Rob Hulls’s most important contribution to Victorian human rights law, after the Charter itself, is his promulgation, on the last Friday before the last Christmas before the Charter came into full operation, of regulations exempting Victoria’s three parole boards from the definition of a public authority and, hence, from the Charter’s conduct mandate:
38(1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.
To my knowledge, the decision has only been mentioned three times by the government: (1) by VEOHRC in its annual report, where one of its few negative comments was the lack of transparency in the decision; (2) by Hulls at an estimates hearing, where he attributed it to concerns about the parole boards having to give natural justice, and (3) by the current chair of the Adult Parole Board in its annual report, where it applauded the decision as a ‘prudent and responsible step’.
The exemption is due to expire in 15 days. Here’s what Hulls said in June about his decision as to whether or not to extend the exemption:
They will have to put to me not only a very strong argument as to why they should be further exempted for a period of time but also, if they were not exempted, what resources they believe they would require to fully adhere to the charter. It may not be just a question of resources; that is true. It may well be, on the decisions they make and the timeliness of those decisions that they are required to make when they are dealing with people’s liberty — they do not give reasons for their decisions, as you are probably aware — as they have initially put to me, that it is important that they continue to operate in that way. As judges they admit that in all likelihood they are denying people natural justice. But that has always been how the parole board operates and if you change that, and you put in place a whole range of appeal rights and they have to give voluminous reasons for decisions and the like, it would tie down the work of the parole boards and, in their view, they could well become unworkable. That is their argument. I want to see for myself and get a better feel for the way the boards operate and I will make a decision in due course. that this was done for a period.
And here’s what I said about that same decision:
Time for some hyperbole: when someone writes a history of the Charter a few decades from now, I think that Hull’s decision, whichever way it goes, will feature as a key decision on the path to the Charter’s ultimate fate, whatever that is.
The relevant Charter provision is this one:
46(1) The Governor in Council may make regulations for or with respect to any matter or thing required or permitted by this Charter to be prescribed or necessary to be prescribed to give effect to this Charter.
(2) Without limiting subsection (1), the Governor in Council may make regulations for or with respect to- (a) prescribing entities to be public authorities for the purposes of this Charter; and (b) prescribing entities not to be public authorities for the purposes of this Charter;…
Arguably, though, Hulls’s decision to promulgate the regulations or not is itself subject to the very conduct mandate that Hulls can exempt any public authority (himself included, presumably) from.
Today, a full four days earlier than I was expecting it, Rob Hulls committed to his choice:
Notice is hereby given under Section 17(2) of the Subordinate Legislation Act 1994 of the making of the following Statutory Rules: …
163. Statutory Rule: Charter of Human Rights and Responsibilities (Public Authorities) Interim Regulations 2008
Authorising Act: Charter of Human Rights and Responsibilities Act 2006
Date of making: 16 December 2008
And here’s his choice: