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!