1985 — 86

THE PARLIAMENT OF THE COMMONWEALTH 0F AUSTRALIA

HOUSE OF REPRESENTATIVES

AUSTRALIAN BILL OF RiGHTS BiLL 1985

EXPLANATORYMEMORANDUM

$(Circnlated J�ythc~authority the Honour ~~Lione1 ~D~p~y~PrimeMinister and At~9flhey .General)

15405/85 Cat. No. 8548154

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Printed by Authority by the Commonwealth Government Printer

AUSTRALiAN BiLL OF RiGHTS BiLL 19b5

OUTLiNE

Ihe purpose of the Bill is to implement the international

Covenant on Civil and Political Rights by enacting an

Australian Bill of Rights, intended to protect all persons in

Australia against infringements of their fundamental civil and

political rights and freedoms by governments. This protection

is sought to be secured in three ways. These are -

The Bill of Rights is to operate as a guide to the

judicial interpretation of Commonwealth and Territory

(other than Northern Territory) laws, so that as tar as‘ possible laws are construed in such a way as not to

contlict with the Bill of Rights;

The Bill of Rights is itself to have the force of law, so

that when any future Commonwealth or Territory (other than

Northern Territory) law (and, after 5 years, any earlier

Commonwealth or Territory law) conflicts with the Bill of

Rights, the Bill of Rights will prevail and the

inconsistent law will be inoperative (or repealed). These

provisions are subject to -

later Commonwealth Acts not including an explicitintention to prevail over the Bill of Rights, and

- provisions giving a delayed operation to the Bill of

Rights where the courts are satisfied that grave public

inconvenience or hardship would be caused;

The Human Rights and Equal Opportunity Commission will be

empowered to investigate complaints about governmental

acts or practices which may infringe the Bill of Rights -

this will include the functions of attempting, by

conciliation, to effect settlement of complaints and

reporting to the Minister. The Commission will also be

2.

empowered to report on Commonwealth. State and Territory

laws (or proposed laws) which nay infringe the Bill of

Rights.

~3tatemen t of Financial_!~Q~ct

The proposals contained in the Australian Bill of Rights Bill

are expected to have a direct cost to the (~overnment.

additional to the expenditure already forecast for the Human

Rights Commission. of $35o.000 in financial year 1985/86 and

$1.4 million in each of financial years 1986/87 and 1987/88.

There may be some additional costs to Departments and

authorities in responding to inquiries by the Human Rights and

Equal Opportunity Commission and in undertaking a review of

legislation. These costs are not expected to be great having

regard to the existing functions of the Human Rights

Commission and Australia’s existing obligations under the

Covenant, it is not anticipated that there will be any

significant tinancial impact from this legislation on industry

or other financial sections of the community as the Bill deals

with the rights of individuals vis—a--vis Government.

a

3.

NOTES ON CLAUSES

PART I - PRELiMiNARY

Clause I - Short Title

1.. Fornal.

Clause 2 Commencement

2. Clauses I (Short Title), 2 (Commencement). 3 (Objects)

and 50 (Regulations) will come into operation on Royal

Assent. Ihe remaining clauses, except for clause 11. will

come into operation on a date to be fixed by Proclamation.

Clause Ii will take effect 5 years after the date fixed by

Proclamation - this so-called “sunrise” provision will effect

a deemed repeal of prior inconsistent Commonwealth and

Territory (excluding NortheLn Territory) laws. The delayed

commencement of clause 11 will give Departments and Territory

Administrations time to examine laws administered by them and

take any action necessary to amend or preserve the operation

of laws considered to be in conflict with the Bill of Rights.

Clause 3-Objects

P3. The objects of the Bill are -

(a) to promote universal respect for human rights and

fundamental freedoms and their observance without

discrimination;

(b) to give effect to certain provisions of the Covenant;

(c) to ensure an effective remedy to any person whose rights

or freedoms as set out in the Bill of Rights are infringed

by or under any law to which the Bill of Rights applies;

and

4.

(d) to promote, enhance and secure as paramount objectives the

freedom and dignity of the human person, equality of

opportunity for all and full and tree participation by all

Australians in public affairs and public debate.

4. This clause should be read with sub-clause 4(5).

especially as regards the importance of the paramount

objectives which are referred to in paragraph (d) above in

resolving conflicts where the promotion of one right set out

in the Bill of Rights may infringe another right or the

promotion of one person’s rights as set out in the Bill of

Rights may infringe the rights of another person. -

Clause 4 — Interpretation

5. Sub-clause 4(1) contains definition provisions. Matters

of note are --

“Covenant” is defined to mean the international Covenant

on Civil and Political Rights as that Covenant applies in

relation to Australia. As so defined, Covenant refers only

to those obligations accepted by Australia having regard

to the reservations Australia has made to Articles 10. 14

and 20 of the Covenant.

“enactment” is defined in respect of the Commonwealth,

State and all Territory jurisdictions to include

instruments, which are in turn defined to include rules,

regulations and by-laws. ‘rhose definitions are intended

to cover, in particular, local government rules and

by-laws.

“act” extends to acts by the Commonwealth, a State or a

‘rerritory, or by an authority of the Commonwealth. a State

or a ‘I’erritory. The effect, consistent with the concept

5,

that a Bill of Rights governs relations between the

individual and the State. is that only governmental acts

ate Covered by the Bill, not acts by private individuals

or corporations. As far as Australian citizens are

concerned, the acts may be done anywhere by Australian

Governments, but in the case of non-citizens they must be

done in Australia.

“practice” is defined similarly to “act” such that it

b includes only governmental practices and, in respect of

Australian citizens, includes practices engaged in

anywhere but, in respect of non-citizens, includes only

practices engaged in in Australia.

6. Sub-clause 4(2) provides for references to the Governor of

a State to be construed, in relation to the Northern

Territory, as references to the Administrator of the Northern

Territory.

7. Sub-clause 4(3) provides that a reference to the doing of

an act includes a refusal or failure to do an act. The

sub-clause also permits any unincorporated body of persons

Pthat performs an act or practice to which the Act applies to

be treated as a body rather than as individual persons. This

will assist the Human Rights and Equal Opportunity Commission

in its dealings with, for example, an unincorporated advisory

committee,

8. Sub—clause 4(4) sets out the circumstances in which a law

shall be taken to be in conflict with the Bill of Rights.

9. Sub-clause 4(5) makes special provision for cases of

conflict between guaranteed rights (for instance, between free

speech and privacy). In such situations the operation of a

law may simultaneously promote one guarantee in the Bill of

Rights while infringing or limiting another. To determine

6.

whether such a law conflicts with the Bill of Rights, the

courts will sometimes find it necessary, in effect, to strike

a balance between the conflicting rights and freedoms involved

in the context of the particular law and of the factual

situation. The intended effect of sub--clause (5) is that, in

striking such a balance, the courts will be guided by the

objects set out in clause 3 of the Bill and, in particular, by

the “paramount objectives” set out in clause 3(d).

10. It should be emphasised that the guiding statement of

objectives in clause 3(d) does not attempt to pick out

specific guarantees of rights and assign to those rights an

automatic priority over others, thereby establishing a rigid

“hierarchy” of rights. Rather, clause 3(d) seeks to

articulate certain broader and more fundamental values

underlying the whole Bill of Rights. The intention is that in

each case of conflict the courts should seek that solution

which, in that particular context, best promotes these

underlying values,

II. Sub-clause 4(6) ensures that the rights secured are those

set out in the Bill of Rights, subject only to the limitations

permitted by Article 3 of the Bill of Rights.

12. For the purpose of determining the operation of the Bill

of Rights in relation to enactments containing provisions that

came into operation on different dates, sub--clause (7)

requires a reference to the date on which an enactment came

into force to be read as a reference to the date on which the

relevant provision of the enactment came into force.

13. Sub-clause 4(8) provides that an Act is to be taken to

have been enacted at the time when it receives the Royal

Assent,

7.

1.4. Sub-clause 4(9) provides that a reference to prejudice to

the security, defence or international relations of Australia

includes a reference to any such prejudice that might result

from the divulging of information or matter communicated in

confidence by or on behalf of a foreign government or an

agency of a foreign government.

clause 5 - Inte~pçetation of Bill of Rights

) is. this clause requires each Article of the Bill of Rights

(set out in clause B of the Bill) to be treated as a section

of the Australian Bill of Rights Act.

Clause 6 - Extent to which_Act binds the Crown

16. Sub-clause 6(1) provides that the Act binds the Crown in

right of the Commonwealth and of Norfolk Island. Sub--clause

6(2) provides that Part V of the Bill, and other provisions in

their application in relation to that Part, also bind the

Crown in right of each State (which for the purpose of the

Bill includes the Northern Territory). However, nothing in

the Act renders the Crown liable to be prosecuted for an

offence (sub-clause 6(3)).

Clause 1 - Extension to external Territories

ri. This clause extends the Act to every external Territory.

While clauses 6 and 7 deal with matters for which it is

necessary to make explicit statutory provision, these clauses

are not intended to limit the extraterritorial operation the

Bill might otherwise have. Sub--clause 9(2) and the

definitions of “act” and “practice” (see sub—clause 4(1)) make

it clear that the Bill of Rights is to operate for the benefit

of all Australian citizens in their dealings with Australian

governments. Thus an Australian citizen engaged in dealings

overseas with an Australian government agency would be

entitled to the protection of his or her rights and freedoms

set out in the Bill of Rights as secured by the Bill.

