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. I’ve previously posted about the Constitutional Amendment (Judicial Pensions) BIll, which, in the course of removing discrimination from the judicial pensions provisions for surviving ‘spouses’, arguably introduced some discrimination  and (perhaps) threats to judicial independence by limiting the retrospective changes to opposite-sex domestic partners and by stripping the pension from spouses who get a new domestic partner. The bill moved through the lower house without any formal response to SARC’s concerns from the Attorney-General and SARC’s latest report contains no correspondence from him. However, the Statement of Compatibility incorporated into Hansard in the LC when the Bill was introduced there is quite different from the lower house version. It states:

This statement of compatibility addresses a number of human rights issues raised by the Scrutiny of Acts and Regulations Committee’s Alert Digest No 1 of 2008.

And so it does, going into a full Charter s7(2) analysis on the transitional provision and the provision for removing partner pensions. By contrast, the lower house version found no human rights issues and simply feted its promotion of the right against discrimination!

I think this is a positive development in terms of parliamentary dialogue. It does, however, mean that every bill now has up to two statements of compatibility. Clearly, its the second one that is the government’s final say, but it might make things tricky for courts trying to rely on these statements when interpreting legislation. And how many lawyers are going to know to check both?

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