The consequences of Charter s. 30

Since 1st January 2007, every bill introduced into the Victorian Parliament except one (the Abortion Law Reform Bill) has been accompanied by a Statement of Compatibility. And every bill has been the subject of a report from SARC. Every bill, that is, except two bills introduced into Parliament last week, which have already passed and will, presumably, very soon be Acts.

One bill is the Salaries Legislation Amendment (Salary Sacrifice) Bill 2008, which got its first, second and third readings in both chambers on Tuesday. The bill’s purpose is to allow parliamentarians and various constitutional officers to salary sacrifice. That is basically a tax dodge, whereby part of your pre-tax income is used to buy something or contribute to super. I’ve never understood why the tax office allows this. Anyway, the legal complication is that it involves, at least technically, a salary reduction, hence the need for clarifying legislation. It’s good to see that Parliament was so concerned about the ability of judges to salary sacrifice that they rushed through the legislation. But. ‘reducing’ judicial salaries is always tricky thing. (Indeed, on a complete side point, salaries full stop are a tricky thing. Hillary Clinton’s appointment as Secretary of State has raised US constitutional concerns because of the ’emoluments’ clause, which bars sitting congresspersons from being appointed to public offices that have had a pay rise during their term. The job of Secretary of State had a cost-0f-living pay increase earlier this year. The proposed solution – pioneered by Nixon! – of reducing the salary before Clinton takes office hasn’t satisfied all the constitutional law experts.)

The other bill is one I recently posted about, fixing the ‘loophole’ in the taxi driver registration scheme for people like XFJ who were acquitted on insanity grounds prior to 1997. It passed yesterday, but not before the Greens bemoaned the lack of a report from SARC:

The second issue is that this bill, which raises important questions of the Charter of Human Rights and Responsibilities — questions that require considered thought, pondering, research and consultation with experts — has not been to the Scrutiny of Acts and Regulations Committee.

The reason for the rush, as the government candidly admitted, was the coverage of XFJ in the Herald Sun. In the end, the Greens were satisfied with a reference to the Council’s Legislation Committee, which immediately considered the bill and approved it. 

The result of these events is, arguably, a breach of a provision of the Charter:

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.

The use of the present tense arguably implies that the report must occur while a bill is a bill. That also makes sense as a matter of policy, as the whole point of SARC scrutiny is to advise parliament in its deliberations on whether or not to enact a bill. All too late now.

So, what are the consequences of a breach of Charter s. 30? This issue is the subject of another curious drafting quirk in the Charter. Every other parliamentary event required by the Charter is the subject of an express savings clause providing that a failure to comply with it has no impact on the validity of a law:

29 A failure to comply with section 28 in relation to any Bill that becomes an Act does not affect the validity, operation or enforcement of that Act or of any other statutory provision.

31(9) A failure to comply with subsection (3) or (5) in relation to any Bill that becomes an Act does not affect the validity, operation or enforcement of that Act or of any other statutory provision.

36(5) A declaration of inconsistent interpretation does not- (a) affect in any way the validity, operation or enforcement of the statutory provision in respect of which the declaration was made; or (b) create in any person any legal right or give rise to any civil cause of action.

So, statements of compatibility, the procedures for override declarations and the procedures following declarations of inconsistent interpretation can all be breached without any possible consequences for validity. Does the absence of such a provision for SARC reports imply that their absence might have consequences for validity or at last found a ‘legal right’ or a ‘civil cause of action’? Oooh. It’s hard to see why SARC’s reports should somehow be more important than these other processes, of course. But maybe it’s another fun Charter argument that XFJ could raise when the question of his accreditation comes up for further litigation. See my earlier post on Charter claims involving Parliametary breaches of the Charter.

That being said, there is a mechanism that would seem to permit SARC to report on both of these statutes eventually. Charter s. 47 introduced a number of consequential amendments into other legislation, including this provision in the Parliamentary Committees Act 2003:

17 The functions of the Scrutiny of Acts and Regulations Committee are-… (c) to consider any Act that was not considered under paragraph (a) or (b) when it was a Bill- (i) within 30 days immediately after the first appointment of members of the Committee after the commencement of each Parliament; or (ii) within 10 sitting days after the Act receives Royal Assent– whichever is the later, and to report to the Parliament with respect to that Act or any matter referred to in those paragraphs.

This provision actually allows the Scrutiny of Acts and Regulations Committee to actually report on an Act. SARC has reported on Acts before, but only as the result of parliamentary referrals. It’s never actually applied its scrutiny function to an Act, at least until now. A s. 17(c)  report could include the Charter incompatibility ground in s. 17(a)(viii), which, of course, is very similar to a Charter s. 30 report. However, unlike a Charter s. 30 report, it can’t possibly affect the decision to enact the bill (or, I assume, its latter intepretation by a court.) If it’s part of the human rights dialogue at all, it’s a pretty attenuated part.

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