Last April, SARC, reporting on the Justice Legislation Amendment Bill 2008 (which extended the ESO scheme), wrote to the Corrections Minister asking about the exemption (given the broad rights-limiting powers the Adult Parole Board can exercise) and received these responses a month later:
5. Why is the Adult Parole Board exempted from the obligation to act compatibly with human rights and to consider relevant human rights when making decisions under s16(2)? The Government decided to make the Charter of Human Rights and Responsibilities (Public Authorities) (Interim) Regulations 2007 to exempt the APB and the Youth Parole Board from the Charter for a period of a year in order to allow the review of the impact of the Charter on these bodies’ work; and to consider the resources that would be required to ensure their compliance with the Charter.
6. Will the exemption in the Charter of Human Rights and Responsibilities (Public Authorities) (Interim) Regulations 2007 be renewed in 2009? The work referred to above is still underway and a decision will be made before the regulations expire on 31 December 2008.
Not exactly chatty, hey? I’ve complained previously in this blog (and elsewhere) about the silent ‘human rights dialogue’ – more correctly a ‘no human rights dialogue’ – that led to the exemption of Victoria’s three parole boards from the Charter’s obligations mandate late last year. One of the few negative comments in VEOHRC’s report card on the Charter was to make a similar complaint. The only significant public comment on this exemption is Hulls’s response to a parliamentary committee in June this year, comments that led me to wonder whether the parole boards’ concerns were based on some shonky comparative legal analysis.
I had, though, been hoping that the recently tabled Annual Report of the Adult Parole Board would be illuminating on these matters. Other reports by public authorities typically include some proud detail on how they are working to comply with the Charter. But, now that the report is available online, the only mention of the Charter is in the opening ‘message’ by Chairperson Justice Simon Whelan. (Murray Kellam, it turns out, quit in September 2007, before the exemption was enacted. Kellam was part of the court in the Court of Appeal’s human rights lowpoint to date, its Underbelly judgment. But Whelan, like most of the judges, has also had his chance to give short shrift to the Charter this year. Interestingly, his contribution was to tell off another public authority, the Registrar of Titles, for trying to comply with its obligations mandate in a dispute between two companies.)
Anyway, here’s what Whelan had to say about the Charter and parole:
The Board is currently exempt from compliance with the Charter of Human Rights and Responsibilities. The Board’s view is that this exemption, which presently expires at the end of this calendar year, was a prudent and responsible step taken by the government. There are, in the Board’s view, compelling reasons for the exemption. The Department of Justice is currently reviewing the issue and the Board is working with officers of the Department in that review. The Board is confident that there will be a satisfactory outcome which will ensure that important features of the Board’s practices are preserved.
Oops. He forgot to add ‘and ensure that Parliament’s objective of promoting all human rights, including those of prisoners, parolees, victims and other stake-holders in the parole systemn, are met’ a the end there. But I’m sure that’s implicit. Alas, also left implicit and mysterious are the reasons why the exemption was ‘prudent and responsible’ (responsible?) and what those ‘compelling reasons’ are. But, rest assured Victorians, you human rights are being very carefully considered behind closed doors, just as Parliament intended when it enacted the Charter.
Whelan’s message also contains a significant hint on how the issue will be dealt with come the end of 2008:
[T]he government has decided to establish a dedicated tribunal to deal with people subject to extended supervision orders. The Board anticipates that its role will be handed over to that tribunal in the middle of 2009.
No word on why this is going to happen. Whelan notes that Kellam dealt with the problems of ESOs in previous reports. And indeed he did, excoriating the government for the lousy facilities and resources for the detainees at Ararat Prison (not that they’re prisonsers!) So, the government’s response, of putting the ESO schemes in the hands of a separate body, isn’t entirely re-assuring.
But it seems to me that one possible reason (or at least consolation prize, for some groups anyway) for this split is that it means that the parole boards’ main work can continue to be exempt from the Charter, while the new supervisory board will be bound by it. SARC, in its report on the extended ESO scheme this year, stated its concern that such dramatic rights-limiting powers are in the hands of a body whose work is essentially unreviewable and who is not bound by the conduct mandate. Such features hardly help the government to make its case that the ESO scheme can avoid attracting a declaration of inconsistent interpretation.
(On that note, I can’t help but wonder what is at issue in two appeals being heard today before the Court of Appeal between anonymous plaintiffs and the Secretary of the Department of Justice. Could Presidents Maxwell, Nettle and Weinberg be hearing a matter that touches on these issues?)
Interestingly, the government will be deciding pretty soon on whether to go the NSW and Qld route of allowing for the post-punishment conviction of some dangerous folks. On any view, that’s a step that will have a lot of problems under the Charter. So, the timing of the shift in mid-2009 is interesting indeed. Alas, it carries the sad implication that Hulls will fail the test of standing by his Charter when it comes to the more routine (but politically hot-button) issue of parole. Let’s hope that, at least, he gives a public explanation for renewing the regulations.