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: Continue reading

The Charter vs Parliament

nzeditorialOne of the core principles of the Charter is that it doesn’t affect Parliament’s powers. Those powers are preserved by the limited nature of the Charter’s operative provisions (limited to interpretation, and excluding the non-administrative capacities of parliament from the oblgiations mandate.) They are also made clear in three express savings provisions:

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.

32(3) This section does not affect the validity of- (a) an Act or provision of an Act that is incompatible with a human right; or (b) a subordinate instrument or provision of a subordinate instrument that is incompatible with a human right and is empowered to be so by the Act under which it is made.

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.

But could the Charter still be raised in court in an action against Parliament?

Petra Butler recently gave a talk at Melbourne Law School about just such an action in New Zealand. The recently booted-out Labour government caused a lot of controversy by passing a new Electoral Finance Act late last year. (See the pictured front-page editorial in the NZ Herald, featuring a gagged man, which was later the subject of a successful press council complaint.) An article in the latest issue of the Public Law Review outlines a number of concerns about the statute, notably its quite extreme limits on third-party advertising. Indeed, incoming PM Key has earlier announced that repealing the Act will be his first move upon his election. For NZBoRA groupies, a further controversy is how the NZ Attorney-General Michael Cullen fulfilled the following obligation under the NZBoRA:

7 Where any Bill is introduced into the House of Representatives, the Attorney-General shall,— (a) In the case of a Government Bill, on the introduction of that Bill; or (b) In any other case, as soon as practicable after the introduction of the Bill,— bring to the attention of the House of Representatives any provision in the Bill that appears to be inconsistent with any of the rights and freedoms contained in this Bill of Rights.

Cullent didn’t report. In accordance with the usual (and excellent) NZ practice, the legal advice he received on the issue is published, complete with the names of the advising lawyers: Val Sim, Crown Counsel and (a name now familiar to Charter groupies) Joanna Davidson, as peer reviewer. The advice described the freedom of expression views as ‘finely balanced’ but deferred to Parliament’s ‘wide margin of appreciation’. Andrew Geddis, in the PLR, casts this ‘vet’ as ‘overly deferential to the government’s policy preferences’. 

Somewhat astonishingly, an action was commenced in New Zealand’s High Court seeking a declaration that the Attorney-General was in breach of s7 of NZBoRA. The action was commenced before the Bill was passed, but the High Court declined the request for urgency. By the time the action was heard, the Bill had passed, but declarations were sought on the basis that a declaration should be made about the past breach and that s7 required the Attorney-General to recommend the re-introduction of the bill accompanied by an appropriate s7 statement. The Attorney-General responded with a request to strike out the application as an interference with parliament and as an attempt to seek an unavailable declaration remedy on a moot point. In Boscawen v Attorney-General [2008] NZHC 949, a judge of the High Court agreed to the striking out. Denis Clifford’s key finding was that:

when the Attorney-General responds to his duty under s 7 of NZBORA and determines ­ as the case may be ­ that there are or there are not inconsistencies between a bill and the rights and freedoms contained in NZBORA, and therefore determines whether to draw or not draw such inconsistencies to the attention of the House, the Attorney-General performs a function which falls within the proceedings of Parliament. I think, therefore, that questions of the privilege, whether described in terms of non-interference in the internal proceedings of Parliament, or as questions of Article 9 [of the Bill of Rights 1689] privilege …  mean that judicial review is not available.

According to Butler, the striking out has been appealed to the NZCA, but it would be quite a surprise if it reaches a different conclusion.

The general principles cited in Boscawen are also part of Victorian law. So, would they apply to the equivalent provision of the Charter?:

28(1) A member of Parliament who proposes to introduce a Bill into a House of Parliament must cause a statement of compatibility to be prepared in respect of that Bill.

(2) A member of Parliament who introduces a Bill into a House of Parliament, or another member acting on his or her behalf, must cause the statement of compatibility prepared under subsection (1) to be laid before the House of Parliament into which the Bill is introduced before giving his or her second reading speech on the Bill.

