The Charter vs the ICCPR

During the second reading debate on the ART/Embryo/Cloning bills, the shadow A-G, not a big fan of the Charter or international human rights law, referred to both:

The Attorney-General is a very proud advocate, as we know, of his charter of human rights and responsibilities. That charter is based on the International Covenant on Civil and Political Rights of 1966. Article 23 of that covenant provides that: …

The family is the natural and fundamental group unit of society and is entitled to protection by society and the state. The right of men and women of marriageable age to marry and to found a family shall be recognised.

So it seems to me that the international covenant to which Australia is a signatory and has undertaken to the international community to comply with is one that is founded on men and women forming a family and having a right to bring up their children and found a family on that basis….

There’s a reason he cites the ICCPR and not the Charter. The latter provides:

17(1) Families are the fundamental group unit of society and are entitled to be protected by society and the State.

The differences are no accident. The EM says:

It is not Parliament’s intention to create a right to found a family in the Charter. Parliament intends that the term “families” be given a meaning that recognises the diversity of families that live in Victoria, all of whom are worthy of protection.

The deliberate broad definition of ‘family’ is consistent with the UN Human Rights Committee’s General Comment, which leaves definitional matters to member states:

The Committee notes that the concept of the family may differ in some respects from State to State, and even from region to region within a State, and that it is therefore not possible to give the concept a standard definition. However, the Committee emphasizes that, when a group of persons is regarded as a family under the legislation and practice of a State, it must be given the protection referred to in article 23.

The reason for omitting the word ‘natural’ from the Charter, while not spelt out, is presumably similar. Doubtless, it might not have sat all that well with the artificial methods of reproduction contemplated in the Assisted Reproductive Technology Bill 2008. Speaking of artificial, what the hell is a ‘group unit’, anyway?

That the ART Bill was very much in mind was confirmed in the Consultation Committee report,

The consequences of Charter s. 28(2)

The first ever attempt to use the Charter as a point of order in Victoria’s parliament, once again a new use of the Charter prompted by the abortion bill:

Mr Kavanagh — On a point of order, President, the bill mentioned is out of order. The bill was not introduced in this house or in the other house with a statement of compliance with the Charter of Human Rights and Responsibilities. A statement of compliance is required under the Charter of Human Rights and Responsibilities Act before any bill with implications for rights in the charter can be considered by either house of this Parliament.

The minister in the other house and the responsible minister in this house have sought to rely on section 48 of the charter to avoid the need to produce a statement of compatibility. Legal opinion from legal firm Phillips Fox, which opinion is in the public domain, concludes that the minister was mistaken in so relying on that exclusion. Section 48 states in part: Nothing in this charter affects any law applicable to abortion or child destruction … But the bill affects much more than simply abortion and child destruction. The bill also affects a range of other rights that are detailed in the act, including guarantees of equality and non-discrimination under section 8(3) of the charter and issues of rights against unlawful or arbitrary interference with privacy under section 13(a) of the charter. The bill affects freedom of thought, conscience, religion and belief guaranteed under section 14 of the charter. There are also issues about whether the bill raises new criminal offences.

This point canvasses the question of the scope of Charter s. 48, citing not only the legal advice about clause 8 but also, it seems, SARC’s concern about amendments to the ’serious injury’ offences in clause 10. If these concerns are right, then Charter s. 28(2) has been breached:

28(2) A member of Parliament who introduces a Bill into a House of Parliament, or another member acting on his or her behalf, must cause the statement of compatibility prepared under subsection (1) to be laid before the House of Parliament into which the Bill is introduced before giving his or her second reading speech on the Bill.

(It’s possible that Charter s. 28(1) was also breached, but that depends on whether or not a statement was actually prepared for the Abortion Law Reform Bill.)

But what is the consequence of a breach? As the legal advice correctly pointed out, the Charter only spells out the (non-)consequences if the Bill is passed:

29 A failure to comply with section 28 in relation to any Bill that becomes an Act does not affect the validity, operation or enforcement of that Act or of any other statutory provision.

So, what happens before the Bill is passed? Kavanagh argues:

A required statement was not put before either house and therefore consideration of this bill by this house is out of order. I have several copies of the legal opinion from Phillips Fox for the benefit of members of the house if they so desire; that opinion completely supports my contention.

But the point was rejected:

The PRESIDENT — Order! In response both to the point of order and Mr Theophanous’s rebuttal and to Mr Kavanagh’s further point, I need to remind the house that I adjudicate on matters contained within the standing orders. The issue as to whether or not Mr Kavanagh is correct is a matter for the house. I must say it is a complicated and interesting point of order that Mr Kavanagh has raised, but I am confident in the advice I have been given that I have no authority to rule on that matter; it is simply a matter for the house. Any questions relating to the validity of the act are simply matters for the courts.

The relevant standing order appears to be:

14.02 A Bill not prepared according to the Standing Orders and practices of the Council will be ordered to be withdrawn by the President.

I don’t know enough about the law of parliamentary procedure to know if Kavanagh is correct that the President that compliance with Charter s. 28(2) isn’t part of the ‘Standing Orders and practices’ of the Council. (The incorporation of statements of compatibility into Hansard is part of the sessional orders of the Legislative Assembly, but weirdly not of the Legislative Council; however, the Council seems to follow the Assembly’s ‘practice’.) But, if true, it raises what seems to be a significant gap in those standing orders or practices.