B

PART II - THE AUSTRALIAN BILL OF RIGHTS

laul an B i 3-1 of ~jj~ts

18 The Australian Bill of Rights (ABR) is set out in clau.~e B

of the Bill. In addition to its legal effects, it is intended

to operate as an inspirational charter for the Australian

community. It is therefore drafted, so far as is possible, in

clear and simple language. It consists of 32 Articles

arranged in six Divisions.

19 [he 32 Articles of the Bill of Rights are the major

substantive provisions of the Bill and their placement within

clause B ensures that they are presented as prominently as

possible. At the same time, the separate enumeration of

Articles will enable the Bill of Rights to be read and

reprinted for educational purposes as a separate,

self--contained document.

DIViSION I (~i’NERAL

Article 1-Entit ement tori hts and freedoms_without

distinction

20. Article 1 of the ABE expresses the basic principle that

no-one is above or outside the law, that everyone is entitled

to its impartial application and that in particular the

fundamental rights and freedoms laid down in the ABR are to be

equally enjoyed by everyone.

21. The substance of the right of equality before the law is

the important, but limited, principle that there should be no

class of persons which is above or outside the framework 0

the law, or denied access to the law, whatever the law may

be rhis right does not of itself guarantee that access to

the courts might not in fact be qualified on financial or

other grounds.

9

22. Article 1:1 is based upon the terms of Article 2:1 of the

Covenant, and on the reference to “equality before the law” in

Covenant Article 26. To implement Covenant Article 3, and

without in any way limiting Article 1:1, Article 1:2 makes

explicit the equal right of men and women to the enjoyment of

human rights and fundamental freedoms in the ABE

Article 2 _FffectQL Bill of ~jghts on existing rigjjts and

freedoms

23. Article 2 (by ensuring that existing rights and freedoms

continue) implements the requirement in Covenant Article 5:2) that a country is not permitted, on the pretext of

implementing the Covenant, to restrict existing rights and

freedoms.

24. Preserving rights or freedoms under, or recognised by, any

other law includes common law as well as statutory rights.

The Article is also intended to introduce an element of

flexibility which will permit adjustment to future social

developments,

Article 3 — Permissible limitations

25. Article 3 is a limitation or “derogation” clause of

general application. Some ot the most important rights set out

in the Covenant are qualified by detailed limitation

provisions permitting a number of exceptions and

restrictions: see, for example, Covenant Articles 12 (freedom

of movement), 14 (public hearings), 18 (free exercise of

religion), 19 (freedom of speech), 21 (freedom of assembly),

and 22 (freedom of association). The various justifications

for limiting rights or freedoms set out in the Covenant

include such important matters as the protection of national

10.

security, public safety, public order (ordre public) and

public health. Carrying some or all of the Covenant

qualifications into the relevant ABE Articles is clearly

necessary. However, in order to produce an inspirational

charter of rights in a simple declaratory style, the drafting

technique of consolidating the qualifications into one Article

has been used in preterence to attaching detailed

qualifications to individual Articles.

26. Many other rights in the Covenant are stated in apparently

unqualified terms. Indeed. Covenant Article 4 provides that

there should be “no derogation” from certain specified rights

and freedoms even “in time of public emergency which threatens

the lAte of the nation”. Whether or not all the rights which

the Covenant states in unqualified terms are regarded as

morally or philosophically absolute, their leg~4. enforcement

cannot, in the nature of legal processes, be absolute. The

ABE Bill will provide for legislative protection of human

rights through the AT3R itself; for jj~dicial enforcement

through interpretation and application of the ABE; and for

~jtinistrative measures of investigation and conciliation by

the Human Rights and Equal Opportunity Commission. In all

these processes a flexible and practical approach is required.

21. A third group of provisions in the Covenant contains

inbuilt qualifications: for example. Covenant Article 17 says

“no one shall be subjected to arbitrary or unlawful

interference”. Such qualifications are usually reproduced in~

the ABE; but because of their generality some further guide to

the kind of restrictions that are acceptable is deemed

necessary.

28. For all three types of provision in the Covenant,

Article 3 of the ABE adopts a similar solution to that adopted

in the 1982 Canadian Charter of Eights and Freedoms. All the

rights and freedoms of the ABE are declared to be “subject

only to such reasonable limitations prescribed by law as can

be demonstrably justified in a free and democratic society”.

LI.

29. Article 3 thus allows many of the particular rights in the

ABE (which are not themselves absolute in the Covenant) to be

limited in the interests of the community and other

individuals,

30. It should be noted that this wording imposes a number of

restrictions on the permissible limitations of “rights” --

they must be “reasonable”;

they may limit, but cannot wholly defly, the specifically

guaranteed rights (Attorney-General Q3~g~g~v Qpebec

Association of Protestant School Boards (1984) 10 D.L.R.

(4th) 321 (S.C.C.));

they must be “prescribed by law”: a specific law is

required;

the justification must be “demonstrable”: a court must be

satisfied that the limits are justified; and

the justification must be compatible with the basic values

of °a free and democratic society”.

31. Article 3:2 ensures that no limitation may restrict a

right or freedom set out in the Bill of Rights to a greater

extent than is permitted by the relevant Covenant provision.

On the basis of the test provided in Article 3:1, however, it

is clear that any permissible limitation on an ABE right need

not necessarily restrict that right to the full extent

permitted by the Covenant.

12.

DIVISION 2: NON-DISCRiMINATION

A 4 - Equal Protect ion oft he Law

32. Article 4 implements the guarantee of “equal protection of

the law” contained in Article 26 of the Covenant. The travaux

preparatoires to the International Covenant indicate that the

guarantee of “equal protection of the law” deals with the

content of the law, that is, that the substance of the law

should not be discriminatory. This contrasts with the

requirement that the application of the law should not be

discriminatory, which is the right to “equality before the

law” guaranteed by Article 1. By separating the two freedoms

into different Articles, it is intended to avoid the

restrictive approach taken in respect of section 1(b) of the

Canadian Bill of Rights and to adopt instead the broader

approach favoured in respect of the Fourteenth Amendment to

the United States Constitution.

33. The guarantee of equality enshrined in the phrase “equal

protection of the law” has never, however, been regarded as

absolute. The usual interpretation is that everyone should be

treated alike except where discrimination can be justified on

proper grounds. The intention of the ABR is that Article 4.

when read jointly with Article 3:1, will provide some guidance

in the difficult task of determining which discriminations are

legitimate In the United States the courts have adopted

different degrees of scrutiny depending upon the

characteristic which forms the basis of the discrimination

For example discrimination on the basis of race will only be

permissible in the most compelling of circumstances whereas

discrimination on the basis of economic status may only have

to be rationally related to a legitimate governmental purpose

to be permissible The United States jurisprudence it is

expected, would be a guide to the courts in their

consideration of cases involving discrimination.

13.

34. The effective protection against discrimination required

by Covenant Article 26 implicitly permits a measure of

‘affirmative action’ or benign discrimination” that is

measures that are unequal in their current application but

which are designed to redress past inequalities or ensure

future equality. Article 4:2 of the ABE makes this explicit

and also ensures that nothing else in the ABE will affect

“benign discrimination” provisions.

Article S Rights of miqgçjfl~groups

35. Article 5 implements the protection of cultural, religious

and linguistic rights of minorities contained in Covenant) Article 2/ ‘ihe particular rights guaranteed by Article 5 are

guaranteed to a person belonging to a minority group only in

community with other members of the minority group to which

that person belongs.

DIVISION 3: FUNDAMENTALPOLITICAL RIGHTS

Article ~ - j~jgj~ of participation in public 3~iL~

36. Article 6 implements Covenant Article 25. which

establishes certain basic rights of citizenship --- to

participate in public affairs ‘directly or through freely

Ichosen representatives”; to vote and to be elected at “genuine

periodic elections”, by “universal and equal suffrage” and by

secret ballot; and to have access “on general terms of

equality” to “public service”. The words “public service” may

be ambiguous in Australia Article 6 therefore substitutes

“public employment” to ensure that employment at all three

levels of government, and in government authorities, is

covered. Otherwise the operative words of the Covenant

Article are transcribed without change.

14.

37. The Covenant provision is_to operate “without unreasonable

restrictions”. In the ABE these words are omitted, since

reasonable restrictions are permitted by Article 3. Subject

to such restrictions and the Constitution, it is intended that

the words “universal and equal suffrage” would not normally

limit the choice of electoral methods (for example,

proportional representation, preferential voting, or “first

past the post”), but would require compliance with the

formulae “one person, one vote” and “one vote, one value”.

CArticle_/-Freedomof~~pression

38. Article 7 implements Covenant Article 19:2, a broad

guarantee of freedom of expression and information. The

Covenant Article clearly covers freedom of the press and the

media and this has been made explicit in Article 7. Certain

limitations are permitted by the Covenant Article;

limitations are permitted in the ABE by Article 3.

39. A provision not included in the ABE is Covenant

Article 20. It states that propaganda for war and incitement

of national, racial or religious hatred shall be prohibited by

law. As the ABE is designed to prevent government

infringement of individuals’ rights, rather than to stop

certain behaviour of individuals, these prohibitions are more

appropriately implemented by separate and specific legislative

measures. Such legislation would then be measured against

Article 3 if challenged as contrary to the freedom of

expression guaranteed by Article 7.

Article 8 - Freedo~oL~ puht and conscience

40. Article B implements those parts of Covenant Articles 18

and 19 concerned with freedom of thought, conscience and

opinion.

15.