(3) A statement of compatibility must state- (a) whether, in the member’s opinion, the Bill is compatible with human rights and, if so, how it is compatible; and (b) if, in the member’s opinion, any part of the Bill is incompatible with human rights, the nature and extent of the incompatibility.

As is well known, Charter s. 28 differs from NZBoRA s7. In NZ, statements must only be made if the A-G thinks a bill is incompatible. By contrast, the Charter requires a statement for every bill. This strikes me as a potentially significant difference, because the making of a statement, as opposed to its content, is not a question of legal judgment about the human rights content of a bill. Continue reading

The consequences of Charter s. 28(2)

The first ever attempt to use the Charter as a point of order in Victoria’s parliament, once again a new use of the Charter prompted by the abortion bill:

Mr Kavanagh — On a point of order, President, the bill mentioned is out of order. The bill was not introduced in this house or in the other house with a statement of compliance with the Charter of Human Rights and Responsibilities. A statement of compliance is required under the Charter of Human Rights and Responsibilities Act before any bill with implications for rights in the charter can be considered by either house of this Parliament.

The minister in the other house and the responsible minister in this house have sought to rely on section 48 of the charter to avoid the need to produce a statement of compatibility. Legal opinion from legal firm Phillips Fox, which opinion is in the public domain, concludes that the minister was mistaken in so relying on that exclusion. Section 48 states in part: Nothing in this charter affects any law applicable to abortion or child destruction … But the bill affects much more than simply abortion and child destruction. The bill also affects a range of other rights that are detailed in the act, including guarantees of equality and non-discrimination under section 8(3) of the charter and issues of rights against unlawful or arbitrary interference with privacy under section 13(a) of the charter. The bill affects freedom of thought, conscience, religion and belief guaranteed under section 14 of the charter. There are also issues about whether the bill raises new criminal offences.

This point canvasses the question of the scope of Charter s. 48, citing not only the legal advice about clause 8 but also, it seems, SARC’s concern about amendments to the ‘serious injury’ offences in clause 10. If these concerns are right, then Charter s. 28(2) has been breached:

28(2) A member of Parliament who introduces a Bill into a House of Parliament, or another member acting on his or her behalf, must cause the statement of compatibility prepared under subsection (1) to be laid before the House of Parliament into which the Bill is introduced before giving his or her second reading speech on the Bill.

(It’s possible that Charter s. 28(1) was also breached, but that depends on whether or not a statement was actually prepared for the Abortion Law Reform Bill.)

But what is the consequence of a breach? As the legal advice correctly pointed out, the Charter only spells out the (non-)consequences if the Bill is passed:

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.

So, what happens before the Bill is passed? Kavanagh argues:

A required statement was not put before either house and therefore consideration of this bill by this house is out of order. I have several copies of the legal opinion from Phillips Fox for the benefit of members of the house if they so desire; that opinion completely supports my contention.

But the point was rejected:

The PRESIDENT — Order! In response both to the point of order and Mr Theophanous’s rebuttal and to Mr Kavanagh’s further point, I need to remind the house that I adjudicate on matters contained within the standing orders. The issue as to whether or not Mr Kavanagh is correct is a matter for the house. I must say it is a complicated and interesting point of order that Mr Kavanagh has raised, but I am confident in the advice I have been given that I have no authority to rule on that matter; it is simply a matter for the house. Any questions relating to the validity of the act are simply matters for the courts.

The relevant standing order appears to be:

14.02 A Bill not prepared according to the Standing Orders and practices of the Council will be ordered to be withdrawn by the President.

I don’t know enough about the law of parliamentary procedure to know if Kavanagh is correct that the President that compliance with Charter s. 28(2) isn’t part of the ‘Standing Orders and practices’ of the Council. (The incorporation of statements of compatibility into Hansard is part of the sessional orders of the Legislative Assembly, but weirdly not of the Legislative Council; however, the Council seems to follow the Assembly’s ‘practice’.) But, if true, it raises what seems to be a significant gap in those standing orders or practices. Continue reading

The right to a parliamentary debate

The abortion debate yields another first: the first (to my knowledge) published legal advice on the Charter as part of a political debate. Such advices are a regular part of the landscape in other jurisdictions with human rights laws, so it’s surely a positive development. The advice is from Phillips Fox to Catholic Health Australia Inc and is written (or signed) by partners Nigel Preston and Rachel Walsh. So, did CHA get their money’s worth?

