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.

First, the upper house’s Legislation Committee held a hearing into the Bill’s clauses. While the Committee’s report approved the whole bill, a government representative went on the public record with a variety of assurances and clarfications about the Bill, all of which can be cited in court and in other public contexts.

Second, the opposition, and later the government, proposed amendments to the Bill inserting a sunset clause into its sentence indication provisions. The opposition’s amendments would have placed the clause on all the sentence indication provisions, but the government amendments, which were adopted, only placed a clause on the Supreme and County Court schemes. These were more controversial, as the Sentencing Advisory Council had only recommended a trial scheme in the County Court and had baulked at the Supreme Court scheme.

The sunset clause strikes me as a useful way for parliament to deal with human rights concerns raised while a bill is passing through parliament, especially where – as was the case with the sentence indication scheme – the concerns depended on predictions about how the scheme will play out in practice. The clause ensures that the scheme’s continuation will depend on a new Bill, which will be subject to a statement of compatibility and a SARC report that can draw on the experience between now and 2010. Moreover, renewal of the legislation is not a forgone conclusion; a similar (pilot) scheme introduced in NSW in 1992 was only renewed for one year and eventually abandoned, following dissatisfaction with its procedures and a study that found that it had not encouraged early guilty pleas but had led to reduced sentences for those who pled at indications, compared to those who pled earlier (e.g. because of remorse.)

The sunset clause cannot be attributed directly to the Charter – as the opposition notably refuses to rely on the Charter in this way, and the concerns were in any event expressly linked to the SAC’s report – but this outcome nevertheless shows that parliamentary dialogue isn’t just talk.

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