Article 9-Freedom to have or adopt a religion or

41. Article 9 guarantees the right to have or to adopt a

religion or belief without coercion and to manifest that

religion or belief, implementing those parts of Covenant

Articles 18:1 and 18:2 which are concerned with freedom of

religion. Covenant Article 18:3 permits a range of

restrictions on the freedom to manifest one’s religion;

limitations are permitted in the ABE by Article 3. Covenant

Article 18:4 is dealt with in Article 14(d) - see below.

Article 10-- Rightp~_p~geful assemblj~

42. Article 10 implements the guarantee in Covenant

Articles 21 and 22 of freedom of assembly. Certain

limitations are permitted by the Covenant provision;

limitations are permitted in the ABE by Article 3.

Article_11 - Freedom of association

43. Article 11 implements the guarantee in Covenant Article 22

of freedom of association, including the right to form and

join trade unions for the protection of one’s own interests.

Covenant Article 22 permits restrictions of trade union

rights, but limits the permissible restrictions by reference

to ILO Convention No. 87. Article 11 of the ABE makes no

express provision for restrictions. Restrictions are

permitted, however, by Article 3:1 and the effect of Article

3:2 is to restrict the ability to limit Article 11 in the same

way as does the Covenant. Following the Covenant, trade union

rights are guaranteed by the ABE only to a “person” and “for

the protection of that person’s interests”, in other

jurisdictions these words have been broadly construed. On the

one hand, they ensure that workers have a right to join unions

of their choice; on the other hand, they do not invalidate

registration and deregistration provisions.

16.

DIVISION 4: PRiVACY AND FAMiLY RiGHTS

Article 12 -- RiQI~t~Q~ç9~ectionfrom arbitrar~jpterference

44. Article 12 implements the protection from arbitrary

interference in Covenant Article 17. Article 12:1 protects a

person from “arbitrary or unlawful interference” with

“privacy, family, home and correspondence”, and also protects

a person from “unlawful” attacks on “honour and reputation”.

45. Under Article 12:2 (which seeks to clarify what

constitutes an “unlawful interference” with privacy), a search

or seizure is unlawful unless it -

is made pursuant .to a warrant issued by a judge,

magistrate or justice of the peace meeting certain

conditions;

is made pursuant to a law authorising search or seizure

which is a necessary element in the proper administration

or enforcement of revenue, customs or quarantine laws or

the reasonable regulation of an activity carried on

pursuant to a licence, permit or similar authority granted

under a law;

is made pursuant to a law authorising search or seizure

where search or seizure as so authorised is necessary to

protect life or public safety;

• is made pursuant to a law authorising a search or seizure

where there is a compelling need for immediate action; or

• in the case of a search, is done with free and voluntary

consent after the giving of an adequate warning as to the

consequences of consenting to the search,

I.’,

46. It is intended under Article 12:2(b) that regulatory

searches, even of a random nature, which maintain a level of

surveillance essential for ensuring compliance with the law,

should be regarded as “a necessary element in the proper

administration or enforcement” of the specified laws, or “the

reasonable regulation” of a regulated activity.

41. Article 12:2 does not deal specifically with search and

seizure incidental to arrest as the common law in this area is

~ not precise and in any event it may be wider than would seem

permissible under the Covenant. It is. however, intended that

a person lawfully efteôting an arrest may search the person

arrested, the clothing that person is wearing and property

Punder that person’s immediate control if the person making the

arrest believes on reasonable grounds that it is necessary to

prevent the destruction of evidence or to prevent the escape

of the person arrested or to prevent the person arrested from

causing harm to herself or himself or to the person making the

arrest. These are clearly situations within Articles 12:2(c)

and (d).

Article 13 -- Right to marry and found a family

48. Article 13 begins by reciting the broad social policy that

“the family is the natural and fundamental group unit of

society and is entitled to protection by society and the

I State” as in Covenant Article 23:1. Article 13 then goes on

to implement this social policy in the right to marry and

found a family, and the requirement of free consent to

marriage. The right secured by Article 13(a) is the right of

every man and woman to marry a person of the opposite sex and

found a family. The phrase ‘found a family” implies the

progeny of the union, natural or adopted. The rights in this

Article by themselves would not, for example, give a

non--citizen the right to enter or to remain in Australia.

18.

49. Covenant Article 23:4 also requires “appropriate steps” to

protect the rights of spouses and children during marriage and

after divorce. These requirements are satisfied in the

detailed provisions of the Family Law Act 1975.

Article 14 - Rights of the child

50. Covenant Article 24:1 appears to have two concerns —

• the protection of children from the various forms of

prohibited discrimination (race, colour, sex etc.); and

• the recognition that children require special measures of

protection.

51. Accordingly, Article 14 seeks to ensure that children are

not precluded from enjoying the rights and freedoms embodied

in the Bill of Rights simply because they are minors, and at

the same time recognises that they require special measures of

protection because they are minors, Covenant Articles 24:2

and 24:3 create children’s rights to a name, nationality and

registration of birth. Articles 14(b) and (C) implement these

requirements.

52. Article 14(d) (affirming respect for the liberty of

parents and guardians to ensure the religious and moral

education of their children according to their own

convictions) repeats the provisions of Covenant Article 18:4.

This liberty of parents and guardians is to be balanced.

having regard to the child’s age, with the child’s own

fundamental rights.

53. The word “child” is not defined, as it is expected that

courts will regard the prevailing age of majority and the

flexibility given by the introductory recital in Article 14 as

sufficient to determine the precise rights of young persons in

particular circumstances.

19.

DIVISiON 5: FREEDOMOF MOVEMENT

Article 15 - Rights of persons in Australia

Article 16 — Right to enter Australia

Article 17 - -- Eight to leave Australia -

54. Articles 15, 16 and 17 recognize rights of freedom of

movement and choice of residence; a right of any Australian

citizen to enter Australia; and a right of any person to leave

Australia. These provisions implement Covenant Article 12.

55. The citizen’s right to enter Australia is unqualified in

the Covenant. Certain limitations of the other rights are

P permitted by the Covenant provision; in the ABE limitationsare permitted by Article 3.

56. Covenant Article 13 requires that aliens lawfully in

Australia may not be expelled except “in accordance with

law”. Article 15:2 of the ABE implements this requirement.

The Covenant provision also provides procedural requirements

including an opportunity for review, but these requirements do

not apply to national security cases. These procedural

requirements are required by the phrase in ABE Article 15:2

“on such grounds and in accordance with such procedures as are

established by law”, It is not appropriate to the drafting

style of the ABE to spell out in detail the procedural

requirements.

DiViSION 6: LIFE, LiBERTY AND CRIMINAL PROCESS

Article 18 — Eight to Life

57. Article 18 implementsCovenant Article 6:1 on the

deprivation of life.

20.

58. Paragraphs 2, 4 and 5 of Covenant Article 6 set out

detailed regulation of the permissible use of the death

penalty. However, paragraph 6 then provides: “Nothing in

this article shall be invoked to delay or ... prevent the

abolition of capital punishment”. In the present state of the

law in Australia, to regulate capital punishment in the ABE

might appear to condone it: hence, consistently with

paragraphs 6. the ABE does not implement paragraphs 2, 4 and 5.

59. Covenant Article 6:3 preserves obligations arising from

the Convention on the Prevention and Punishment of the Crime

of Genocide. This is not an appropriate matter for inclusion

in Article 18. In any event, a statute permitting genocide

would never meet the Article 3 test of being demonstrably

justified in a free and democratic society.

60. Article 18 follows as closely as practicable, consistent

with the drafting style adopted in the ABE, the wording of

Covenant Article 6:1 and is not intended to modify the

existing laws on abortion in Australia.

Article 19-Liberty and security o~ DerSOfl

61. Article 19 -- the right to liberty and security of person —

derives from Covenant Article 9:1. The Covenant Article also

prohibits arbitrary arrest or detention, and this prohibition

is implemented in Article 19:2.

62. Article 19:4 implements Covenant Article 11, that no one

shall be imprisoned merely on the ground of inability to

fulfil a contractual obligation.

21.

Article 20 -Slaverj~~d servitude

63. Article 20 implements the prohibitions in Covenant

Article 8 of slavery and servitude, and of forced or

compulsory labour, As to the prohibition of torced or

compulsory labour, certain limitations are permitted by the

Covenant provision, in the ABE, limitations are permitted by

Article 3.

Article 21

char~

- Riaht to be informed of reasons for arrest and of

64. Article 21 (the right to be informed of the reasons for

arrest, and to be informed promptly of any charges) implements

Covenant Articles 9:2 and 14:3(a).

~ consult with lawyer and to_remain silent

65. Article 22 (the right of a person detained in custody to

consult a lawyer and to remain silent), protects the rights

“to communicate with counsel” and “not to be compelled ... to

confess guilt”, accorded to accused persons by Covenant

Articles 14:3(b) and (g). in order to ensure the effective

protection of these important rights, it picks them up at an

earlier stage of the criminal process than the Covenant.

Generally, throughout this part of the ABE, an effort is made

to state the rights in the chronological order in which theySwould become relevant to an arrested person.

Art i ci e 23 - Hearjg ace and trial

66. Article 23 implements Covenant Article 9:3. but attempts

to separate the three distinct rights that appear to be

involved: a prompt initial hearing after arrest; a right to

bail on reasonable terms (except for good reasons); and a

right to be tried within a reasonable time.

22.

Article 24 - Right to test lawfulness of detention

67. Article 24 implements the right under Covenant Article 9:4

to test the lawfulness of any detention (for example, by

habeas corpus) and, where appropriate, to be released.