The major claim of the advice is that there should have been a statement of compatibility with respect to clause 8. The problem is Charter s. 48:

48 Nothing in this Charter affects any law applicable to abortion or child destruction, whether before or after the commencement of Part 2.

Preston and Walsh’s argument is:

Section 48 is a savings provision, intended to protect laws concerning abortion from being interfered with by or challenged under the Charter, whenever they came into effect. In particular, section 48 was intended to protect the common law on abortion from challenge under section 9 of the Charter…  Indeed, an early exposure draft of the Charter contained a caveat to the Right to Life provision that it applied only after birth.

Insofar as the Bill is concerned with legalising or decriminalising aspects of abortion, it is correct to say that those provisions are not subject to the legislative processes established by the Charter. However, the problem is that this Bill affects rights other than those concerned with the decriminalisation of abortion. Clause 8 of the Bill contains provisions that go beyond the remit of section 48 of the Charter, and so should be subject to the Charter’s process for scrutinising the Bill for compatibility with human rights and to other Charter provisions (including the interpretive obligation in section 32).

Whereas SARC, in its report, focussed on the words ‘law’, ‘applicable’ and ‘affects’, this argument centres on Charter s. 48’s alleged purpose, tying it exclusively to the ‘legalising or decrininalising aspects’ of abortion and child destruction. I’m not so sure that the criminal law angle on abortion can be so readily separated from the medical law angle – or that the purpose of Charter s. 48 can be precisely discerned – but there’s no doubt that the scope of Charter s. 48 is quite a quandary.

So, what are the consequences if parts of the bill are outside Charter s. 48’s scope? That depends on these two sections:

28(1) A member of Parliament who proposes to introduce a Bill into a House of Parliament must cause a statement of compatibility to be prepared in respect of that Bill.

(2) A member of Parliament who introduces a Bill into a House of Parliament, or another member acting on his or her behalf, must cause the statement of compatibility prepared under subsection (1) to be laid before the House of Parliament into which the Bill is introduced before giving his or her second reading speech on the Bill.

(3) A statement of compatibility must state- (a) whether, in the member’s opinion, the Bill is compatible with human rights and, if so, how it is compatible; and (b) if, in the member’s opinion, any part of the Bill is incompatible with human rights, the nature and extent of the incompatibility.

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.

Preston and Walsh say:

You may be confronted by an argument that the failure to comply with the Charter has no consequences. The basis of the argument is that the Charter requires a process of consideration of compatibility with human rights to be followed at the time of second reading of a Bill, but the Act which flows from the Bill is not invalidated if that process is not followed…. To our thinking, section 29 of the Charter is not the point in this case. The Bill is not yet an Act. This section is designed to remedy a mistake in the processes leading to an Act. This section is not a mechanism to avoid consideration of the Charter in relation to any Bill where the Charter should be considered.

That’s certainly true. But it does mean that this legal advice is actually about the legality of non-justiciable parliamentary process. Anyway, Preston and Walsh go on:

The central point is that the human rights protected by the Charter should have been considered at the time when this Bill was introduced into Parliament. The clear objective of the Charter is to facilitate a consideration of those human rights which are protected by the Charter in the debate on this Bill. The wrongful exclusion of the Charter from debate in relation to this Bill has cut short a proper consideration of the human rights which may be affected by the Bill. According to the second reading speech, the Charter was intended to promote a ‘dialogue model of human rights’, which ‘seeks to address human rights issues though a formal dialogue’ between branches of government. The exclusion of the Charter from debate contradicts this intended goal. It is not for us to say what might have happened if the Charter had been considered in Parliamentary debate. It is not for us to conjecture whether the Bill would have been amended, or not. This is a matter for Parliament, but more particularly, it is a matter for a properly informed Parliament.

