SARC in conversation

A major part of the UK Joint Committee on Human Rights’s work, especially its scrutiny work, is writing letters to the government and publishing the responses. This is a form of dialogue and may also be part of whatever is meant by the concept of a ‘human rights dialogue’. Such conversations can have three broad outcomes: to draw the government’s attention to a potential problem with a bill (or law); to prompt the government to provide additional detail to parliament about an aspect of a bill; and to place the government’s take on some specific issues on the record. The latter angle is controversial in the UK, where there’s an argument that a court taking account of a parliamentary report is a breach of a different bill of rights, the Bill of Rights 1689:

9. That the freedom of speech, and debates or proceedings in parliament, ought not to be impeached or questioned in any court or place out of parliament.

Fortunately, Victorian courts don’t have to puzzle over this provision, as the matter is put beyond doubt by the Interpretation of Legislation Act 1984:

35  In the interpretation of a provision of an Act or subordinate instrument-…  (b) consideration may be given to any matter or document that is relevant including but not limited to- …. (ii) reports of proceedings in any House of the Parliament; (iii) explanatory memoranda or other documents laid before or otherwise presented to any House of the Parliament; and (iv) reports of Royal Commissions, Parliamentary Committees, Law Reform Commissioners and Commissions, Boards of Inquiry or other similar bodies.

This provision also makes it clear that SoCs can also be considered. 

In Sabet, Hollingworth J, in deciding whether or not Charter s. 25(1) is limited by its heading, considered the relevance of a SARC report (actually a report of a Ministerial response to an earlier SARC query):

 Finally, in arguing that s 25 is not limited to criminal proceedings, Dr Sabet seeks to draw comfort from a comment made by the Scrutiny of Acts and Regulations Committee, when it was considering the Working with Children Amendment Bill 2007. Section 28 of the Charter requires a Minister who introduces any new legislation to cause a statement of compatibility with the Charter to be laid before the House of Representatives before the second reading speech. The committee considers new legislation as part of that process. During the course of its deliberations, the committee raised a concern that a determination by the relevant Secretary to the effect that a person posed a risk to children, because they had been charged with a criminal charge, may breach the presumption of innocence of the person the subject of the charge. The committee quoted the following passage from a European decision which will be considered shortly: “The presumption of innocence is binding not only on the court dealing with the case but also on other organs of the State.”

In responding to the committee’s submissions, the Attorney-General reiterated the position he has adopted in this proceeding, namely, that the presumption does not apply outside the context of criminal proceedings. In doing so, the Attorney-General adopted a broad view of criminal proceedings, saying that they were not limited to the trial, but would include pre-trial matters, such as bail, and post-trial matters, such as sentencing. Even assuming that the court can have regard to views expressed during such a committee meeting, it is not clear how the court is assisted by that particular committee debate. At best, it demonstrates that there are differing views as to the breadth of application of the presumption – a point that is already patently evident in this case from the contrary submissions advanced by Dr Sabet on the one hand, and the Board and Attorney-General on the other.

Hollingworth is spot on there. While that exchange might somehow be relevant to a debate about the meaning of that particular bill amending the Working With Children scheme, it couldn’t possibly cast light on the meaning of Charter s. 25(1), which was enacted two years earlier and wasn’t being amended by the new bill. So, she got something right!

Anyway, the latest SARC Alert Digest No 15 of 2008 contains a number of fairly interesting examples of this sort of human rights dialogue:

  • Major Crime Legislation Amendment Bill 2008: SARC, under its traditional term of reference about whether a bill ‘insufficiently subjects the exercise of legislative power to pariamentary scrutiny’, reviews statements of compatibility in terms of their helpfulness to Parliamentarians, who of course are all most concerned to ensure that the Charter is complied with. Two concerns were raised about this bill (which mostly concerns the scheme for coercive questioning, introduced to fight organised crime in 2004):
    • First, one provision extends the coercive questioning scheme to organised criminals who want to sexually exploit kids (rather than make money or acquire power). All very laudable, but it means that the compatibility of the whole scheme with the Charter is raised by the bill. SARC wrote to the Attorney-General expressing its concern about this gap in the SoC.
    • Second, another provision enacts a scheme for managing confidential information in proceedings to review coercive questioning orders (amongst other orders.) There’s been considerable controversay about such schemes overseas, because they allow a court to make findings on the basis of information that a party to the proceeding (the applicant for the review) hasn’t seen. The SoC does a Charter s. 7(2) analysis and simply declares that para (e) – on reasonably available alternatives – is satisfied. SARC lists three alternative comparative schemes and asks the Attorney-General why they aren’t reasonably available.