68. Covenant Article 9:5 envisages “an enforceable right to

compensation” in cases of wrongful arrest, and Covenant

Article 4:6 envisages a similar right in cases of wrongful

conviction, in Australia such matters are mostly dealt with

by the payment by government of exgratia compensation. There

are, in addition, limited common law rights to damages. To

create special enforceable rights to damages would go beyond

the conception of the ABE as “a shield, not a sword” (see

clause 17 of the Bill).

Art icle2S - Presumption of innocence

69. Article 25 implements Covenant Article 14:2: a person

charged with a criminal offence is to be presumed innocent

until proved guilty according to law. The phrase “according to

law” does not permit the Parliament to take away the ultimate

burden of the prosecutor to prove guilt beyond a reasonable

doubt (ii v ~pjy (1971) 3 C.C.C.(2d) 354 (S.C.C.)~ ~, V

Russell (1971) 15 C.R.N.S. 289 (N.S.C.A.)).

Article 26 - Right to fair hearing

70. Article 26 creates, for both civil and criminal cases, a

right “to a fair and public hearing by a competent,

independent and impartial tribunal”. This implements a

guarantee in Covenant Article 14:1. The Covenant provision

also declares that all persons “shall be equal before the

courts and tribunals”. This requirement is sufficiently

23.

implemented by the general provisions tor equality before the

law in Article I of the ABE. Certain limitations are

permitted by the Covenant provision, in the ABE limitations

are permitted by Article 3.

Article_27-Rights of accused relatil3-g to trial

71. Article 27 should be read with Articles 21 to 23 above.

Together these Articles implement a series of “due process”rights relating to the conduct of inv’stigations into and

trial of criminal offences required by Covenant Article 14:3.

A special effort is made in this Article not only to create

specific enforceable rights but also, so far as possible, to

group within the Article the rights in the chronological order

in which they would become relevant. For example,

Article 27(b) states the right to communicate with a lawyer;

but Article 21(a) first ensures that a person charged will be

informed of the right to legal assistance.

72. Article 27(c) provides for free legal aid “if the

interests of justice so require and the person lacks

Ssufficient means to pay for the assistance”. This implements

the similarly qualified right in Covenant Article 14:3(d).

The reference to “the interests of justice” is understood as

permitting reasonable discretions in the granting of legal

aid, based on the merits of the case and on the seriousness of

the offence.

73. Other rights set out in Article 27 (all based on Covenant

Article 14:3) are the rights to adequate time and facilities

to prepare a defence; to be present at any trial and to

conduct a defence; to examine prosecution witnesses and have

defence witnesses called and examined; to receive the free

assistance of an interpreter when needed; and to be protected

against self-incrimination. In Article 27(i), the words

24.

“against himselt” used in Covenant Article 14:3(g) have been

omitted because, as the right only applies to a person in

relation to the offence with which that person is charged,

they are unnecessary. Further, in relation to

self-incrimination, see also Article 22.

74. Covenant Article 14:4 requires a procedure for juveniles

which takes account of their age. This requirement is

implemented in Article 27(j).

15. Covenant Article 14:6 requiring a person “to be

compensated according to law” for a miscarriage of justice has

not been included in the ABE as Australia has made a

reservation to Covenant Article 14:6 in the following terms -

“the provision of compensation for miscarriage of justice

in the circumstances contemplated in paragraph 6 of

Article 14 may be by administrative procedures rather than

pursuant to specific legal provision”.

Article 28— No retrospectiveciminal ences orpenalties

16. Article 28 prohibits the creation of retrospective

criminal offences, or a retrospective increase in penalties

(Covenant Article 15:1). It should be noted that in both the

Covenant and the ABE the ban on retrospectivity applies only

to criminal oftences and penalties.

Article 29 - Right of review of conviction and ~

7/. Article 29 recognizes a right to review of conviction and

sentence (Covenant Article 1.4:5).

25.

Article 30 -- No trial or punishment for same qLf.piig~

78. Article 30 prevents “double jeopardy” (Covenant

Article 14:7). As to Covenant Article 14:6 (compensation on

reversal of conviction or pardon), see Article 24 above.

Article 31 - Rights when deprived of liberty

~ 79. Article 31 implements rights in relation to deprivation of

liberty contained in Covenant Article 10. Article 31:1 (all

persons deprived of liberty to be treated with humanity and

respect for human dignity) implements Covenant Article 10:1.

80. Other paragraphs of Covenant Article 10 require

segregation of prisoners: accused persons from those already

convicted, and juvenile offenders from adults (with

appropriate treatment for juveniles), in the Covenant the

first of these requirements is to operate “save in exceptional

circumstances”; the second is absolute. Both requirements are

implemented by Article 31:2. but in both cases only “so far as

is practicable”. This limitation is consistent with

Australia’s reservation to Covenant Article 10 which reads -

“In relation to paragraph 2(a) the principle of

segregation is accepted as an objective to be achieved

progressively, in relation to paragraphs 2(b) and 3

S (second sentence) the obligation to segregate is accepted

only to the extent that such segregation is considered by

the responsible authorities to be beneficial to the

juveniles or adults concerned.”

The reservation and the formulation of Article 3 recognise and

encourage the moves already underway in Australian prison

administrations towards strict compliance with the Covenant,

but do so with due allowance for the practical exigencies

which State administrations may encounter in the short term.

26.

Article 32 — No torture or inhuman tr~atm~nt~ndnO

experimentation without consent

81. Article 32 prohibits torture and inhuman treatment, and

medical experimentation without consent, and implements

Covenant Article 7. The implementation of this prohibition is

essential because it is fundamental to a general statement of

human dignity.

PART III -OPERATION OF BILL OF RIGHTS

Clause 9 -Operation of~~Bi~l of Rights

82. It is intended that the Bill of Rights will not override

the law (including both the statute law and the common law as

it applies in a State) of any State (including for this

purpose the Northern Territory). To this end, the effect of

the Bill of Rights is set out in sub-clause 9(1) so that-

it has the effect given to it by sections 10 to 17 of the

Bill,

it applies, subject to the effect given to it by sections

10 to 17 of the Bill, as a law of the Commonwealth in

relation to matters arising under laws of the Commonwealth

in force before or after the commencement of this section,

and

it applies, subject to the effect given to it by sections

10 to 17 of the Bill, as a law of a Territory in relation

to matters arising under the laws of the Territory

concerned in force before or after the commencement of

this section. -

27.

83. By reason of the definitions of “law”, “law of a

Territory”, “law of the Commonwealth” and “Commonwealth

enactment” in sub-clause 4(1), sub-clause 9(1) will have the

effect of applying the Bill of Rights to the common law as it

operates in a Territory, as it applies in relation to a matter

arising under a Commonwealth enactment or as it is applied by

a Commonwealth enactment. Thus the Bill of Rights will be able

to be relied upon to modify or over-ride any inconsistent

common law as it applies to federal matters, for example the

I common law applicable to the application of the cijjnes Act

j~jj or the common law picked up by section 68 of the

Judiciary Act - 1903.

‘ 84. By reason of the definitions of “act” and “practice” in

sub-clause 4(1), sub--clause 9(2) ensures that the effect of

the Bill of Rights, for the purposes of Part V of the Bill, is

limited to protecting individuals against violations of their

rights arising from the impact of laws or the actions of

governmental institutions. It does not affect the rights of

individuals in relation to each other except when such rights

flow from an impugned law.

85. Sub-clause 9(3) makes clear that the Bill of Eights

applies onlyfor the benefit of natural persons.

Clause 10 — Interpretation of legislation

86. Sub-clause 10(1) provides, in effect, that the Bill of

Rights is to operate in the first instance as a “rule of

construction”. This means that, in construing any

Commonwealth or Territory law, the courts are to seek an

interpretation that does not conflict with a right or freedom

in the Bill of Rights. ~

28.

87. Sub-clause 10(2) makes clear that a similar approach is to

be applied when interpreting the terms in which power is given

for the making of Commonwealth or Territory statutory

instruments.

88. Sub-clause 10(3) prevents an instrument, which would not

be deemed to be repealed by clause ii until 5 years after the

commencement of clause 11. being deemed to be invalid by

reason that the legislation under which it was made had been

construed under clause 10 to be in conflict with the Bill of

Rights.

Clause 11 — Inconsistent prior Commonwealth Acts deemed to be

repeale~&c

89. Clause 11, subject to the “sunrise” provision contained in

sub-clause 2(3), provides that where an Act enacted before the

Bill of Rights is in conflict with the Bill of Rights, it is,

to the extent of the conflict, repealed. ‘I’he key to the

operation of clause 11 is “conflict” with the Bill of Rights.

“Conflict” is defined in sub-clauses 4(4) and (5). it should

also be noted that an Act is to be regarded as conflicting

with the Bill of Rights only after it has been construed under

sub-clause 10(1), that is, only after an attempt has been made

to construe the Act in a way that would result in the Act not

being in conflict with the Bill of Rights.

IClause 12 - Operation~Of~~~later Commonwealth Acts

90. To the extent of the Parliament’s power to do so,

clause 12 is intended to prevent any violation of human rights

by later Commonwealth laws. In order to override the Bill of

Rights, a law will have to state expressly that it is intended

to do so. Thus, while a future Parliament may derogate from

the ABE, it cannot do so by accident and it cannot do so in

secret. Any derogation would have to be exposed to full

parliamentary and public scrutiny.

29.

