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. 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