The consequences of Charter s. 30

Since 1st January 2007, every bill introduced into the Victorian Parliament except one (the Abortion Law Reform Bill) has been accompanied by a Statement of Compatibility. And every bill has been the subject of a report from SARC. Every bill, that is, except two bills introduced into Parliament last week, which have already passed and will, presumably, very soon be Acts.

One bill is the Salaries Legislation Amendment (Salary Sacrifice) Bill 2008, which got its first, second and third readings in both chambers on Tuesday. The bill’s purpose is to allow parliamentarians and various constitutional officers to salary sacrifice. That is basically a tax dodge, whereby part of your pre-tax income is used to buy something or contribute to super. I’ve never understood why the tax office allows this. Anyway, the legal complication is that it involves, at least technically, a salary reduction, hence the need for clarifying legislation. It’s good to see that Parliament was so concerned about the ability of judges to salary sacrifice that they rushed through the legislation. But. ‘reducing’ judicial salaries is always tricky thing. (Indeed, on a complete side point, salaries full stop are a tricky thing. Hillary Clinton’s appointment as Secretary of State has raised US constitutional concerns because of the ‘emoluments’ clause, which bars sitting congresspersons from being appointed to public offices that have had a pay rise during their term. The job of Secretary of State had a cost-0f-living pay increase earlier this year. The proposed solution – pioneered by Nixon! – of reducing the salary before Clinton takes office hasn’t satisfied all the constitutional law experts.)

The other bill is one I recently posted about, fixing the ‘loophole’ in the taxi driver registration scheme for people like XFJ who were acquitted on insanity grounds prior to 1997. It passed yesterday, but not before the Greens bemoaned the lack of a report from SARC:

The second issue is that this bill, which raises important questions of the Charter of Human Rights and Responsibilities — questions that require considered thought, pondering, research and consultation with experts — has not been to the Scrutiny of Acts and Regulations Committee.

The reason for the rush, as the government candidly admitted, was the coverage of XFJ in the Herald Sun. In the end, the Greens were satisfied with a reference to the Council’s Legislation Committee, which immediately considered the bill and approved it. 

The result of these events is, arguably, a breach of a provision of the Charter:

30 The Scrutiny of Acts and Regulations Committee must consider any Bill introduced into Parliament and must report to the Parliament as to whether the Bill is incompatible with human rights.

The use of the present tense arguably implies that the report must occur while a bill is a bill. That also makes sense as a matter of policy, as the whole point of SARC scrutiny is to advise parliament in its deliberations on whether or not to enact a bill. All too late now.

So, what are the consequences of a breach of Charter s. 30? This issue is the subject of another curious drafting quirk in the Charter. Every other parliamentary event required by the Charter is the subject of an express savings clause providing that a failure to comply with it has no impact on the validity of a law:

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.

31(9) A failure to comply with subsection (3) or (5) 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.

36(5) A declaration of inconsistent interpretation does not- (a) affect in any way the validity, operation or enforcement of the statutory provision in respect of which the declaration was made; or (b) create in any person any legal right or give rise to any civil cause of action.

So, statements of compatibility, the procedures for override declarations and the procedures following declarations of inconsistent interpretation can all be breached without any possible consequences for validity. Does the absence of such a provision for SARC reports imply that their absence might have consequences for validity or at last found a ‘legal right’ or a ‘civil cause of action’? Oooh. It’s hard to see why SARC’s reports should somehow be more important than these other processes, of course. But maybe it’s another fun Charter argument that XFJ could raise when the question of his accreditation comes up for further litigation. See my earlier post on Charter claims involving Parliametary breaches of the Charter.

That being said, there is a mechanism that would seem to permit SARC to report on both of these statutes eventually.

SARC in conversation

A major part of the UK Joint Committee on Human Rights’s work, especially its scrutiny work, is writing letters to the government and publishing the responses. This is a form of dialogue and may also be part of whatever is meant by the concept of a ‘human rights dialogue’. Such conversations can have three broad outcomes: to draw the government’s attention to a potential problem with a bill (or law); to prompt the government to provide additional detail to parliament about an aspect of a bill; and to place the government’s take on some specific issues on the record. The latter angle is controversial in the UK, where there’s an argument that a court taking account of a parliamentary report is a breach of a different bill of rights, the Bill of Rights 1689:

9. That the freedom of speech, and debates or proceedings in parliament, ought not to be impeached or questioned in any court or place out of parliament.

Fortunately, Victorian courts don’t have to puzzle over this provision, as the matter is put beyond doubt by the Interpretation of Legislation Act 1984:

35  In the interpretation of a provision of an Act or subordinate instrument-…  (b) consideration may be given to any matter or document that is relevant including but not limited to- …. (ii) reports of proceedings in any House of the Parliament; (iii) explanatory memoranda or other documents laid before or otherwise presented to any House of the Parliament; and (iv) reports of Royal Commissions, Parliamentary Committees, Law Reform Commissioners and Commissions, Boards of Inquiry or other similar bodies.

This provision also makes it clear that SoCs can also be considered. 