Speaking of the ‘exclusion’ of the Charter from parliamentary debate is a little extreme. No-one’s stopping the Charter being mentioned there or elsewhere. All that’s missing is the statement of compatibility. (And, ahem, the Parliament was ‘informed’ (properly or otherwise) by SARC’s report. SARC suggested a similar conclusion on the possible requirement of a statement of compatibility, but by a different argument: that Charter s. 48 didn’t have any impact at all on Charter s. 28, because it only affects laws, not bills.)

The advice then goes on to suggest four rights that clause 8 limits: Continue reading

Britain learns from Victoria

Victoria’s Charter clearly owes more to Britain’s Human Rights Act than any other (domestic) rights document. So, it’s interesting that Britain is looking to Victoria in its examination of whether it should introduce a new British Bill of Rights. The UK Joint Committee on Human Rights recently issued a report on its preferred model, which included the following references to Victoria:

  • The report cited Victoria (alongside other Australian jurisdictions) as a rebuttal of the claim that a bill of rights can only emerge following a crisis (like the American or French Revolutions, or Apartheid.) The Australian statutes are actually no evidence of this, as the rights they protect (like the UK’s own Human Rights Act) are almost exclusively drawn from international treaties that were developed in the aftermath of World War Two. Canada, also cited by the Report, is a better example (although it did come in the midst of the Quebec seccessionist crisis.)
  • The report endorsed Victoria’s approach of placing ‘the legislature central to the process of human rights protection’. The JCHR’s skeleton draft bill indeed copies Charter s. 28’s requirement that the government issue a detailed statement of compatibility stating how a bill is compatible with human rights (which it noted was inspired by the JCHR’s own experience.) Its version of Charter s. 28 is enhanced by a requirement for a human rights ‘impact statement’ and the extension of the requirement to statutory instruments and orders in council. On the other hand, the draft bill contains no provision equivalent to Charter s. 30 requiring a JCHR report on each bill, presumably reflecting its own decision not to provide a comprehensive scrutiny function.
  • The report endorsed Victoria’s requirement in Chater s. 37 that the government make a formal response to Parliament in the event of a declaration of incompatibility. However, its draft expands on the requirement, setting a three month deadline for an initial response, a six month deadline for a remedial response, a requirement for a parliamentary motion in response to both statements and a power for a court to judge the remedial action. Needless to say, the JCHR draft doesn’t use Victoria’s dreadful ‘declaration of inconsistent interpretation’ terminology.
  • The report adopted Victoria’s requirement of statutory reviews, replacing the four-year and eight-year reviews by the Attorney-General mandated by Charter ss. 44 and 45 with a single five-year review performed by an ‘independent panel’.
  • The report wholeheartedly endorsed the consultative process that led to the adoption of Victoria’s Charter, ‘in particular its focus on public engagement’.

All up, a very positive verdict on the Charter. That being said, the JCHR folks seem to follow the ‘if you don’t have anything nice to say, don’t say it’ approach, at least as regards comparative lessons of the negative variety. Notably, the JCHR wholly rejected the government’s proposal for a British Bill of Rights and Duties: (BORAD!) Continue reading

The Charter vs annoying laws

Rachel Evans and Amber Pike are annoying people. Or, at least, they are worried that they may annoy some people in the next couple of days. They’re right to worry. They plan to speak to (and debate and leaflet and t-shirt and megaphone(!)) people about such thrilling topics as the Pope and his teachings on sexuality; same-sex marriage; abortion in Australia and abroad; Australia’s role in World Youth Day; and anti-gay education. Doubtless, lots of participants in World Youth Day have similar plans to talk to everyone about these exact same topics and will be similarly annoying.