In Parliament yesterday, the shadow A-G made much play of these SARC comments, arguing that they show that the A-G doesn’t take the Charter seriously.

  • Relationships (Caring Relationships) Amendment Bill 2008: SARC here revisits an earlier concern it had about the original relationships bill: the restriction of registration to single people, i.e. those who aren’t in relationships with third parties, arguably contrary to Charter s. 8’s right to equal protection of the law without discrimination on the basis of marital status. The new scheme for registering caring relationships has the same limit, meaning e.g. that a married person caring for, say, a sibling, cannot register that caring relationship or get the benefit of the scheme in the Relationships Act for distributing property. SARC was concerned about the SoC’s short explanation of the limitation as reflecting the ‘purpose’ of allowing the registration of ‘primary relationships’ and its claim that multiple registrations would be unworkable. Was this purpose just a restatement of a discriminatory purpose? And why would multiple registrations be unworkable? SARC wrote to the Attorney-General to ask.
  • Assisted Reproductive Treatment Bill 2008: SARC’s original report on this bill had two queries, one concerning delayed commencement, the other concerning the compatibility of the publication ban on some surrogacy remarks with Charter s. 15. The Attorney-General has responded to the first of these concerns, but not the second. A pity, as the debate on the bill will (presumably) end today. SARC noted the pending response.
  • Coroners BIll 2008: SARC’s earlier report was concerned about the insertion of the new Coroners Court into Charter s. 4(1)(j)’s partial exemption from the obligations mandate. SARC wrote to the Attorney-General to find out what aspects of the court’s work will be exempted (as ‘non-administrative’) and what ‘exceptional circumstances’ there are for such an exemption. The A-G’s very interesting response was that virtually none of the court’s work will be exempted, except for body release decisions and contempt rulings. The latter, at least, will be Charter compatible because of Charter s. 32. So, no need to have any exceptional circmstances. This is the kind of response that will potentially be very handy in a court case.
  • Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008: This is a second go-around of dialogue. In its initial report, SARC raised a concern about the compatibility of a scheme for VCAT to place councillors charged with some criminal offences on a ‘leave of absence’ with Charter s. 25(1). The Minister’s response was to cite Sabet as grounds to say that Charter s. 25(1) doesn’t apply outside criminal courtrooms. SARC was Sabetted! SARC responded by noting that the scope issue wasn’t determined in Sabet and that parliamentarians would be assisted by an explanation of compatibility issues if Charter s. 25(1) did apply outside of courtrooms, a matter that presumably will have to be worked out by a court in the future. Alas, in today’s report, the Minister simply repeated his view about the scope of Charter s. 25(1) and refused to be engaged about ‘hypothetical future cases’. 
  • Primary Industries Legislation Amendment Bill 2008: The Minister for Agriculture gives a firm response to SARC’s earlier report on the compatibility of a reverse onus in a fisheries offence with Charter s. 25(1): its compatible, and a 2007 internal Charter review gave the reverse onus the thumbs up. Unfortunately, this wasn’t the question the Minister was asked about, which concerned an apparent flaw in the headings to the relevant provisions. SARC re-asked its question and, for good measure, expressed its surprise out the findings of the 2007 review.
  • Professional Boxing and Combat Sports Amendment Bill: Here’s a friendly exchange. Back in February(!), SARC raised a concern about the lack of reference to specific clauses in a SoC, which can make large complex SoCs impossible to follow (for lawyers and lay parliamentarians alike.) SARC raised just this concern about an earlier Animals Legislation bill and got a frosty response from the Agriculature Minister. This time, the Sports Minister wrote noting SARC’s views and saying that they’ve been taken into account in subsequent SoCs.

A mixed bag, but it’s all part of a lovely human rights dialogue process, which leaves no participants wholly unchanged. Apparently, some public servants who are lumbered with having to reply to SARC requests refer to these sorts of experiences as being SARCed. But perhaps these experiences will grow on them. Maybe, one day, someone will open a letter from the Committee and yell out: “I just had a SARCasm!”

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