as it is possible to do so consistently with Parliament's purpose in enacting the legislation …
That is a key point. It seems to me that the debate we are having today is about a bill of rights. It is about a whole range of other matters. But this very modest bill introduced by the member for Liverpool restores Parliament to its proper place; it sets out a proper basis for human rights interpretation when there is uncertain or ambiguous legislation. As far as I understand it, they are the terms of the legislation that is proposed. The bill ensures that in areas of uncertainty there is a proper basis for interpretation using the treaties that are set out in the bill. It does not leave the decisions exclusively to the unelected judiciary. Parliament sets the tone and the basis for interpretation and it is not up to the unelected judiciary to decide the interpretation. That is set out quite modestly and clearly in this bill. This bill builds on the common law tradition and codifies that tradition in relation to human rights in particular.

The member for Liverpool has consulted widely about the bill. There is a great deal of support in the Liberal fraternity for this issue. It does not threaten the basis of democracy as we know it. It does not undermine decisions of this Parliament. It provides reasonable and modest direction to the judiciary around matters where there is uncertainty or ambiguity. I encourage the debates that other members have raised. Let us debate those issues. Let us debate human rights but, where there is ambiguity, it is important that there be a clear set of treaties that the judiciary can use to decide on the interpretation. I think this is a very modest step forward. It is worthwhile. I hope that it will be the beginning of a debate in this House, the Australian Labor Party and the Coalition about a bill of rights and its importance. I do not intend taking the time of the House to discuss that in detail, because it is a separate matter. I commend the bill to the House.

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