But Evans and Pike differ from the World Youth in at least two ways: First, they’ll be handing out condoms; indeed, Pike will wear (a ‘giant’) one. Second, they – but not the participants – risk being dealt with under this clause of the World Youth Day Regulation 2008:

7(1) An authorised person may direct a person within a World Youth Day declared area to cease engaging in conduct that:… (b) causes annoyance or inconvenience to participants in a World Youth Day Event…

Thanks to the Federal Court, they no longer have to worry. Today, in Evans v State of NSW [2008] FCAFC 130, the Court issued this declaration:

[T]he Court will make a declaration that cl 7(1)(b) is invalid to the extent to which it is applied to conduct which causes annoyance to participants in World Youth Day events.

Unlike a declaration of inconsistent interpretation under the Charter, this particular declaration has legal effect; no-one can now require Pike and Evans to stop doing something just because they are annoying (although Pike and Evans will still have to watch out for other restrictions, like threatening someone’s safety or ‘inconveniencing’ a World Youth, not to mention regular criminal law.) This result was reached by ordinary statutory construction, albeit informed by the Constitution’s freedom of political communication.

Depending on what they think of the (pretty unpopular) regulation in question, opponents of human rights statutes will argue that this case is either an example of the dangers of such statutes or proof of why they are unnecessary. They may well be right, of course. But the case wouldn’t necessarily have been the same if the regulation in question was a Victorian regulation and hence subject to the Charter. Victoria has some annoying laws too. Here are some similarities and differences about the case would have been resolved if clause 7 had been passed south of the Murray:

Continue reading

Revisions to statements of compatibility

A new approach to parliamentary human rights dialogue has emerged recently: the revision of statements of compatibility following reports by SARC. The only Charter provision that binds members of parliament is Charter s. 28:

(1) A member of Parliament who proposes to introduce a Bill into a House of Parliament must cause a statement of compatibility to be prepared in respect of that Bill.

(2) A member of Parliament who introduces a Bill into a House of Parliament, or another member acting on his or her behalf, must cause the statement of compatibility prepared under subsection (1) to be laid before the House of Parliament into which the Bill is introduced before giving his or her second reading speech on the Bill.

This provision is a little ambiguous on whether or not a statement of compatibility has to be ‘laid before’ both of Victoria’s houses of parliament. On balance, I would have though that it only required a SoC before the first house of parliament (hence all the ‘introduces’ language), but the practice to date has to be to table the SoC in both.

Note that the SoC doesn’t have to be read out, which is a lucky thing for all involved. But Parliament has adopted the practice – not required by the Charter – of incorporating the statement into Hansard, as a change to its sessional orders, explained at the time as follows:

We are endeavouring to have a mechanism to enable statements of compatibility to be incorporated in Hansard in a similar way the second-reading speeches are placed on the Hansard record. The context of how this would work is that at some stage during the presentation of the second-reading debate the sponsoring minister would make it available. The option we could have undertaken was simply to have a table and members would have had access to it on that day and subsequent days when each piece of legislation was being debated, but the intent here is not only for that procedure to be made available to members of the house on the day of its debate, but for it to be incorporated into Hansard so that those looking at the procedures for each passage of legislation could also see not only the second-reading speech and the second-reading debate but also the statement of compatibility. This goes a long way towards putting into effect this government’s decision to have a charter of human rights and to require statements of compatibility. his will be achieved through a very simple machinery of government, a sessional order, that will be put into effect. I would expect it would receive widespread support.

But if the SoC gets tabled twice, does it have to be the same each time? Until recently, it always has been.

But last session, the Legislative Council’s version of the SoC to the Justice Legislation Amendment (Sex Offences Procedures) Bill 2008 differed from the one tabled in the Legislative Assembly. SARC, in its report on that bill, had complained about their being too many typos or errors in it (including a confusion between the Sex Offences Registration Act and the Serious Sex Offenders Monitoring Act, two very different beasts.)  SARC raised the concern with the Attorney-General, who responded:

You have drawn my attention to the Committee’s report (Alert Digest No. 4 of 2008) in which it identified some typographical errors in the Statement of Compatibility. I thank the Committee for bringing these issues to my attention. The typographical errors have been amended and a revised version will be tabled in the Legislative Council and Hansard has also been notified of the changes.

And so it was.

What happened this session was much more dramatic. Continue reading