In Sabet, Hollingworth J, in deciding whether or not Charter s. 25(1) is limited by its heading, considered the relevance of a SARC report (actually a report of a Ministerial response to an earlier SARC query):

 Finally, in arguing that s 25 is not limited to criminal proceedings, Dr Sabet seeks to draw comfort from a comment made by the Scrutiny of Acts and Regulations Committee, when it was considering the Working with Children Amendment Bill 2007. Section 28 of the Charter requires a Minister who introduces any new legislation to cause a statement of compatibility with the Charter to be laid before the House of Representatives before the second reading speech. The committee considers new legislation as part of that process. During the course of its deliberations, the committee raised a concern that a determination by the relevant Secretary to the effect that a person posed a risk to children, because they had been charged with a criminal charge, may breach the presumption of innocence of the person the subject of the charge. The committee quoted the following passage from a European decision which will be considered shortly: “The presumption of innocence is binding not only on the court dealing with the case but also on other organs of the State.”

In responding to the committee’s submissions, the Attorney-General reiterated the position he has adopted in this proceeding, namely, that the presumption does not apply outside the context of criminal proceedings. In doing so, the Attorney-General adopted a broad view of criminal proceedings, saying that they were not limited to the trial, but would include pre-trial matters, such as bail, and post-trial matters, such as sentencing. Even assuming that the court can have regard to views expressed during such a committee meeting, it is not clear how the court is assisted by that particular committee debate. At best, it demonstrates that there are differing views as to the breadth of application of the presumption – a point that is already patently evident in this case from the contrary submissions advanced by Dr Sabet on the one hand, and the Board and Attorney-General on the other.

Hollingworth is spot on there. While that exchange might somehow be relevant to a debate about the meaning of that particular bill amending the Working With Children scheme, it couldn’t possibly cast light on the meaning of Charter s. 25(1), which was enacted two years earlier and wasn’t being amended by the new bill. So, she got something right!

Anyway, the latest SARC Alert Digest No 15 of 2008 contains a number of fairly interesting examples of this sort of human rights dialogue:

SARC in short

I don’t usually cover reports of the Scrutiny of Acts and Regulations Committee in detail on this blog. Given my job advising SARC on ‘human rights’ (i.e. the Charter), it’d be invidious to engage in the kind of detailed critique I mete out to judgments and the like. Criticism of the reports (which are the Committee’s, and may or may not be based on drafts I prepare) would either be a breach of parliamentary privilege or some sort of weird self-flagellation. Given the role SARC has taken on providing some scrutiny of Statements of Compatibility, laying into them is also tricky. But that’s a pity, as SoCs and SARC Charter reports form the overwhelming majority of Charter analysis out there at the moment. But I do try to note developments in the parliamentary dialogue, and there are a number of interesting ones in Committee’s final Alert Digest for the year.

SARC’s role under the Charter is set out in its very own section:

30 The Scrutiny of Acts and Regulations Committee must consider any Bill introduced into Parliament and must report to the Parliament as to whether the Bill is incompatible with human rights.

But what is a ‘report’? Charter s. 30 says what the report has to be about, but it is silent as to the form of the report. Finding an appropriate style for Charter reports is the trickiest part of my job, much tougher than reading bills and researching the wide world of human rights law. The report has to be simultaneously: (a) accessible to lay parliamentarians; (b) defensible in its legal analysis; (c) parliamentary in its language; (d) faithful to Charter s. 30; and (e) as brief as possible. A further foible – familiar to e-mail users – is the difficulty of getting the tone right, with what are, in a sense, critiques of others’ work. These various priorities, as they say in sentencing judgments, ‘pull in different directions’. Given SARC’s tight timelines, it’s impossible to reinvent the stylistic wheel for each issue. But, in these early years, it’s also important not to get trapped by an initial approach.

When the Charter first commenced, Charter commentary by SARC appeared interspersed with the general summary and traditional commentary on particular provisions. That changed in August or so (around the time I started advising), with the adoption of a separate Charter report at the end of the regular report (reflecting (arguably) the terms of Charter s. 30 and the need for the Alert Digest to be conveniently compiled from drafts by two separate legal advisers). A further change in May this year involved dropping the sections explaining why SARC thought a bill was compatible (often just brief summaries of the Statements of Compatibility), again arguably reflecting the terms of Charter s. 30, and also adopting a less wordy style for the report on incompatibility (with less “The Committee additionally notes…” language), in an attempt to ensure that key human rights concerns aren’t lost in a morass of rights-talk dross (a problem that also arises with SoCs.)

Anyway, a further change, appearing in Alert Digest No. 15 of 2008, is the adoption of some stylistic techniques of the UK Joint Committee on Human Rights. (The JCHR isn’t a scrutiny committee, but the problem of communicating human rights analysis to a lay audience remains.) The new feature is the use of short snappy summaries. Here are the ones from today’s Digest:

The Charter vs Parliament

One of the core principles of the Charter is that it doesn’t affect Parliament’s powers. Those powers are preserved by the limited nature of the Charter’s operative provisions (limited to interpretation, and excluding the non-administrative capacities of parliament from the oblgiations mandate.) They are also made clear in three express savings provisions:

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.

32(3) This section does not affect the validity of- (a) an Act or provision of an Act that is incompatible with a human right; or (b) a subordinate instrument or provision of a subordinate instrument that is incompatible with a human right and is empowered to be so by the Act under which it is made.

36(5) A declaration of inconsistent interpretation does not- (a) affect in any way the validity, operation or enforcement of the statutory provision in respect of which the declaration was made; or (b) create in any person any legal right or give rise to any civil cause of action.

But could the Charter still be raised in court in an action against Parliament?

