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. Mr Burnside’s response to a question from Committee MP, Ms Jaala Pulford illustrates the casse in point:
Ms PULFORD – Yes. Obviously the policy considerations are not so much the work of this Committee but specific examples.
Mr BURNSIDE – No, I think we have covered all of the ones that seem to affect the charter.
Ms PULFORD – Right to life, protection and security, some of those that were raised in the submission.
Mr BURNSIDE – Yes, that comes indirectly through the creation of a new armed force in the community. But can I say the policy questions are really what section 7 of the charter requires because it involves balancing the rights on the one hand against the legitimate objectives of the OPI on the other, and striking a balance between them is where you get the reasonable trade off that section 7 contemplates. So it is all in the area of policy, I think, which is why I cannot give a clear answer and really only want to suggest – –
Mrs PEULICH – We will be quoting you on that, Mr Burnside.
The CHAIR – Obviously, our role is to inform the Parliament so that they can make those decisions.
Mr BURNSIDE – Okay, since you say you are going to quote me, I may have overstated saying it is all in the area of policy. It involves necessarily a substantial consideration of policy matters.
Mrs PEULICH – I agree with you.
Mr BURNSIDE – It may go beyond pure policy.”
This evidence calls into question the Chair’s ability to adequately and impartially guide the functioning of this important Committee.
In yesterday’s Legislative Council debate on the Police Integrity Bill, government SARC member Jaala Pulford gave this response:
Our role is clearly printed in our terms of reference and it is a very specific role, including consideration of section 7 of the charter and in what circumstances human rights may be appropriately limited. At no point in section 17 of the Parliamentary Committees Act, where SARC’s terms of reference are outlined, could I find consideration of policy issues. We often discuss the role of the charter of human rights and the way that it interacts with legislation.
The role the committee has played has been in identifying where the charter is engaged and in our report to bring that to the attention of members of Parliament for theirs consideration of legislation. It is a committee that works to very quick turnaround times and very short time lines…. SARC does not have a mandate to comment on policy and because it does not have a mandate to comment on policy, it does not have the resources or the time to comment on policy in addition to the other work that it does. This has been the role of SARC for 15 years.
But will it be the same role for the next 15?