91. The basic scheme of clause 12 is modelled on that of

section 2 of the 1961 Canadian Bill of Rights (which unlike

the later 1982 Canadian Charter of Rights and Freedoms, was

not a constitutional instrument), as interpreted by the

SupremeCourt of Canada in R. v ~ (1970) 9 D.L.R. (3d)

4/3. The fundamental idea underlying the decision in ~. v

Drybones is that two inconsistent enactments of the same

Parliament can both be valid but, to the extent of the

inconsistency, only one can be ~pg~ative: and that Parliament

S may therefore give a direction as to which of the two

conflicting provisions shall be operative in a particular

case. This is what sub-clauses 12(2) and (4) are intended to

do.

92. Sub-clause 12(1) identifies the Commonwealth Acts to which

clause 12 applies, that is, later Commonwealth Acts which

conflict with the Bill of Rights.

93. Sub-clause 12(2) provides for the case where a later law

does provide “by express words of plain intendment” that its

provisions, insofar as they conflict with the Bill of Rights.

shall prevail. In such a case, the intention is that both the

Bill of Eights and the later law will be valid laws of the

Commonwealth, but that the later law shall be operative and

the Bill of Eights inoperative only to the extent of the

conflict and only for so long as the conflict persists.

S 94. Sub-clause 12(3) provides that sub-clause 12(2) shall

apply to a provision that authorises the making of

instruments, but not to an instrument made under that

provision, inconsistent instruments are dealt with in

clause 13.

95. Sub-clause 12(4) provides for the case where a later law

does not provide “by express words of plain intendment” that

its provisions, insofar as they conflict with the Bill of

Rights, shall prevail, In such a case, both laws are again

30.

intended to be valid, but it is the Bill of Rights that is

operative and the inconsistent later law that is inoperative -

again, only to the extent of the conflict and only for so long

as the conflict persists.

Clause 13 - Operation of certain subordinate instruments

96. The effect of clause 13 is similar to that of clause 12.

Subordinate legislation (including Territory enactments) made

under a later CommonwealthAct could be made to prevail over

the Bill of Rights by an express statement of intention; but

only if an intention to that effect were formed and expressed

by the Parliament itself in the authorising Act.

Clause 14 - Enactments deemed to be in force in certain cases

97. Where a court finds that a later (or after 5 years’

operation, an earlier) Commonwealth law is in conflict with

the Bill of Rights (and has therefore been rendered

inoperative or repealed by the Bill of Rights), the

consequences might be far reaching. A court confronted with

such a prospect might feel driven to adopt a narrow

construction of the ABE. In such instances, therefore.

clause 14 is intended to offer the courts an alternative which

would enable them to avoid such results while still giving the

Bill of Rights provisions a broad interpretation. To this

end, clause 14 will give the courts the power to make a

declaration (based on “grave public inconvenience or

hardship”) which will have the following effects —

the normal operation of the law in conflict with the Bill

of Rights (and its legal consequences)will be preserved

or reinstated up to the date of the court’s decision; and

31.

the normal operation of the law in conflict with the Bill

of Rights (and its legal consequences) ~ay be preserved or

reinstated (again on grounds of “grave public

inconvenience or hardship”) for a further period of three

months after the court’s decision: this would allow

sufficient time for the Parliament to pass an appropriate

law to deal with the situation, for example, by amendments

or transitional provisions.

98. As in such cases, the result would be that the person who

had successfully argued that a law was inconsistent with the

Bill of Eights would be unfairly denied “the fruits of

victory”, an ~~ion is made to the effects of any

P declaration made under this clause to allow the Bill of Rights

to have an immediate operation limited to the individual case.

99. Sub—clause 14(1) provides a brief preliminary explanation

of these intentions.

100.Sub-clause 14(2), which applies to both earlier and later

Commonwealth laws which conflict with the Bill of Rights.

enables a court to make a declaration that it is “satisfied”

Ithat “grave public inconvenience or hardship” would be caused

unless sub-clause (4) were to apply; and provides that where

such a declaration is made, sub-clause (4) shall apply.

10l.Sub-clause 14(3) allows the same procedures to be used (to

I similar effect) in a case where a Territory enactment is found

to be inconsistent with the Bill of Rights.

102. Sub-clause 14(4) provides that where a declaration

under sub-clause (2) or (3) has been made, the relevant law

shall be deemed to have been in force up to the date of the

court’s declaration, This is to be so “for all purposes

except the purposes of the proceedings in which the

declaration ... was made”. This exception allows the

successful litigant to have “the fruits of victory” in the

individual case.

32.

103. Sub-clause 14(5) fixes the date from which the saving

or reinstatement of a law under sub-clause (4) shall

commence. For earlier laws it is to commence from the

commencementof section 14: up to that date any such law would

remain in force in any event, since the Bill of Rights is not

retrospective. For a later law, the saving or reinstatement

is to commence from the date on which the law came into force.

104. Sub--clause 14(6) ensures that the saving or

reinstatement extends also to any instrument made under any

law to which sub-clause (4) applies. Again, an exception is

made to preserve “the fruits of victory”.

105. Of these first six sub-clauses, the crucial operative

provision is sub-clause 14(4), under which the impugned law is

deemed to be in force up to the date of the court’s

declaration In many cases this will be sufficient to avoid

any disruptive consequencesthat might otherwise flow from the

operation of clauses 11 to 13. In some cases, however, it

might be necessary to allow a further period in which the

relevant legislature can take appropriate action.

Sub-clauses 14(7) to (9) provide for this further period of

grace. Of course, these provisions are applicable only to a

case in which a declaration under sub-clause 14(2) or (3) has

already been made.

106. In such a case, sub-clause 14(7) enables the court to

make a further declaration that it is “satisfied” that “grave

public inconvenience or hardship” would be caused unless

sub-clause (8) were to apply.

107. Sub—clause 14(8) provides that where a declaration

under sub-clause (7) has been made, the relevant law shall be

deemed to remain in force for a further period of three months

from the date of the court’s declaration. As before, an

exception is made to preserve “the fruits of victory”.

33,

1.08. Sub--clause 14(9) ensures that the further three months’

saving or reinstatement extends also to any instrument made

under any law to which sub-clause (8) applies.

109. It is not intended that this machinery should be used to

extend the life of a law indefinitely, by granting the same

law a series of successive reprieves in successive legal

proceedings, Rather, the intention is that any provision

conflicting with the Bill of Rights should be given a maximum

of one period of three months’ reprieve only. To ensure that

this is the case, sub-clauses 14(2) and (3) do not permit the

making of a declaration where a similar declaration has

already been made in relation to the same conflict with the

Bill of Rights.

Clause 15 — Operation of Territo~Ljaws that further objects

of Covenant

1.10. Clause lb provides that the Act is not intended to

exclude or limit the operation of a law of a Territory that

furthers the objects of the International Covenant on Civil

and Political Rights and is capable of operating concurrently

with the Commonwealth scheme.

Clause 16 — Powers of courts in criminal proceedings

111. Judicial interpretations of laws in the light of the Bill

of Rights, and judicial determinations of the consequences of

a conflict with the Bill of Rights, will arise where the law

in question is impugned in court proceedings. For example, a

person charged with infringement of a particular law may wish

to argue by way of defence that the law is inoperative by

virtue of clause 12 (or that the law has been repealed by

clause 11). It is not thought necessary to make any specific

A

34.

provision enabling such a person to argue such a defence; its

availability will arise simply from the application of the

Bill of Rights as provided in clause 9. Nor will specific

provision be made for other cases in which Bill of Rights

issues may arise in the course of pending proceedings. Clause

16 does, however, make provision for particular enforcement in

respect of Article 12 (which deals with the right to privacy,

including unlawful search and seizure) and Division 6 of the

Bill of Rights (which deals primarily with the due process

rights of a person accused of a criminal offence).

112. Sub-clause 16(1) provides that where the court is

satisfied that evidence was obtained in a manner which

infringed those rights, the party tendering that evidence must

satisfy the court that the admission of the evidence would

substantially benefit the public interest in the

administration of criminal justice, and that that benefit

would outweigh any prejudice to the rights and freedoms of any

person, including the defendant, that would flow from the

infringement or the admission of the evidence.

113. Sub—clause 16(2), in circumstances where those rights

have been infringed, confers a broad judicial discretion to

make such order as the court considers “appropriate and just

in all the circumstances” for the purpose of ensuring “that

the administration of justice is not brought into disrepute”.

This broad discretion will not limit the courts to existing

remedies.

Clause 17 - No rights of action or criminal liability under

Bill of Rights

114. The Bill of Rights is intended as a shield, not a sword.

Clause 17 makes it clear that no one can sue or be sued, or be

prosecuted, on the basis of an infringement of the Bill of

35.

Rights. While, however, an infringement of the Bill of Rights

cannot itself give rise to an action, existing remedies (for

example, actions for false imprisonment) will continue to be

available.

PART 1V ~-_REMOVALOF CAUSES AND INTERVENTiON

Clause 18 — Removal to the Federal Court

115. Sub-clause 18(1) provides a procedure for the removal of

Bill of Rights issues from a federal, State or Territory court

into the Full Court of the Federal Court. Removal m~ybe made) (“for sufficient cause”) on the application of a party and

shall be made on the application of the Attorney--General of

the Commonwealth. Removal will only be permitted from courts

exercising review jurisdiction.

116. Sub-clause 18(2) defines “review jurisdiction” as

appellate jurisdiction and the jurisdiction to review by way

of injunction, prerogative writ or similar order, or

declaratory order.

117. Sub-clause 18(3) ensures that the Federal Court has

jurisdiction to hear any cause so removed.

118. Sub--clause 18(4) provides for the transmission of

documents to the Registry of the Federal Court when a cause is

removed to that Court,

119. Sub—clause 18(5) provides that nothing in clause 18

affects the operation of Part VII of the Judiciary Act1903,

which deals with the removal to the High Court of causes under

or involving the Constitution.