Petra Butler recently gave a talk at Melbourne Law School about just such an action in New Zealand. The recently booted-out Labour government caused a lot of controversy by passing a new Electoral Finance Act late last year. (See the pictured front-page editorial in the NZ Herald, featuring a gagged man, which was later the subject of a successful press council complaint.) An article in the latest issue of the Public Law Review outlines a number of concerns about the statute, notably its quite extreme limits on third-party advertising. Indeed, incoming PM Key has earlier announced that repealing the Act will be his first move upon his election. For NZBoRA groupies, a further controversy is how the NZ Attorney-General Michael Cullen fulfilled the following obligation under the NZBoRA:

7 Where any Bill is introduced into the House of Representatives, the Attorney-General shall,— (a) In the case of a Government Bill, on the introduction of that Bill; or (b) In any other case, as soon as practicable after the introduction of the Bill,— bring to the attention of the House of Representatives any provision in the Bill that appears to be inconsistent with any of the rights and freedoms contained in this Bill of Rights.

Cullent didn’t report. In accordance with the usual (and excellent) NZ practice, the legal advice he received on the issue is published, complete with the names of the advising lawyers: Val Sim, Crown Counsel and (a name now familiar to Charter groupies) Joanna Davidson, as peer reviewer. The advice described the freedom of expression views as ‘finely balanced’ but deferred to Parliament’s ‘wide margin of appreciation’. Andrew Geddis, in the PLR, casts this ‘vet’ as ‘overly deferential to the government’s policy preferences’. 

Somewhat astonishingly, an action was commenced in New Zealand’s High Court seeking a declaration that the Attorney-General was in breach of s7 of NZBoRA. The action was commenced before the Bill was passed, but the High Court declined the request for urgency. By the time the action was heard, the Bill had passed, but declarations were sought on the basis that a declaration should be made about the past breach and that s7 required the Attorney-General to recommend the re-introduction of the bill accompanied by an appropriate s7 statement. The Attorney-General responded with a request to strike out the application as an interference with parliament and as an attempt to seek an unavailable declaration remedy on a moot point. In Boscawen v Attorney-General [2008] NZHC 949, a judge of the High Court agreed to the striking out. Denis Clifford’s key finding was that:

when the Attorney-General responds to his duty under s 7 of NZBORA and determines ­ as the case may be ­ that there are or there are not inconsistencies between a bill and the rights and freedoms contained in NZBORA, and therefore determines whether to draw or not draw such inconsistencies to the attention of the House, the Attorney-General performs a function which falls within the proceedings of Parliament. I think, therefore, that questions of the privilege, whether described in terms of non-interference in the internal proceedings of Parliament, or as questions of Article 9 [of the Bill of Rights 1689] privilege …  mean that judicial review is not available.

According to Butler, the striking out has been appealed to the NZCA, but it would be quite a surprise if it reaches a different conclusion.

The general principles cited in Boscawen are also part of Victorian law. So, would they apply to the equivalent provision of the Charter?:

28(1) A member of Parliament who proposes to introduce a Bill into a House of Parliament must cause a statement of compatibility to be prepared in respect of that Bill.

(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.

(3) A statement of compatibility must state- (a) whether, in the member’s opinion, the Bill is compatible with human rights and, if so, how it is compatible; and (b) if, in the member’s opinion, any part of the Bill is incompatible with human rights, the nature and extent of the incompatibility.

As is well known, Charter s. 28 differs from NZBoRA s7. In NZ, statements must only be made if the A-G thinks a bill is incompatible. By contrast, the Charter requires a statement for every bill. This strikes me as a potentially significant difference, because the making of a statement, as opposed to its content, is not a question of legal judgment about the human rights content of a bill.

SARC on dust, death and dodgy fish

The Scrutiny of Acts and Regulations Committee’s 13th Alert Digest for the year (considering a record number of bills, at least in recent years) highlights three Charter issues:

• Asbestos Diseases Compensation Bill: SARC queries whether the new procedures designed to take account of the lengthy latency and fatal result of asbestos diseases should be extended to cover non-asbestos diseases with similar charcateristics, pursuant to the Charter right to equal and effective protection against (impairment) discrimination.

• Coroners BIll: SARC expresses its concern that the Bill will amend the Charter’s definition of ‘court’ to cover the newly created Coroners Court, thus bringing the new body within the Charter’s partial exemption for courts and tribunals from the conduct mandate (despite the new body having no role in either developing the common law or resolving private disputes.) SARC will ask the Attorney-General what the (exempt) non-administrative capacities of the Coroners Court would be and whether there are any ‘exceptional circumstances’ (a la the override provision) that justify a permanent narrowing of the Charter’s protection for human rights.

• Primary Industries Legislation Amendment BIll: SARC commends an excellent statement of compatibility, but also has (what, for it, are) strong words about one provision, which significantly extends an existing offence of selling or possessing an illegally taken fish to cover selling or possessing a fish that has ever been illegally ‘dealt with’ under any Australian law. ‘Dealt with’ includes just about anything anyone ever does with the fish, including transporting and possessing it.  SARC has two concerns: First, that the existing offence includes a reverse onus on the issue of whether the defendant knew or ought to have known of the illegality. This is especially concerning, because the offence applies to consumers, not just commercial operators, and it carries a potential six month sentence. Second, the headings of both the existing provision and the amendment only refer to sale, not possession, so people who plan to possess a fish will have to read the text of the provision to know that they risk prison unless they can prove that they didn’t know about any illegal dealings. The strong words:

The Committee therefore considers that clause 68 may be incompatible with the Charter.

 SARC referred the issue of compatibility with Charter s. 25(1) to parliament and will write to the Miister about the headings (and the otherwise excellent statement of compatibility.)

Britain learns from Victoria

Victoria’s Charter clearly owes more to Britain’s Human Rights Act than any other (domestic) rights document. So, it’s interesting that Britain is looking to Victoria in its examination of whether it should introduce a new British Bill of Rights. The UK Joint Committee on Human Rights recently issued a report on its preferred model, which included the following references to Victoria:

• The report cited Victoria (alongside other Australian jurisdictions) as a rebuttal of the claim that a bill of rights can only emerge following a crisis (like the American or French Revolutions, or Apartheid.) The Australian statutes are actually no evidence of this, as the rights they protect (like the UK’s own Human Rights Act) are almost exclusively drawn from international treaties that were developed in the aftermath of World War Two. Canada, also cited by the Report, is a better example (although it did come in the midst of the Quebec seccessionist crisis.)
• The report endorsed Victoria’s approach of placing ‘the legislature central to the process of human rights protection’. The JCHR’s skeleton draft bill indeed copies Charter s. 28′s requirement that the government issue a detailed statement of compatibility stating how a bill is compatible with human rights (which it noted was inspired by the JCHR’s own experience.) Its version of Charter s. 28 is enhanced by a requirement for a human rights ‘impact statement’ and the extension of the requirement to statutory instruments and orders in council. On the other hand, the draft bill contains no provision equivalent to Charter s. 30 requiring a JCHR report on each bill, presumably reflecting its own decision not to provide a comprehensive scrutiny function.
• The report endorsed Victoria’s requirement in Chater s. 37 that the government make a formal response to Parliament in the event of a declaration of incompatibility. However, its draft expands on the requirement, setting a three month deadline for an initial response, a six month deadline for a remedial response, a requirement for a parliamentary motion in response to both statements and a power for a court to judge the remedial action. Needless to say, the JCHR draft doesn’t use Victoria’s dreadful ‘declaration of inconsistent interpretation’ terminology.
• The report adopted Victoria’s requirement of statutory reviews, replacing the four-year and eight-year reviews by the Attorney-General mandated by Charter ss. 44 and 45 with a single five-year review performed by an ‘independent panel’.
• The report wholeheartedly endorsed the consultative process that led to the adoption of Victoria’s Charter, ‘in particular its focus on public engagement’.

All up, a very positive verdict on the Charter. That being said, the JCHR folks seem to follow the ‘if you don’t have anything nice to say, don’t say it’ approach, at least as regards comparative lessons of the negative variety. Notably, the JCHR wholly rejected the government’s proposal for a British Bill of Rights and Duties: (BORAD!)

SARC on prisoners’ civil claims

The Victorian Parliament is currently considering a bill to quarantine (for twleve months) the money prisoners receive from the state pursuant to claims for civil wrongs. The Second Reading Speech explained the purpose of the Bill as follows:

The government intends to address the situation where an offender receives an award of damages from the state and therefore has a much improved financial situation. Victims can then choose to take advantage of that improved financial situation by taking their own legal action in the knowledge that there are assets that may satisfy a successful judgement. The government is aware of the perceived inequity when offenders are seen to use the law for their own purposes through pursuing compensation arising from their circumstances in custody. This bill represents a step in addressing that inequity.

The Bill has its origins in a political debate in New Zealand about claims being made under its Bill of Rights Act (which, in contrast to the Charter, creates both a  cause of action for breach of human rights and a remedy of damages.) Challenges to the NZ Act have to date failed on procedural grounds.

The Human Rights Law Resources Centre made a lengthy submission to SARC on the Bill:

The Centre has grave concerns about the impact that the Bill would have on the following human rights. The rights listed below are protected under the Charter at the sections indicated.

(a) The right to recognition and equality before the law (section 8).

(b) The right to privacy and reputation (section 13).

(c) The right to protection of families and children (section 17).

(d) Property rights (section 20).

(e) The right to humane treatment when deprived of liberty (section 22).

(f) The right to fair hearing, including the right to equal access to courts (section 24).

(g) The right to an effective remedy (which is fundamental to the protection of all human rights).

…The Centre considers the premise of the Bill to be incompatible with the human rights outlined above… , which are rights that the Victorian government commendably seeks to protect and promote in the Charter. As such, the Centre recommends that the Bill be withdrawn in its entirety.

SARC’s own report on the Bill was tabled in Parliament today. It focuses on a section that requires the fact that a named prisoner has been successful in a claim to be advertised in Victorian and national newspapers:

The Committee observes that the information contained in the notice – that the prisoner has been a victim of a civil wrong committed by the state and is the recipient of an award of more than $10,000 – is potentially sensitive information, particularly given the vulnerabilities of many prisoners. The Committee also observes that this requirement is a mandatory one regardless of the circumstances and, in particular, overrides any confidentiality clause contained in an agreement between the state and the prisoner (see new section 104ZB.) The Committee therefore considers that new section 104Y may engage prisoners’ Charter right against arbitrary interferences in their privacy.

The Committee was also concerned that the requirement may override contrary court orders and laws.

SARC’s report also raises Charter concerns about the exemption of some offenders from the new County Court Koori division and the reverse onus defence of due diligence in an offence relating to factory openings on ANZAC Day.

SARC on two rights quandaries

Apart from its comments on the new Evidence Bill 2008, SARC’s latest report highlights two difficult rights questions posed by bills presently before the Victorian Parliament:

First, given the right to equal protection without discrimination (including on the ground of religious belief and practice), how can Victoria have public holidays over Easter and Christmas, which make it much easier for (Western) Christians to balance work/school and religious observance than other religions?

Second, how, compatibly with human rights, can Victoria solve the problem of litigants accused of violence against someone inflicting further trauma on that person (or intimidating them into dropping their story) by personally cross-examining them? Victoria, like other jurisdictions, has passed laws stopping rape defendants from personally cross-examining rape defendants, but, unlike other jurisdictions that instead provide for the judge or a court-appointed intermediary to do the questioning on behalf of an unrepresented accused, Victoria – on the advice of its law reform commission – instead requires defendants to get a lawyer or requires Legal Aid to provide one. The new Family Violence Protection Bill extends this scheme to respondents to applications for family violence intervention orders in relation to questioning of kids, relatives, alleged victims of violence, people with mental disabilities and anyone else who may be harmed. But there are two crucial details:

• first, presumably because there are a lot of family violence intervention applications and many unrepresented respondents, the bill permits Legal Aid to charge for the lawyer they provide, payable whenever the respondent has means (and enforceable via a charge on their property)
• second, in common with the scheme for rape defendants, the bill provides for defendants to be told that if they don’t get a lawyer (including, if necessary, agreeing to charges from Legal Aid), then, not only can’t they cross-examine, but they also can’t give evidence contradicting the witness! This seems to be a very strict version of the rule in Browne v Dunn (an evidence law rule aimed at ensuring that parties don’t spring factual arguments on eachother.)

The combined result: respondents to many family violence intervention orders will need to pay for the right to defend themselves! Yikes. There’s no doubting the importance of the goal of stopping respondents from harassing their accusers, but this is a classic Charter s. 7(2) issue: is the remedy proportional to this goal and are there any less extreme ways of achieving it?

The Charter vs annoying laws

Rachel Evans and Amber Pike are annoying people. Or, at least, they are worried that they may annoy some people in the next couple of days. They’re right to worry. They plan to speak to (and debate and leaflet and t-shirt and megaphone(!)) people about such thrilling topics as the Pope and his teachings on sexuality; same-sex marriage; abortion in Australia and abroad; Australia’s role in World Youth Day; and anti-gay education. Doubtless, lots of participants in World Youth Day have similar plans to talk to everyone about these exact same topics and will be similarly annoying.

But Evans and Pike differ from the World Youth in at least two ways: First, they’ll be handing out condoms; indeed, Pike will wear (a ‘giant’) one. Second, they – but not the participants – risk being dealt with under this clause of the World Youth Day Regulation 2008:

7(1) An authorised person may direct a person within a World Youth Day declared area to cease engaging in conduct that:… (b) causes annoyance or inconvenience to participants in a World Youth Day Event…

Thanks to the Federal Court, they no longer have to worry. Today, in Evans v State of NSW [2008] FCAFC 130, the Court issued this declaration:

[T]he Court will make a declaration that cl 7(1)(b) is invalid to the extent to which it is applied to conduct which causes annoyance to participants in World Youth Day events.

Unlike a declaration of inconsistent interpretation under the Charter, this particular declaration has legal effect; no-one can now require Pike and Evans to stop doing something just because they are annoying (although Pike and Evans will still have to watch out for other restrictions, like threatening someone’s safety or ‘inconveniencing’ a World Youth, not to mention regular criminal law.) This result was reached by ordinary statutory construction, albeit informed by the Constitution’s freedom of political communication.

Depending on what they think of the (pretty unpopular) regulation in question, opponents of human rights statutes will argue that this case is either an example of the dangers of such statutes or proof of why they are unnecessary. They may well be right, of course. But the case wouldn’t necessarily have been the same if the regulation in question was a Victorian regulation and hence subject to the Charter. Victoria has some annoying laws too. Here are some similarities and differences about the case would have been resolved if clause 7 had been passed south of the Murray:

Rights, policy and SARC

The recent tensions within SARC have now been publicly aired with the first minority report from the Committee since the Charter was enacted. The report outlines concerns from opposition members about procedures within the Committee and about specific aspects of the Bill.

However, it also contains a comment on the Committee’s reporting role under Charter s. 30:

30 The Scrutiny of Acts and Regulations Committee must consider any Bill introduced into Parliament and must report to the Parliament as to whether the Bill is incompatible with human rights.

Drawing on Julian Burnside’s evidence before the Committeee’s inquiry into the Police Integrity Bill, the question of whether or not the Committee’s scrutiny role now includes reporting on questions of policy:

We draw to the Parliament’s attention that SARC has been operating under a narrow definition of the Committee’s powers, that is that issues pertaining to policy are outside the bounds of the Committee’s terms of reference. This narrow definition has been a strong constraint on SARC’s deliberations of all bills considered hitherto.

Mr Julian Burnside of Liberty Victoria expressed the view that the Committee’s terms of reference should, very much, include that of policy debate especially in its deliberations about under Section 7 of the Charter of Human Rights.

The scope of the interpretation mandate

The Charter’s two most feted (and, to date, little-used) provisions are its interpretation mandate:

32(1) So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

(2) International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.

and its declaration power:

36(2) Subject to any relevant override declaration, if in a proceeding the Supreme Court is of the opinion that a statutory provision cannot be interpreted consistently with a human right, the Court may make a declaration to that effect in accordance with this section.

These provisions won’t turn Victoria’s more draconian laws into rights-friendly ones. But it may ensure that, when parliament expresses itself flexibly, unclearly, unintelligibly or thoughtlessly, the courts will have good reason to resolve the mess in a rights-friendly way. And, when the mess can’t be resolved, the courts can raise a (small) stink about it.

