Hulls’s Charter

Rob Hulls’s most important contribution to Victorian human rights law, after the Charter itself, is his promulgation,  on the last Friday before the last Christmas before the Charter came into full operation, of regulations exempting Victoria’s three parole boards from the definition of a public authority and, hence, from the Charter’s conduct mandate:

38(1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

To my knowledge, the decision has only been mentioned three times by the government: (1) by VEOHRC in its annual report, where one of its few negative comments was the lack of transparency in the decision; (2) by Hulls at an estimates hearing, where he attributed it to concerns about the parole boards having to give natural justice, and (3) by the current chair of the Adult Parole Board in its annual report, where it applauded the decision as a ‘prudent and responsible step’. 

The exemption is due to expire in 15 days. Here’s what Hulls said in June about his decision as to whether or not to extend the exemption:

They will have to put to me not only a very strong argument as to why they should be further exempted for a period of time but also, if they were not exempted, what resources they believe they would require to fully adhere to the charter. It may not be just a question of resources; that is true. It may well be, on the decisions they make and the timeliness of those decisions that they are required to make when they are dealing with people’s liberty — they do not give reasons for their decisions, as you are probably aware — as they have initially put to me, that it is important that they continue to operate in that way. As judges they admit that in all likelihood they are denying people natural justice. But that has always been how the parole board operates and if you change that, and you put in place a whole range of appeal rights and they have to give voluminous reasons for decisions and the like, it would tie down the work of the parole boards and, in their view, they could well become unworkable. That is their argument. I want to see for myself and get a better feel for the way the boards operate and I will make a decision in due course. that this was done for a period.

And here’s what I said about that same decision:

Time for some hyperbole: when someone writes a history of the Charter a few decades from now, I think that Hull’s decision, whichever way it goes, will feature as a key decision on the path to the Charter’s ultimate fate, whatever that is.

The relevant Charter provision is this one:

46(1) The Governor in Council may make regulations for or with respect to any matter or thing required or permitted by this Charter to be prescribed or necessary to be prescribed to give effect to this Charter.

(2) Without limiting subsection (1), the Governor in Council may make regulations for or with respect to- (a) prescribing entities to be public authorities for the purposes of this Charter; and (b) prescribing entities not to be public authorities for the purposes of this Charter;…

Arguably, though, Hulls’s decision to promulgate the regulations or not is itself subject to the very conduct mandate that Hulls can exempt any public authority (himself included, presumably) from.

Today, a full four days earlier than I was expecting it, Rob Hulls committed to his choice:

Notice is hereby given under Section 17(2) of the Subordinate Legislation Act 1994 of the making of the following Statutory Rules: …

163. Statutory Rule: Charter of Human Rights and Responsibilities (Public Authorities) Interim Regulations 2008

Authorising Act: Charter of Human Rights and Responsibilities Act 2006

Date of making: 16 December 2008

And here’s his choice:

The hidden dialogue on parole

Last April, SARC, reporting on the Justice Legislation Amendment Bill 2008 (which extended the ESO scheme), wrote to the Corrections Minister asking about the exemption (given the broad rights-limiting powers the Adult Parole Board can exercise) and received these responses a month later:

5. Why is the Adult Parole Board exempted from the obligation to act compatibly with human rights and to consider relevant human rights when making decisions under s16(2)? The Government decided to make the Charter of Human Rights and Responsibilities (Public Authorities) (Interim) Regulations 2007 to exempt the APB and the Youth Parole Board from the Charter for a period of a year in order to allow the review of the impact of the Charter on these bodies’ work; and to consider the resources that would be required to ensure their compliance with the Charter.

6. Will the exemption in the Charter of Human Rights and Responsibilities (Public Authorities) (Interim) Regulations 2007 be renewed in 2009? The work referred to above is still underway and a decision will be made before the regulations expire on 31 December 2008.

Not exactly chatty, hey?  I’ve complained previously in this blog (and elsewhere) about the silent ‘human rights dialogue’ – more correctly a ‘no human rights dialogue’ – that led to the exemption of Victoria’s three parole boards from the Charter’s obligations mandate late last year. One of the few negative comments in VEOHRC’s report card on the Charter was to make a similar complaint. The only significant public comment on this exemption is Hulls’s response to a parliamentary committee in June this year, comments that led me to wonder whether the parole boards’ concerns were based on some shonky comparative legal analysis.

I had, though, been hoping that the recently tabled Annual Report of the Adult Parole Board would be illuminating on these matters. Other reports by public authorities typically include some proud detail on how they are working to comply with the Charter. But, now that the report is available online, the only mention of the Charter is in the opening ‘message’ by Chairperson Justice Simon Whelan. (Murray Kellam, it turns out, quit in September 2007, before the exemption was enacted. Kellam was part of the court in the Court of Appeal’s human rights lowpoint to date, its Underbelly judgment. But Whelan, like most of the judges, has also had his chance to give short shrift to the Charter this year. Interestingly, his contribution was to tell off another public authority, the Registrar of Titles, for trying to comply with its obligations mandate in a dispute between two companies.)

Anyway, here’s what Whelan had to say about the Charter and parole:

The Board is currently exempt from compliance with the Charter of Human Rights and Responsibilities. The Board’s view is that this exemption, which presently expires at the end of this calendar year, was a prudent and responsible step taken by the government. There are, in the Board’s view, compelling reasons for the exemption. The Department of Justice is currently reviewing the issue and the Board is working with officers of the Department in that review. The Board is confident that there will be a satisfactory outcome which will ensure that important features of the Board’s practices are preserved.

Oops. He forgot to add ‘and ensure that Parliament’s objective of promoting all human rights, including those of prisoners, parolees, victims and other stake-holders in the parole systemn, are met’ a the end there. But I’m sure that’s implicit. Alas, also left implicit and mysterious are the reasons why the exemption was ‘prudent and responsible’ (responsible?) and what those ‘compelling reasons’ are.