The Charter follows the much vaunted dialogue model when it comes to statutes, including mechanisms for pre-enactment dialogue, such as statements of compatibility and SARC reports. A unique feature of the Charter is that this dialogue also extends to regulations, by virtue of one of the Charter’s consequential amendments to the Subordinate Legislation Act 1994. The two mechanisms for this dialogue are Human Rights Certificates:
12A(1) The responsible Minister must ensure that a human rights certificate is prepared in respect of a proposed statutory rule, unless the proposed statutory rule is exempted under subsection (3).
and a new head of review for SARC in its regulation review function:
21(1) The Scrutiny Committee may report to each House of the Parliament if the Scrutiny Committee considers that any statutory rule laid before Parliament-… (ha) is incompatible with the human rights set out in the Charter of Human Rights and Responsibilities…
Alas, this dialogue lacks the transparency of the parliamentary dialogue. Human Rights Certificates (like the many other statements and certificates produced in respect of regulations) aren’t published at large (although the various documents may be circulated as part of consultations on regulations.) And SARC has not issued any reports under s. 21(1)(ha) (or, indeed, at all.)
However, one public document was tabled in Parliament this week: SARC’s Annual Review of its reporting function on regulations for 2007 (the first year of the Charter’s operation.) It contains 13 pages on the Charter-related aspects of SARC’s regulation work including six examples covering five occassions in 2007 when SARC correpsonded with the relevant Minister about a Charter issue:
- The first, second and fourth examples cover SARC’s commendation for comprehensive and helpful Human Rights Certificates, notably setting out two certificates in full. The contents of human rights certificates are set out in the Subordinate Legislation Act 1994 as follows:
12A(2) A human rights certificate must- (a) certify whether, in the opinion of the responsible Minister, the proposed statutory rule does or does not limit any human right set out in the Charter of Human Rights and Responsibilities; and (b) if it certifies that, in the opinion of the responsible Minister, the proposed statutory rule does limit a human right set out in the Charter of Human Rights and Responsibilities, set out- (i) the nature of the human right limited; and (ii) the importance of the purpose of the limitation; and (iii) the nature and extent of the limitation; and (iv) the relationship between the limitation and its purpose; and (v) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.
This formulation differs from the contents of Statements of Compatibility in that it does not require an explanation of how a regulation is compatible with rights unless the Minister considers that a particular right has been limited. In that case, the Minister must address each of the Charter s. 7(2) factors. The Annual Report sets out in full the Human Rights Certificate for the Sex Offenders Registration (Amendment) Regulations 2007, addressing a limitation to offenders’ right to freedom of movement and explaining why the regulation doesn’t limit offenders’ right to privacy; and the Human Rights Certificate for the Child Wellbeing and Safety Regulations 2007, explaining why a requirement for birth information to be distributed to maternal health centres doesn’t interfere with mothers’ and childrens’ right to privacy.
- Example 3 is a general query SARC raised about the following exemption for the requirement to produce a Human Rights Certificate:
12A(3) Subsection (1) does not apply if the responsible Minister certifies in writing that in his or her opinion- (a) the proposed statutory rule is a rule which relates only to a court or tribunal or the procedure, practice or costs of a court or tribunal…
That exemption obviously covers some quite significant regulations that could engage a number of Charter rights, especially procedural rights. The Attorney-General responded:
The reason for the exemption is that the Government was of the view that the exemptions should mirror the exemptions in section 8(1) of the Subordinate Legislation Act with respect to the requirement to prepare a regulatory impact statement in respect of statutory rules.
SARC’s regulation scrutiny function remains in place for such regulations.
- The final two examples involve substantive human rights concerns raised by SARC, both touching on matters that have been controversial overseas:
First, SARC raised a query about the part of the omnibus Occupational Health and Safety Regulations 2007 that covers the risks posed by lead for workers in the lead industry. Controversially, the regulations treat women and men differently, requiring more checks and setting lower thresholds for exclusion from work for women who are of reproductive age. This issue was the subject of a United States Supreme Court decision and Australian Federal Court decision. SARC asked for advice on how the effects of lead may differ for men and women. The Minister responded that he was advised that lead poses dangers for foetuses and breast-fed infants at lower levels than any risks for sperm, that the regulations follow a national standard and that they would be reviewed if the national standard changed.
Second, SARC raised a query about the Tobacco Regulations 2007, which set out the details of Victoria’s regulation of tobacco advertising. SARC asked why the prescribed notice concerning sale of cigarettes to minors didn’t contain an attribution to the Victorian government (in contrast to similar regulations elsewhere in Australia and engaging the right of tobacco sellers not to express views that aren’t their own.) In a detailed response, the Minister defended the notice as a statement of law (rather than fact), advised that tobacco sellers typically use government-distributed notices that include a Victorian government attribution and argued that tobacco advertising regulation in any case falls within the public health limitation on freedom of expression in Charter s. 15(3). (SARC relied on the controversial decision of the Canadian Supreme Court invalidating that country’s tobacco advertising laws in part because of the ban on attributing government warnings to the government. That decision was one of the justifications for the exclusion of corporations from rights protection under the Charter. However, while that presumably excludes the manufcaturers of most tobacco products, it may not cover many of the sellers of tobacco.)
And that’s it on the HR dialogue on regulations until this time next year!