But when do these special rules apply? Their scope is only as wide as the term ‘statutory provision’. That’s defined in the Charter as follows:

statutory provision means an Act (including this Charter) or a subordinate instrument or a provision of an Act (including this Charter) or of a subordinate instrument

And what’s an ‘Act’ or a ‘subordinate instrument’? These words are defined in the Interpretation of Legislation Act 1984, which self-referentially tells us:

38 In all Acts and subordinate instruments, unless the contrary intention appears-

Act means an Act passed by the Parliament of Victoria…

subordinate instrument means an instrument made under an Act- (a) that is a statutory rule; or (b) that is not a statutory rule but- (i) contains regulations, rules, by-laws, proclamations, Orders in Council, orders or schemes; or (ii) is of a legislative character…

Seems pretty wide? But it’s not as wide as the ACT, whose interpretation mandate also covers:

• old acts of other legislatures (the UK, the Commonwealth and NSW) that were grandfathered in when the ACT got self-government
• instruments that are not legislative in nature that are made under an Act or instrument or a power under given by any law

The former covers things like the Magna Carta while the latter covers things like search warrants. In the ACT, but not in Victoria, these things can now be re-interpreted under the new mandate.

Still, some laws that apply to Victorians will miss out. The two most obvious ones are the common law and Commonwealth statutes. In its Alert Digest No 6 of 2008, SARC picked up a third category.

The rights of inhalers, the diseased, sex workers and blood donors

Another SARC report, another analysis of the rights of the less popular (and blood donors.) Alert Digest No. 6 of 2008 raised the following human rights concerns:

• Drugs, Poisons and Controlled Substances (Volatile Substances) (Repeal) Bill 2008: This bill removes the sunset clause from  a 2003 package of harm minimisation measure for kids who use inhalants, ranging from searches to confiscation of devices to detention until a willing carer arrives, all mediated by a requirement to act in the best interests of the child. SARC asked, not only whether these measures were reasonable limits on kids’ rights to movement, privacy, liberty and property, not to mention discrimination on the basis of age, but also whether adults were being discriminated against because the harm minimisation measures cut-off as soon as an inhalant user turns 18.
• Public Health and Wellbeing Bill: This massive bill was accompanied by 25 small-type Hansard pages of statement of compatibility. SARC’s report analyses the bill according to its effect on:
  • individuals: are measures to tell people who may be diseased to submit to testing and treatment (at pain of criminal penalties); control their movement (using force); require people involved in needle-stick and other incidents with medical workers, police officer and prison guards to be tested for disease (again using force); test the dead for disease; and control mass movements during health emergencies reasonable limits on the bevy of rights these measures engage?
  • activities: SARC focussed on brothels. Should parliament have a specific provision against sex workers being ‘required’ to service clients that only covers narrow circumstances (like clients refusing to wear a condom?) Should sex workers be allowed to tell clients the results of their compulsory medical check-ups? Should DHS officers be allowed to enter brothels at any time they please to check whether the towels are clean or everyone’s wearing a condom?
  • information: Here, SARC forcussed on blood donation, where donors and the Red Cross get a statutory defence from liability so long as blood is tested and donors are asked some questions. Should all men be asked whether they’ve had male-to-male sex in the last twelve months, or is a different question more appropriate?

• Public Wealth and Hellbeing Bills: Tax, appropriation, etc…

Don’t forget that SARC has advertised for public submissions on the Health bill. They close tomorrow.

SARC wants submissions

The Victorian Parliament’s Scrutiny of Acts and Regulations Committee has this week advertised for submissions on two bills, expressing particular interest in whether the bills unduly trespass on rights and freedoms (its non-Charter human rights scrutiny ground) or whether the bills are incompatible with the rights set out in the Charter (its Charter scrutiny function under Charter s. 30.)

The two bills are:

• Police Integrity Bill 2008: This is a new bill re-establishing the Office of Police Integrity and providing it with numerous powers to investigate police misconduct. The call for submissions is the result of the Legislative Council’s reference of the bill to SARC following the controversy of recent weeks. SARC’s initial report on the bill is here and the Ministerial response is here.
• Public Health and Welfare Bill 2008: This is a major rewrite of Victoria’s Health Act 1958, including a variety of health regulations including coercive powers for public emergencies and the management of people with infectious diseases, as well as numerous specific regimes for services ranging from hairdressing to prostitution. SARC has not yet reported on this bill. However, the bill is the product of a lengthy consultation by the Victorian government. The discussion papers and submissions are here. The bill’s enormous statement of compatibility is here.

Submissions and queries should go the SARC’s senior legal adviser, Andrew Homer (by e-mail) or to SARC Chair Carlo Carli (by mail, care of the Victorian Parliament.) The due date in both cases is Wednesday 28th May. (Note that SARC is always happy to receive submissions on every bill before parliament in relation to any of its terms of reference, whether it advertises for them or not.)

Revisions to statements of compatibility

A new approach to parliamentary human rights dialogue has emerged recently: the revision of statements of compatibility following reports by SARC. The only Charter provision that binds members of parliament is Charter s. 28:

(1) A member of Parliament who proposes to introduce a Bill into a House of Parliament must cause a statement of compatibility to be prepared in respect of that Bill.

(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.

