NSW law review body laments lack of bill of rights

The NSW Parliament’s own legislative review body laments the absence of a bill of rights in Australia, and in NSW, in a new report. The NSW Legislative Review Committee also says that half the Bills presented to the NSW Parliament over the past five years "unduly trespass(ed) on personal rights and liberties".

NSW parliament’s review body laments lack of bill of rights

By Bill Rowlings*, CLA CEO

NSW’s own parliamentary legislative review body laments the absence of a state or national bill of rights in a new publication released just in time to contribute to an Australia-wide debate on the need for a charter of rights and responsibilities.

“In the absence of an Australian or New South Wales Bill of Rights, there is no agreed defined set of rights to which the Parliament should have regard,” the Legislative Review Committee (LRC) says in outlining the difficulty it has in evaluating proposed new laws without a benchmark against which to measure them.

The LRC also comments that “unduly trespassing on personal rights and liberties” was the main problem highlighted by scrutiny of hundreds of proposed Bills over the past five years.

The LRC’s comments are contained in a document entitled Report No 2 – 16 June 20081

Analysing the 500-plus reports made by the NSW committee since 2003, the LRC says it was most concerned about:

  • the right to silence and presumption of innocence; 
  • the onus of proof; 
  • retrospectivity; 
  • the rule of law; and 
  • the delegation of administrative and legislative powers.  

Other issues commented on include:

  • denying compensation rights;
  • excluding merits review or judicial review; 
  • infringing on the right to privacy; and
  • restricting freedom of speech.

These are the classic ‘meat and drink’ issues which charters of rights address. The NSW LRC’s comments, and particularly the timing of the report’s release, provide a strong indication that the most relevant NSW parliamentary committee is coming down firmly on the side of a charter of rights in Australia…and in NSW.

Background

Established in 2003, the NSW LRC replaced the Regulation Review Committee (which had reviewed subordinate legislation only). Five Members from the Legislative Assembly and three from the Legislative Council make up the LRC.  In July 2007, there were four government members, three opposition and one cross-bencher.

The LRC grew out of the NSW Legislative Council’s Law and Justice Committee’s (L&JC) 2001 report on its public inquiry into a Bill of Rights for NSW…which rejected the idea of a bill of rights2.

However, the even the negative L&JC report acknowledged that the NSW Parliament had not always done a good job of protecting the rights of individuals, and – in place of a bill of rights – it recommended the setting up a parliamentary scrutiny of bills committee which would follow “the examples set by the Senate, Queensland, Victoria and the ACT Parliaments”, and would enable Parliament to better protect and promote human rights in NSW3

The NSW LRC’s terms of reference are similar to that of the Senate Scrutiny of Bills Committee and are set out in sections 8A and 9 of the NSW Legislation Review Act 1987.

Section 8A (1) provides that the functions of the Committee with respect to Bills are:

  • to consider any Bill introduced into Parliament; and
  • to report to Parliament as to whether any such Bill, by express words or otherwise:
    • trespasses unduly on personal rights and liberties, or
    • makes rights, liberties or obligations unduly dependent upon insufficiently defined administrative powers, or
    • makes rights, liberties or obligations unduly dependent upon non-reviewable decisions, or
    • inappropriately delegates legislative powers, or
    • insufficiently subjects the exercise of legislative power to parliamentary scrutiny.

The LRC also scrutinises all regulations subject to disallowance by resolution of parliament.

Since starting to review Bills in August 2003, the LRC has reported to the NSW Parliament on all 510 Bills introduced, by publishing 57 Legislation Review Digests.
Commenting on the difficulties it faces, the LRC said that “In the absence of an Australian or New South Wales Bill of Rights, there is no agreed defined set of rights to which the Parliament should have regard.”  
In exercising its scrutiny function, the LRC takes into account: 

  • the common law, as developed  – and continuing to develop – by the courts of
  • various common law jurisdictions; 
  • statutory and constitutional rights, liberties and traditions; 
  • international conventions ratified by Australia;
  • human rights jurisprudence from other jurisdictions,
  • academic and public debate; and 
  • the LRC Members’ own views.  

“Some widely recognised rights, such as the privilege against self-incrimination, have long-standing traditions, pre-dating even English common law,” the LRC says. “Other rights are new to Australian law, and their scope and application are developing along with changes in society and technology.  

“The personal right to privacy provides a good example. The increasing volume of personal data collected by government agencies, together with technological advances for storing and using that data and new means of publication, have the potential to trespass on this important right.”
The report says that the LRC frequently refers to precedents of other countries with established rights traditions to better inform itself.  In exercising its scrutiny function, it often refers to:

  • relevant State and Commonwealth legislation;
  • judicial decisions in NSW, the Commonwealth, and in other common law jurisdictions including Canada, New Zealand and the United Kingdom;
  • decisions of human rights bodies such as the European Court of Human Rights;
  • reports of Law Reform Commissions, Parliamentary Committees and Commissions of Inquiry;
  • respected legal journal articles and teaching materials; and
  • the work of the other scrutiny of bills committees.

The areas of most significant concern commented on by the Committee relate to:

  • the right to silence and presumption of innocence; 
  • the onus of proof; 
  • retrospectivity; 
  • the rule of law; and
  • the delegation of administrative and legislative powers.  

Other issues commented on include:

  • denying compensation rights;
  • excluding merits review or judicial review; 
  • infringing on the right to privacy; and
  • restricting freedom of speech.

Most concerns have come under the heading “unduly trespassing on personal rights and liberties”, the LRC says in its report. “The Committee has so far commented on this ground in respect of 203 bills” (just on 50 per cent of the Bills analysed).

“These bills fell broadly into two categories. The first group, by far the larger of the two, mostly comprises bills that regulate the ‘ordinary’ areas of public life such as new legislative frameworks for the conduct and performance of public school teachers or regulated companion animals.  The trespasses identified by the Committee did not involve gross violations of rights.  However, when taken together they sometimes revealed more significant patterns of trespass over time.
“The second group of bills were mostly high profile and controversial and, due to their subject matter, were always going to raise human rights issues. Examples of these were anti-terror bills, bills relating to sex offences and bills that alter fundamental human rights such as the abolition of the double jeopardy rule.”

1 The contents of the LRC Report were first presented at a Scrutiny of Legislation conference in Wellington, NZ, from 31 July to 2 August 2007.

2 Critics says the 2001 NSW report was ‘guided’ by the attitude of then-NSW Premier Bob Carr, who continues to maintain that a charter of rights gives too much power to judges…when it is, according to his argument, politicians who should have maximum power.

3 Two – ACT and Victoria – of those four exemplar parliaments have since enacted their own ‘charters of human rights’.

 

*  The author is chief executive officer of CLA, and a regular media commentator on rights issues.

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