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 and the right to freedom of movement itself, which is mainly concerned with attempts by the state to restrict people’s ability to move freely between different parts of a country (and beyond.)

SARC said:

The Committee observes that clause 4 affects a very small part of Victoria; does not appear to impose any significant constraints on Victorians’ ability to move between parts of Victoria that fall outside of that area; does not target any particular individual or group; and is consistent with normal management of public property. The Committee therefore considers that clause 4 does not engage the Charter’s right to freedom of movement. 

This formulation preserves the relevance of the right to freedom of movement in the case of laws involving large bits of Victoria or for laws that allow groups or individuals to be singled out for movement restrictions. We’ll see if the writers of statements of compatibility are convinced.

The other new dialogue concerns the Criminal Legislaton Amendment Bill 2007, which (amongst other things) will formalise sentence indication hearings in Victoria. The bill was subject to a very brief statement of compatibility and a very long report by SARC last December. Earlier this year, the Minister’s very lengthy response to SARC’s report was published. Today’s report has something new: a further response from SARC to the Minister’s response, raising concerns about it and referring or reiterating referrals of human rights issues to the Parliament. This sort of multi-stage dialogue, a mainstay of the UK’s Joint Committee on Human Rights, is usually impossible in Victoria, because SARC’s report only comes out just before a bill is debated in the lower house and the bill has usually passed the upper house before the Minister responds (and that resonse is considered by SARC.) The change this time is the result of the long summer recess and the upper house’s referral of the bill to its legislation committee, something that may have been a consequence of SARC’s initial report.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s