This provision is a little ambiguous on whether or not a statement of compatibility has to be ‘laid before’ both of Victoria’s houses of parliament. On balance, I would have though that it only required a SoC before the first house of parliament (hence all the ‘introduces’ language), but the practice to date has to be to table the SoC in both.

Note that the SoC doesn’t have to be read out, which is a lucky thing for all involved. But Parliament has adopted the practice – not required by the Charter – of incorporating the statement into Hansard, as a change to its sessional orders, explained at the time as follows:

We are endeavouring to have a mechanism to enable statements of compatibility to be incorporated in Hansard in a similar way the second-reading speeches are placed on the Hansard record. The context of how this would work is that at some stage during the presentation of the second-reading debate the sponsoring minister would make it available. The option we could have undertaken was simply to have a table and members would have had access to it on that day and subsequent days when each piece of legislation was being debated, but the intent here is not only for that procedure to be made available to members of the house on the day of its debate, but for it to be incorporated into Hansard so that those looking at the procedures for each passage of legislation could also see not only the second-reading speech and the second-reading debate but also the statement of compatibility. This goes a long way towards putting into effect this government’s decision to have a charter of human rights and to require statements of compatibility. his will be achieved through a very simple machinery of government, a sessional order, that will be put into effect. I would expect it would receive widespread support.

But if the SoC gets tabled twice, does it have to be the same each time? Until recently, it always has been.

But last session, the Legislative Council’s version of the SoC to the Justice Legislation Amendment (Sex Offences Procedures) Bill 2008 differed from the one tabled in the Legislative Assembly. SARC, in its report on that bill, had complained about their being too many typos or errors in it (including a confusion between the Sex Offences Registration Act and the Serious Sex Offenders Monitoring Act, two very different beasts.)  SARC raised the concern with the Attorney-General, who responded:

You have drawn my attention to the Committee’s report (Alert Digest No. 4 of 2008) in which it identified some typographical errors in the Statement of Compatibility. I thank the Committee for bringing these issues to my attention. The typographical errors have been amended and a revised version will be tabled in the Legislative Council and Hansard has also been notified of the changes.

And so it was.

What happened this session was much more dramatic.

A bulwark against tyrrany

SARC’s had a big week. At times, both sides of the parliament have accused members of SARC of being in league with one side or the other in Victoria’s political battle about policing the police. But then there are moments like this:

Mr D. DAVIS — …It is a very broad gamut that this committee has as its tasks, but particularly those tasks that relate to the trespass on rights and freedoms and the administrative powers of government that can be enshrined within legislation, administrative powers that can on some occasions unfairly and unreasonably trespass on the rights of individuals. It is in my view a committee that has been put in place specifically to stand up to the executive, specifically to ensure that those examinations are undertaken and specifically to report to the Parliament in a free and frank way. That is why the opposition regards with such seriousness what occurred with the Scrutiny of Acts and Regulations Committee in recent weeks. One of the major bulwarks against tyranny, one of the major bulwarks against the imposition of unsatisfactory legislation on the Victorian people has been attacked unnecessarily and inappropriately.

Whoa. David Davis is the leader of the opposition in the upper house. And there was this procedural suggestion from the Greens justice spokesperson:

Ms PENNICUIK — …There should be some procedure put in place in the Council whereby until there is a complete report on a bill from the Scrutiny of Acts and Regulations Committee and full answers to any questions asked of the relevant ministers, we should not debate that bill, because we would be debating the bill without full information, and I do not think that is the best use of the Parliament.

The opposition in the Legislative Council moved a motion deferring discussion of the Police Integrity BIll until SARC holds a public hearing, which in turn sparked a point of order that, because SARC had already reported on the bill, it couldn’t report again, so the motion would effectively kill the bill. Yikes.

The rights of gambling lords, child-beaters and rapists

…or, to put it another way, the rights of property owners, parents and people who have paid their debt to society.

What was in that SARC report whose tabling attracted Parliamentary debate? The Committee made significant comments on three bills:

First, the Gambling Regulation Amendment (Licensing) Bill 2008, which sets up some of the recently announced new arrangements for the licensing of gambling in Victoria. One provision of the bill provides ‘for the avoidance of doubt’ that certain past gaming licence holders and their agents and associates have neither an entitlement or a legitimate expectation to a future wagering, betting or keno licence. The Committee asked the Minister for Gaming whether or not any of the affected people are human beings (as opposed to companies), which would engage Charter s. 20.

Second, the Children’s Legislation Amendment BIll 2008, which makes a variety of changes to how young kids are cared for by paid or organised carers. One provision of the bill enhances an existing ban on corporal punishment and ‘discipline which is unreasonable in all the circumstances’. The Committee agreed with a UK House of Lords decision which held that a ban on corporal punishment is compatible with parents’ rights to freedom of religion (including beliefs about discipline.) However, it asked the Minister for Children and Early Childhood Development what ‘discipline which is unreasonable in all the circumstances’ means and how carers are meant to know what it means.

Third, the Justice Legislation Amendment BIll 2008, which (amongst other things) extends the regime for (so-called) extended supervision orders to cover more offenders. The Committee, noting that such orders put enormous powers to curtail rights in the hands of the Adult Parole Board, which in turn is exempt from most regulation including Charter s. 38(1), asked the Minister for Corrections why the Board was exempt and referred the compatibility of the widening of such a body’s powers with the Charter to Parliament for its consideration. As well, the Committee, noting that existing offenders were captured by the extensions, observed that the New Zealand Court of Appeal held in 2006 that a very similar scheme amounted to punishment for the purposes of the rights against double jeopardy and retrospective penalties, and referred that issue of compatibility to Parliament as well. (This issue is a contender for the first attempt to get a court to make a declaration of inconsistent interpretation.) Finally, the Committee criticised the Statement of Compatibility for, amongst other things, failing to bring the New Zealand decision to Parliament’s attention.