36.

Clause 19 - Proceedings after removal

120. Clause 19 provides that when a cause is removed into the

Federal Court, further proceedings shall be as directed by

that Court.

Clause 20 - Remittal of causes

121. Sub-clause 20(1) provides that a cause removed into the

Federal Court may at any time be remitted to the Court from

which it came.

122. Sub-clause 20(2) provides that the cause shall be

remitted if the Federal Court finds that it does not have

jurisdiction,

Clause 21 - Effect of interlocutory orders. &c. before removal

of cause

123. Clause 21 provides that when a cause is removed, any

interlocutory orders, attachments, undertakings or injunctions

already given in that cause remain in force.

Clause 22 - Defence in causes removed to Federal Court

124. Clause 22 provides than when a cause is removed, the

defendant may rely upon any defence which would have been

available to him if the matter had begun in the Federal Court.

Clause 23 - Intervention bY Attorney-General

125. Sub—clause 23(1) authorises the Attorney—General of the

Commonwealth to intervene in any court in proceedings that

relate to the Bill of Rights.

126. Sub-clause 23(2) provides for such order as to costs as

the court thinks fit to be made against the Commonwealth where

the Attorney-General intervenes.

37.

127. Sub-clause 23(3) makes clear that the Attorney--General’s

power to intervene under sub--clause 23(1) is additional to any

other intervention powers the Attorney-General may have.

Clause 24- Notice toAttorn~y~General

128. Sub-clause 24(1) provides that when a cause involving a

Bill of Rights issue is pending in the High Court, or a5 federal, State or Territory court exercising review

jurisdiction, the court shall not proceed with the matter

until it is satisfied that notice has been given to the

Attorney-General of the Commonwealth, and that a reasonable

time has elapsed to enable the Attorney-General to consider

the question of intervention.

129. Sub-clause 24(2) provides that when a cause involving any

Bill of Rights issue is pending in a court (other than the

High Court) not exercising review jurisdiction, the court inay~

decide not to proceed with the matter until it is satisfied

that notice has been given to the Attorney-General of the

Commonwealth and that a reasonable tine has elapsed to enable

Sthe Attorney-General to consider the question of intervention.

130. Sub-clause 24(3) defines “review jurisdiction” as

appellate jurisdiction and the jurisdiction to review by way

of injunction, prerogative writ or similar order, or

declaratory order.

131. Sub-clause 24(4) permits a court, fo~r the purposes of

sub-clause 24(1) and (2), to adjourn and to direct the giving

of a notice.

132. Sub—clause 24(5) provides that the “notice” requirement

is satisfied if steps have been taken that, in the opinion of

the court, could reasonably be expected to bring the matter to

the attention of the Attorney-General, if the -

Attorney--General is already a party to the cause, no notice is

required.

38.

133. Sub-clause 24(6) provides that the cost of an adjournment

under clause 25 may be paid by the Commonwealth if the

Attorney—General authorises such a payment.

134. Sub-clause 24(7) enables a court, notwithstanding the

provisions of sub--clause (1), to grant such urgent

interlocutory relief in any case as the interests of justice

may require.

PART V - FUNCTiONS OF HUMAN RiGHTS AND ~Q~k OPPORTUNITY

COMMiSSiON

Clause 25 -- Functions of Human Rights and Equal Opportunity

Commission

135. This clause is to be read together with the Human Rights

and Equal Opportunity Commission Act 1985. The purpose is to

add to the functions of the Commission by conferring on it

functions relating to the Bill of Rights.

136. Paragraph 25(a) empowers the Commission to inquire into

any act or practice of any governmental agency or authority

(Commonwealth, State or Territory) which may infringe the Bill

of Rights. (See the definitions of “act”. “practice” and

“authority” in sub-clause 4(1)). in the course of such an

inquiry the Commission may “endeavour, by conciliation, to

effect a settlement” if it considers such a procedure

appropriate, if not, or if an unsuccessful attempt at

settlement has been made, then in any case where the

Commission concludes that the Bill of Rights has been

infringed, it must report to the Minister for -the time being

administering the Australian Bill of Rights legislation. The

reporting machinery is more fully described in clauses 41

and 42.

39.

137. Paragraphs 25(b) and (c) are concerned with promotional,

research and educational functions.

138. Paragraph 25(d) empowers the Commission to examine

enactments and, when requested, proposed enactments with a

view to identifying possible conflicts with the Bill of

Eights, and to report to the Minister the results of any such

examination. (See the definitions of “proposed enactment” and

“enactment” in sub-clause 4(1)). ‘rhe power extends to

Senactments or proposed enactments of the Conmonwealth and of

each State or ‘I’erritory.

139. Paragraph 25(e) empowers the Commission to report to the

SMinister on Commonwealth laws that should be passed, or

Commonwealth action that should be taken, on matters

pertaining to the Bill of Eights. Such reports may be made at

the request of the Minister or on the Commission’s initiative.

140. Paragraph 25(f) confers the usual incidental powers.

clause 26 -- Complaints

S 141. Under this clause, an inquiry by the Commission under

paragraph 25(a) into an act or practice may be initiated by

written complaint, Sub--clause (1) requires that on receipt of

such a complaint the Commission shall (subject to clause 27)

S conduct an inquiry, and shall attempt to effect a settlementunless the Commission considers this inappropriate.Sub-clause 26(2) imposes on any prescribed person authorised

to carry out the inquiry functions of the Commission a duty to

assist, where necessary, a person who wishes to make a

complaint in the formulation of the complaint or the reduction

of the complaint to writing.

40.

142. ‘l’he complaints referred to in clause 26 may be made by

any person --. not necessarily the person whose rights and

freedoms are allegedly infringed. There is no “standing”

requirement.

143. Sub-clauses 26(3) to 26(5) make provision for a person

detained in custody to have his or her complaint and other

correspondence with the Commission transmitted in confidence

to and from the Commission, There are similar provisions in

the Ombudsman Act 1976.

Clause 27— Performance of functions of Commission in relation

to Bill of ~ghts

144. This clause defines the circumstances in which the

Commission is required to exercise its powers of inquiry under

paragraph 25(a) into acts or practices.

145. Under sub-clause 27(1) the Commission shall conduct such

an inquiry at the Minister’s request, or in response to a

complaint under clause 26, or when the Commission considers it

is desirable to do so.

146. Sub-clause 27(2) requires the Commission to obtain the

consent of the Minister administering the Australian Bill of

Rights legislation before commencing to inquire into a State

act or practice or to examine a State enactment.

147. Sub-clause 27(3) requires that before commencing any such

inquiry, the Commission shall notify “the responsible

Minister” that is the Minister of the Commonwealth State or

Territory apparently responsible for the administration of the

matter in connection with which the act or practice occurs.

See the definition of “responsible Minister” in

sub—clause 4(1). -

41.

148. Sub-clause 27(4) gives the Commission a discretion not to

inquire into an act or practice, or to discontinue such an

inquiry. Under paragraphs 27(3)(a) and (b), this discretion

may be exercised if the Commission is satisfied that the Bill

of Rights has not been infringed, or if it is of the opinion

that an inquiry is not desired by the person or persons whose

rights or feedoms are alleged to have been infringed. In

addition, where there is a complaint under clause 26,

paragraph 27(3)(c) permits the Commission to decide not to

S inquire or to discontinue an inquiry in response to thecomplaint where -

if more than 12 months has elapsed since the alleged

infringement last occurred;

the Commission is of the opinion that the complaint is

frivolous, vexatious, misconceived or lacking in

substance;

the Commission is of the opinion that the subject matter

of the complaint has been adequately dealt with;

the Commission is of the opinion that some other more

appropriate remedy is available to the complainant; or

the Commission is of the opinion that the complaint could

be more effectively or conveniently dealt with by some

other statutory authority.

149. To reduce the risk of dual investigations under the Bill

and the Complaints (Australian Federal Police) Act 1981 into

the conduct of police officers, sub-clause 27(4) prevents the

Commission investigating a complaint about an act or practice

where the subject matter of the complaint is or has been the

subject matter of investigation by the Ombudsmanunder the

Complaints (Australian Federal Police) Act, unless the

Commission and the Ombudsman agree that the Commission should

inquire into the matter.

42.

150. Sub-clause 27(5) requires the Commission to make a

decision whether or not to inquire into an act or practice

within 2 months of receiving a complaint. This provision is

designed to ensure that the Commission acts relatively quickly

in deciding whether or not to exercise its discretionary

powers under clause 27.

151. if, for any reason, the Commission decides to not to

inquire or to discontinue an inquiry, sub-clause 27(6)

requires the Commission to advise the complainant in writing

of its decision and its reasons.

Clause 28 - Powers and duties of Commission

152. Sub-clause 28(1) empowers the Commission to do all things

that are necessary or convenient to the carrying out of its

functions under the Bill. Sub--clause 28(2) enables the

Commission to report to the Minister at any time and requires

it to report when the Minister so requests.

Clause 29 - Form of_examinations or inquiries to beat

discretion of Gommission, &c.

153. Sub-clause 29(1) provides that the Commission may conduct

its inquiries and examinations in such manner as it thinks fit

and may inform itself without being bound by the rules of

evidence.

154. Sub-clause 29(2) enables the Commission to give

directions for the purpose of preserving the anonymity of the

complainant or of a person who has furnished or proposes to

furnish information or who has produced or proposes to produce

a document or who has given or proposes to give evidence or

who has made or proposes to make a submission where it

considers it is necessary to protect the security of

employment, privacy or any right or freedom of the person

guaranteed by the Bill of Rights.

