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

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

SARC in short

I don’t usually cover reports of the Scrutiny of Acts and Regulations Committee in detail on this blog. Given my job advising SARC on ‘human rights’ (i.e. the Charter), it’d be invidious to engage in the kind of detailed critique I mete out to judgments and the like. Criticism of the reports (which are the Committee’s, and may or may not be based on drafts I prepare) would either be a breach of parliamentary privilege or some sort of weird self-flagellation. Given the role SARC has taken on providing some scrutiny of Statements of Compatibility, laying into them is also tricky. But that’s a pity, as SoCs and SARC Charter reports form the overwhelming majority of Charter analysis out there at the moment. But I do try to note developments in the parliamentary dialogue, and there are a number of interesting ones in Committee’s final Alert Digest for the year.

SARC’s role under the Charter is set out in its very own section:

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.

But what is a ‘report’? Charter s. 30 says what the report has to be about, but it is silent as to the form of the report. Finding an appropriate style for Charter reports is the trickiest part of my job, much tougher than reading bills and researching the wide world of human rights law. The report has to be simultaneously: (a) accessible to lay parliamentarians; (b) defensible in its legal analysis; (c) parliamentary in its language; (d) faithful to Charter s. 30; and (e) as brief as possible. A further foible – familiar to e-mail users – is the difficulty of getting the tone right, with what are, in a sense, critiques of others’ work. These various priorities, as they say in sentencing judgments, ‘pull in different directions’. Given SARC’s tight timelines, it’s impossible to reinvent the stylistic wheel for each issue. But, in these early years, it’s also important not to get trapped by an initial approach.

When the Charter first commenced, Charter commentary by SARC appeared interspersed with the general summary and traditional commentary on particular provisions. That changed in August or so (around the time I started advising), with the adoption of a separate Charter report at the end of the regular report (reflecting (arguably) the terms of Charter s. 30 and the need for the Alert Digest to be conveniently compiled from drafts by two separate legal advisers). A further change in May this year involved dropping the sections explaining why SARC thought a bill was compatible (often just brief summaries of the Statements of Compatibility), again arguably reflecting the terms of Charter s. 30, and also adopting a less wordy style for the report on incompatibility (with less “The Committee additionally notes…” language), in an attempt to ensure that key human rights concerns aren’t lost in a morass of rights-talk dross (a problem that also arises with SoCs.)

Anyway, a further change, appearing in Alert Digest No. 15 of 2008, is the adoption of some stylistic techniques of the UK Joint Committee on Human Rights. (The JCHR isn’t a scrutiny committee, but the problem of communicating human rights analysis to a lay audience remains.) The new feature is the use of short snappy summaries. Here are the ones from today’s Digest: 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

SARC on dust, death and dodgy fish

The Scrutiny of Acts and Regulations Committee’s 13th Alert Digest for the year (considering a record number of bills, at least in recent years) highlights three Charter issues:

  • Asbestos Diseases Compensation Bill: SARC queries whether the new procedures designed to take account of the lengthy latency and fatal result of asbestos diseases should be extended to cover non-asbestos diseases with similar charcateristics, pursuant to the Charter right to equal and effective protection against (impairment) discrimination.
  • Coroners BIll: SARC expresses its concern that the Bill will amend the Charter’s definition of ‘court’ to cover the newly created Coroners Court, thus bringing the new body within the Charter’s partial exemption for courts and tribunals from the conduct mandate (despite the new body having no role in either developing the common law or resolving private disputes.) SARC will ask the Attorney-General what the (exempt) non-administrative capacities of the Coroners Court would be and whether there are any ‘exceptional circumstances’ (a la the override provision) that justify a permanent narrowing of the Charter’s protection for human rights.
  • Primary Industries Legislation Amendment BIll: SARC commends an excellent statement of compatibility, but also has (what, for it, are) strong words about one provision, which significantly extends an existing offence of selling or possessing an illegally taken fish to cover selling or possessing a fish that has ever been illegally ‘dealt with’ under any Australian law. ‘Dealt with’ includes just about anything anyone ever does with the fish, including transporting and possessing it.  SARC has two concerns: First, that the existing offence includes a reverse onus on the issue of whether the defendant knew or ought to have known of the illegality. This is especially concerning, because the offence applies to consumers, not just commercial operators, and it carries a potential six month sentence. Second, the headings of both the existing provision and the amendment only refer to sale, not possession, so people who plan to possess a fish will have to read the text of the provision to know that they risk prison unless they can prove that they didn’t know about any illegal dealings. The strong words:

The Committee therefore considers that clause 68 may be incompatible with the Charter.

 SARC referred the issue of compatibility with Charter s. 25(1) to parliament and will write to the Miister about the headings (and the otherwise excellent statement of compatibility.)

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

SARC on prisoners’ civil claims

The Victorian Parliament is currently considering a bill to quarantine (for twleve months) the money prisoners receive from the state pursuant to claims for civil wrongs. The Second Reading Speech explained the purpose of the Bill as follows:

The government intends to address the situation where an offender receives an award of damages from the state and therefore has a much improved financial situation. Victims can then choose to take advantage of that improved financial situation by taking their own legal action in the knowledge that there are assets that may satisfy a successful judgement. The government is aware of the perceived inequity when offenders are seen to use the law for their own purposes through pursuing compensation arising from their circumstances in custody. This bill represents a step in addressing that inequity.

The Bill has its origins in a political debate in New Zealand about claims being made under its Bill of Rights Act (which, in contrast to the Charter, creates both a  cause of action for breach of human rights and a remedy of damages.) Challenges to the NZ Act have to date failed on procedural grounds.

The Human Rights Law Resources Centre made a lengthy submission to SARC on the Bill:

The Centre has grave concerns about the impact that the Bill would have on the following human rights. The rights listed below are protected under the Charter at the sections indicated.

(a) The right to recognition and equality before the law (section 8).

(b) The right to privacy and reputation (section 13).

(c) The right to protection of families and children (section 17).

(d) Property rights (section 20).

(e) The right to humane treatment when deprived of liberty (section 22).

(f) The right to fair hearing, including the right to equal access to courts (section 24).

(g) The right to an effective remedy (which is fundamental to the protection of all human rights).

…The Centre considers the premise of the Bill to be incompatible with the human rights outlined above… , which are rights that the Victorian government commendably seeks to protect and promote in the Charter. As such, the Centre recommends that the Bill be withdrawn in its entirety.

SARC’s own report on the Bill was tabled in Parliament today. It focuses on a section that requires the fact that a named prisoner has been successful in a claim to be advertised in Victorian and national newspapers:

The Committee observes that the information contained in the notice – that the prisoner has been a victim of a civil wrong committed by the state and is the recipient of an award of more than $10,000 – is potentially sensitive information, particularly given the vulnerabilities of many prisoners. The Committee also observes that this requirement is a mandatory one regardless of the circumstances and, in particular, overrides any confidentiality clause contained in an agreement between the state and the prisoner (see new section 104ZB.) The Committee therefore considers that new section 104Y may engage prisoners’ Charter right against arbitrary interferences in their privacy.

The Committee was also concerned that the requirement may override contrary court orders and laws.

SARC’s report also raises Charter concerns about the exemption of some offenders from the new County Court Koori division and the reverse onus defence of due diligence in an offence relating to factory openings on ANZAC Day.