What about the Police Integrity BIll, the focus of this week’s trouble?

Trouble in SARC

The Scrutiny of Acts and Regulations Committee (who I advise on Charter issues) has the function of scrutinising bills and regulations. Its newest function is set out in Charter s. 30:

The Scrutiny of Acts and Regulations Committee must consider any Bill introduced into Parliament and must report to the Parliament as to whether the Bill is incompatible with human rights.

SARC is widely thought to be an element of the much-vaunted human rights dialogue that the Charter is meant to promote. However, the Charter did not (explicitly) change either the composition of SARC nor the procedural law under which it operates. Historically, SARC, like similar committees, has operated as a bipartisan committee on the basis of consensus, a route that has been likened to a tightrope.

Hansard this week reveals that things have gotten a little rocky. On Tuesday, the usually uninteresting moment when SARC’s Alert Digest was tabled became a little more interesting:

Mr McIntosh — I understand that after discussions with the Clerk it is the intention of the member for Brunswick to present an Alert Digest that does not contain the minority report that has been provided to the member for Brunswick and also, I understand, the executive officer. It has been signed by all Liberal and Nationals members of that committee and expresses grave concern about the behaviour of that committee in relation to the Police Integrity Bill, a matter of some import. This matter has been canvassed with the clerks prior to today and was provided to the member for Brunswick for inclusion in the Alert Digest. I seek some guidance from the Speaker as to whether that very important minority report that goes to the integrity of the Police Integrity Bill should be included in the Alert Digest for this week.

…

The SPEAKER — Order! I cannot uphold the point of order by the member for Kew. The member for Kew is asking me to comment on a document that is yet to be tabled, and of which I am uncertain of the content.

Despite opposition objections, the report was tabled, sans minority report.

On Wednesday, the debate resurfaced in the upper house,

Is the parliamentary dialogue working?

Most of VEOHRC’s Charter 2007 report card was about various Victorians’ preparations for 2008. The exception was Chapter 8, on ‘Parliament and the 2007 legislative agenda.’ Parliament House was unique in 2007 as one of the only spaces where the Charter was actually operational. (The others were VEOHRC’s own offices and the ghost of s6(2)(b).)  Parliamentarians introducing bills had to table Statements of Compatibility. And SARC had to report on each bill’s incompatibility with human rights.

Chapter 8 reviews the statements and SARC comments and, especially, the interaction between them. Here’s the key finding:

While SARC raised concerns about the human rights compatibility of a number of bills during 2007, the Commission is aware of only one BIll that was amended in response to these concerns.

SARC’s independent vetting of the human rights compatibility of Bills is a critical means by which understanding of the meaning and implications of human rights will be developed in Victoria. While the Commission appreciates that SARC and Ministers will often ‘agree to disagree’, we would expect to see evidence of SARC’s concerns being taken account – or at least a robus parliamentary exchange in relation to these matters.

To get a handle on the numbers of occassions where there was an agreement to disagree, the Commission found that ‘SARC assessed Charer compatibility differently to the Minister’ for 23 bills. The ‘one Bill‘ that was amended in response to a SARC report concerned a drafting error that crept in to the definition of incest in 2006. [Hi there folks who like to google the word 'incest'! And, bye bye.]

Parliament is sitting right now and the lower house will this week debate the Constitution Amendment (Judicial Pensions) Bill 2007. As I posted earlier, the Minister and SARC had a big disagreement on this bill.

An outcome for the new parliamentary dialogue

Charter-inspired parliamentary dialogue has been going on for over a year now. As many have pointed out, such dialogue is subject to many of the limitations that apply to regular parliamentary debate: party politics, lack of legal knowledge in rights, parliamentary incapacity to assess the effects of the bills they pass and the difficulty of making complex amendments on the floor of the house. However, those limitations do not prevent the dialogue from having an impact.

Last sitting saw the passage, at last, of the Criminal Procedure Legislation Amendment Bill 2007, which (amongst a host of smaller changes) introduced (or regularised) a sentence indication scheme for Victoria’s courts. As previously blogged here, that Bill was the subject of a rare multi-stage dialogue between the Minister and SARC. The outcome of that discussion emerged this week in two stages.

The new parliamentary dialogue

Today’s Alert Digest from SARC (whom I advise, but that’s it) has two interesting instances of the new sort of dialogue that the Charter has caused.

One  is a second instance of SARC reporting that a statement of compatibility overstated the rights issues raised by a bill. In this case, like last time, the disagreement concerns the Charter’s right to freedom of movement (which, unlike freedom of expression, has no qualifications for other laws or the public interest):

12. Every person lawfully within Victoria has the right to move freely within Victoria and to enter and leave it and has the freedom to choose where to live.  

The statement of compatibility to a bill that overrides Melbourne City Council’s attempts to evict an international flower show from Carlton Gardens thus not only described the potential for the flower show to limit Victorians’ freedom of movement (i.e. in and out of the gardens in the month when the show is on) but ran through a full Charter s. 7(2) analysis about how such a limit is compatible with our free and democratic society. Oy. On some views, a similar analysis is needed every time a traffic light turns red. I think that such analyses trivialise the Charter