43.

155. Sub-clause 29(3) enables the Commission to direct that

evidence or information given or the contents of a document

produced to the Commission not be published or be published

only in such manner and to such persons as the Commission

specifies.

Ib6. Sub--clause 29(4) provides that a direction given under

sub-clause 29(3) does not prevent a person from communicating

S a matter contained in the evidence, information or document

which is the subject of the direction where that person has

knowledge of the matter otherwise than by reason of the

evidence or information having been given or the document

having been produced to the Commission.

157. Sub—clause 29(5) requires the Commission in deciding

whether or not to give a direction under sub-clause 29(3) to

have regard, as relevant to the circumstances, to the need to

prevent --

prejudice to Australia’s security, defence or

international relations;

prejudice to relations between the Commonwealth and a

State or between States;

the breach of the confidentiality of the Cabinet or

Executive Council of the Commonwealth or a State;

prejudice to a current investigation or inquiry into

crime or criminal activity;

the disclosure, or the ascertaining by a person, of the

existence or identity of a confidential source of

information in relation to the enforcement of the

criminal law;

44,

the endangering of the life or physical safety of any

person;

prejudice to the proper enforcement of the law or the

protection of public safety;

the disclosure of information which is the subject of a

prohibition from disclosure in other legislation; and

the unreasonable disclosure of the personal affairs of a

person or of confidential commercial information.

158. Sub-clause 29(6) requires the Commission, in having

regard to the matters in sub-clause 29(5), to try to achieve

an appropriate balance between the need to prevent those Sconsequences and the desirability of ensuring that interested

persons are sufficiently informed of the results of the

Commission’s examination or inquiry.

159. Sub-clause 29(7) prescribes the penalties for

contravening a direction given under either sub-clause 29(2)

or (3).

Clause 30 — Nature of settlements

160. Although the Commission is authorised to attempt a

settlement of any matter into which it inquires, the possible

terms of a negotiated settlement should be limited so that

settlements of convenience which do not adequately recognise

the rights involved are not made. An appropriate settlement

would need to reflect a recognition of the right or freedom

alleged to have been infringed, and a recognition of the need

to protect that right or freedom, and clause 30 requires the

Commission, in endeavouring to effect any settlement. to have

regard to these matters.

45

Clause 31 -- Power to obtain information and documents

161. Sub-clause 31(1) empowers a member of the Commission to

require a person, by notice in writing, to furnish any

information or to produce any documents relevant to an inquiry

under paragraph 25(a) or to an examination under paragraph~

25(d). in any case where the Commission has reason to believe

that that person is able to do so.

162. Sub-clause 31(2) makes provision for an intelligence

agency to be notified where the Commission requires another

agency having material which came from the intelligence agency‘ to produce that material. This will allow the intelligence

agency to be aware of a possible need to approach the

Attorney--General for a certificate under clause 36. For the

purposes of sub-clause 31(2), sub—clause 31(3) provides that

an intelligence agency is one of the Australian Secret

intelligence Service, the Australian Security intelligence

Organization, the Office of National Assessments, or the

Defence Signals Directorate or the Joint Intelligence

Organisation of the Department of Defence.

163. Under sub-clause 31(4) any documents produced to the

Commission may be copied by it and retained by it for as long

as necessary, but with reasonable access to the documents

afforded to any person who would normally have such access.

164. Sub-clause 31(5) empowers members of the Commission, by

notice in writing, to require a person to attend to answer

questions where the Commission has reason to believe that the

person can give information relevant to an inquiry under

paragraph 25(a).

165. Sub-clause 31(6) provides for a person who is required to

attend under sub-clauses (1) or (5) to be paid reasonable

attendance money.

46.

166. Sub-clause 31(7) makes provision for the protection of

information or documents concerning the affairs of a taxpayer

not to be disclosed to the Commission in response to a

requirement under sub-clause 31(1) unless the information or

document would only identify the complainant in response to

whose complaint the Commission is conducting an inquiry or

unless the information or document would not identify the

taxpayer to whose affairs the information or document relates.

Clause 32 -- Power to examine witnesses

167. Under this clause persons attending pursuant to clause 31

may be examined on oath or affirmation by a member of the

Commission.

Clause 33 - Dire~ctions to persons to attend compulsory

conference

168. This clause provides that, for the purpose of an inquiry

and attempted settlement under paragraph 25(a), the Commission

may, by notice in writing, direct the relevant persons to

attend a compulsory conference. Sub-clause 33(1) authorises

such directions. Sub-clause 33(2) provides for penalties for

non-compliance.

169. Sub-clause 33(3) requires that, when a compulsory

conference is to be held, directions to attend shall be given

to the complainant; to the person allegedly responsible for

the act or practice complained of; and to any other person

who, in the opinion of the Commission, is able to give

relevant information or whose presence may assist in settling

the matter. By sub-clause 33(4), each person required to

attend is entitled to reasonable attendance money.

47.

170. Sub-clause 33(5) provides that a notice given under

sub.-clause (1) may include a requirement for the production of

documents~.

Clause 34 - Cornpulsoçy conference

171. This clause regulates the procedure at compulsory

conferences. Production of documents may be required

(sub-clause 34(1)); the conference shall be held in private

and conducted in such a manner as the person presiding thinks

fit (sub-clause 34(2)); a corporate or unincorporated body may

attend through a member, an officer or employee

, (sub—clause 34(3)); and representation (for example, legal

representation) is not permitted except with the consent of

the person presiding (sub-clause 34(4)).

clause 35 - Failure to comply with requirement

172. This clause provides for penalties for failure to attend

before a member of the Commission, for refusal to make an oath

or affirmation, and for failure to furnish information, answer

question or produce a document.

Clause 36 — Disclosure of information or contents of documents

73. Sub-clause 36(1) prevents the Commission, and the persons

exercising its functions, from requiring disclosure of

information or documents where the Commonwealth

Attorney-General certifies that such disclosure would be

contrary to the public interest because it would --

prejudice Australia’s security, defence or

international relations;

48

disclose communications between State and Commonwealth

Ministers in a way that would prejudice relations

between the Commonwealth and a state

breach the confidentiality of Cabinet or the Executive

Council;

prejudice a current investigation or inquiry into crime

or criminal activity or the fair trial of any person;

disclose or enable the ascertaining of the existence

or identity of a confidential source of information in

relation to the enforcement of the criminal law

prejudice the effectiveness of the operational methods

or investigative practices or techniques of criminal

law enforcement agencies; or

endanger the life or physical safety of any person

174 Sub clause 36(2) prevents the Commission and the persons

exercising its functions from requiring the giving of any

information as to the existence or non-existence of

information concerning a specified matter or as to the

existence or non—existence of a document required to be

produced by the Commission where the Commonwealth

Attorney-(aeneral certifies that disclosing the existence or

non-existence of information or documents would be contrary to

the public interest by reason that it would prejudice -

the security defence or international relations of

Australia or

the proper performance of the functions of the National

Crime Authority.

49,

[‘his provision allows relevant agencies to give a ‘neither

confirm nor deny’ response in relation to information or

documents where such a response is necessary to protect very

sensitive matters.

175. Sub-clause 36(3) makes a similar provision to sub-clause

(1) where a State Attorney Ceneral certifies that the

disclosure would be contrary to the public interest because it

would --

disclose communications between a Minister of that

State and a Minister of the Commonwealth or of another

State, in a way that would prejudice the State’s

relations with the Commonwealth or the other State;

breach the confidentiality of the State’s Cabinet or

Executive Council;

prejudice a current investigation or inquiry into crime

or criminal activity or the fair trial of any person;

disclose or enable the ascertaining of the existence

or

identity of a confidential source of information in

relation to the enforcement of the criminal law

prejudice the effectiveness of the operational methods

or investigative practices or techniques of criminal5 law enforcement agencies or

endanger the life or physical safety of any person.

176. Under sub-clause 36(4), a person cannot refuse to furnish

information produce a document or answer a question on the

grounds that to do so would

disclose legal advice given to a Commonwealth, state or

Territory Minister, officer or authority;

so.

contravene any other Act, be contrary to the public

interest, or might tend to incriminate that personor

render the person liable to a penalty.

17’I. However, the information, the production of the document

or the answer to the question is not to be admissible in

evidence subsequently against the person, except on a charge

of providing false or misleading information in contravention

of clause 37.

178. Sub-clause 36(5) ensures that a person cannot be

penalised under any other law for furnishing information,

producing a document or answering a question when required to

do so.

179. Sub-clause 36(6) provides an exception to sub—clause (4)

in order to allow a refusal to furnish information, to produce

a document or to answer a question on the ground of

self-incrimination in relation to an offence where a charge

has been laid but not finally dealt with.

Clause 37 - False or misleading information

180. This clause provides for penalties for knowingly giving

false or misleading information to the Commission or to any

person performing its functions.

Clause 38 - Obstructing or hindering Commission

181. This clause provides for penalties for insulting.

obstructing, hindering, molesting or interfering with a member

of the Commission or a person acting on behalf of the

Commission while the member or person is holding an inquiry or

carrying out an investigation.

51.

Clause39—Commi SSi ~

submissions

182. This clause requires that, before the Commission makes an

adverse report to the Minister on an act or practice which in

its view infringes the Bill of Rights, it shall give to the

person responsible, and to the responsible Commonwealth, State

5 or Territory Minister, a reasonable opportunity to make oral

or written submissions to the Commission or both.

Clause 40 - Complainant to be notified of ~

183. Where the Commission inquires into an act or practice in

response to a complaint, but finds that the Bill of Rights has

not been infringed, sub-clause 40(1) requires it to notify the

complainant of its findings and of its reasons.

184. Sub-clause 40(2) permits the Commission to exclude

material from a notice given under sub-clause 40(1) having

I regard to the matters and obligations of the Commissionmentioned in sub—clauses 29(5) and (6).

Clause 41 - Reports to contain recommendations

185. Sub-clause 41(1) is concerned with the report to be made

to the Minister administering the Australian Bill of Rights

legislation after an examination under paragraph 25(d) of an

enactment or proposed enactment. it applies where such an

examination discloses, in the Commission’s view, a conflict

with the Bill of Eights. it requires that the report shall

include any recommendations for amendment which the Commission

may wish to make, and that a copy of the report shall be given

to the Minister apparently responsible for the enactment or

proposed enactment.

52.

186. Sub-clauses 41(2) and (3) are concerned with the reports

to be made to the Minister admincstering the Australian Bill

of Eights legislation after an inquiry under paragraph 25(a)

into an act or practice. They apply where the Commission has

found that the Bill of Rights has been infringed, and where

settlement has not been considered appropriate, or has been

attempted unsuccessfully.

187. In such a case, sub--clause 41(2) requires an initial

report which shall include the Commission’s findings and

reasons, and i~y include any recommendations for preventing a

repetition of the act or a continuance of the practice which

infringes the Bill of Rights. The recommendations may include

a recommendation that compensation be paid. This initial

report shall be furnished to the Minister administering the

Australian Bill of Rights legislation and also to the

Commonwealth, State or Territory Minister who appears to be

responsible for the relevant act or practice. The report

shall also be furnished to the complainant, where the

complainant is the person affected by the act or practice, or

~ be furnished to a complainant who is not the person

affected by the act or practice. -

188. Sub-clause 41(3) applies when a period of 60 days has

elapsed after the report under sub-clause 41(2) is furnished

to the Minister, and the CommissiOn has neither altered its

opinion that the act or practice infringes the Bill of Rights

nor been satisfied that reasonable steps have been taken to

prevent the recurrence or continuation of the problem. At

that stage, the Commission is to make a second report to the

Minister administering the Australian Bill of Rights

legislation, incorporating both the initial report and any

response which has been received from the responsible

Minister. This second report shall indicate whether, so far

as the Commission is aware, any action has been taken (and if

so what) in response to its initial findings, and shall also

53.

explain why the Commission is not satisfied that reasonable

steps have been taken to prevent a repetition of the relevant

act or a continuation of the relevant practice.

189. The effect of sub-clauses 41(2) and (3) is thus to give

to the responsible Minister, before the Commission’s final

report, a period of 60 days in which to persuade the

Commission to alter its opinion, to take remedial action or to

make representations which must be included in the

5Commission’s final report.

L90. Sub-clause 41(4) permits the Commission to exclude

material from a report given under sub-clause 41(2) or (3)

‘ having regard to the matters and obligations of the Commission

mentioned in sub--clauses 29(4) and (5).

191. Where the Commission does exclude, under sub-clause (4).~

material from a report, sub~-clause 41(5) requires the

Commission to prepare and furnish a separate report to the

Minister administering the Australian Bill of Rights

legislation setting out the excluded material and its reasons

for excluding the material

clausej~tstobe tabled in the Parliament

192. Under sub-clause 42(1), a report on an examination of an

enactment or proposed enactment made pursuant to

aragraph 25(d), a report as to enactments that should be made

by the Parliament or action that should be taken by the

Commonwealth recommended in relation to the Bill of Rights

under paragraph 25(e), or a final report on an inquiry into an

act or practice made pursuant to sub-clause 41(3), must be

tabled in each House of the Parliament within 15 sitting

days. However, the tabling requirement does not apply to an

initial report on an act or. practice made pursuant to

sub-clause 41(2). The 60 day period allowed by the two-stage

54,

reporting procedure in clause 41 thus provides an opportunity

for remedial action by which to avoid the tabling of an

adverse report in the Parliament.

193. Moreover, where the report concerns a State, the tabling

requirement is subject to a further delay (this time for a

maximum of 30 days) under sub-clauses 42(2) and (3). in the

case of a report on a State enactment or proposed enactment

made pursuant to sub-clause 41(1). the only delaying mechanism

is that imposed by clause 42(3); but in the case of a report

on a State act or practice pursuant to sub--clause 41(3), the

delay required by clause 42 is additional to that imposed at

an earlier stage under clause 41.

194. in both these cases where a State is concerned.

sub-clause (2) requires the Minister administering the

Australian Bill of Rights legislation to furnish a copy of the

report to the relevant State Attorney-General.

Sub-clause 42(3) then provides that the Minister shall not

table the report in the Parliament until a period of 30 days

has elapsed, or the State Attorney--General has supplied the

Minister with a relevant statement. As soon as either of

these events has occurred, the report is to be tabled within

15 sittings days. and any relevant statement received from the

State Attorney-General at any time before the tabling occurs

shall also be tabled.

Clause 43 — Delegation

195. This clause enables the Commission to delegate its powers

to a member, staff member, or other prescribed person

(sub-clause 43(1)). Members may also delegate their powers

(sub-clause 43(2)). A power exercised by a delegate is deemed

to have been exercised by the Commission or by the delegating

member (sub-clause 43(3)). The Commission and its members may

continue to exercise their powers notwithstanding any

delegation (sub-clause 43(4)).

55.

Clause 44-Non --disclosure of~y~t~jnformat ion

196. This clause imposes duties of confidentiality on past and

present members of the Commission; on its staff; and on any

person who is or has been authorised to perform its functions.

197. Under sub-clause 44(1), such persons shall not record,

Sdivulge, communicate or otherwise use any information aboutanother~persongained while acting under the provisions of theAct, except in the performance of a duty under the Act. A

penalty is imposed for non--compliance.

198. Under sub--clause 44(2), such persons shall not be

required to divulge such information of the kind referred to

in sub--clause (1), or to produce a document relating to such

matters, to any court or tribunal (see the expanded definition

of “court” in sub-clause 44(4)), except under the present Act.

199. However, sub-clause 44(3) makes it clear that the

requirement of confidentiality does not prevent the giving of

information or production of documents where this is done

I either pursuant to an arrangement under clause 45, or isrequired or permitted by another Act.

Clause 45 - Arrangements with the States

200. The Government hopes that, wherever possible, the

Commonwealth regime of protection for human rights will be

complemented by State laws. Especially where a State has

established an appropriate human rights agency of its own, it

may be appropriate to arrange for powers of the Commission to

be exercised by the State or by that agency.

56.

201. Sub--clause 45(1) authorises such arrangements to be made

between the Minister responsible for the Australian Bill of

Rights legislation and the appropriate State Minister~ in

relation to the examination of enactments or proposed

enactments, only the enactments or proposed enactments of the

State concerned may be subject to such arrangements. In

relation to inquiries into acts or practices, the subject of

such an arrangement would be the acts or practices of the

State concerned and of its officers and authorities and

certain acts and practices of Commonwealth agencies in that

State.

202. Such arrangements may deal with incidental or

supplementary matters (sub-clause 45(2)), and may be varied or

revoked (sub-clause 4b(3)). Any such arrangement, or any

variation or revocation, shall be in writing and shall be

published in the Gazette (sub-clause 45(4)).

Clause 46 - Protection from civil actions

203. Sub-clause 46(1) protects the Commission or a prescribed

person against actions and other proceedings for damages in

relation to anything done or omitted to be done in good faith

in the performance (or purported performance) of the functions

of the Commission or in the exercise (or purported exercise)

of any power or authority of the Commission. Sub-clause 46(2)

protects persons from civil actions for loss, damage or injury

by reason only that a complaint or submission has been made to

the Commission or information has been furnished to the

Commission.

PART Vi -SEVERABiLiTY

204. Clauses 47 and 48 seek to ensure that, for constitutional

purposes, certain provisions are “severable”.

57.

Clause 47 - Operation of Act

205. This clause indicates that each Article of the Bill of

Rights, as set out in Part ii of the Bill, is intended to be

severable.

Clause 48- Operation of Part iii

536. This clause makes it clear that clause 14 is intended to

be severable from the rest of Part 111 (sub-clause (1)).

Sub-clauses 14 (2) to (6), which deal with declaring an

impugned law to have remained in force prior to the court’s

•ecision. are intended to be severable from sub-clauses 14 (7)

to (9). which deal with declaring an impugned law to remain in

force after the court’s decision (see sub-clause 48(2)). The

provisions of sub—clause 14(4) and (6), by which an impugned

law may be declared to remain in force until the date of the

court’s declaration, and sub-clauses 14(8) and (9), by which

the law may be declared to continue in force for an additional

3 months, are intended to operate even if the “fruits of

victory” exception is not regarded as valid (sub-clauses 48(3)

nd (4)). Sub-clause (5) additionally preserves the operation

f the general provision for statutory severability embodied

in section ISA of the Acts Interpretation Act 1901.

•RT Vii - MiSCELLANEOUS

Clause 49- ~ssistance in proceedings involvinaRiflOfRight~

207. This clause enables the Attorney—General to authorise the

granting of legal aid, in cases of hardship, to any person

invoking the Bill of Rights in any legal proceedings where,

having regard to the public interest in having important

questions relating to the operation of the Bill of Rights

determined by the courts it is reasonable to make the grant

58.

cJ~Q~- Regulations

208. This clause provides a regulation-making power.

SCHEDULE

209. The Schedule sets out the English text of the

International Covenant on Civil and Political Rights.

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