Rights, Responsibilities and Respect

The Report of the Human Rights Consultation Committee

Chapter 4

Chapter 4 - Institutions of Government

4.1 Summary

Each of our main institutions of government – the executive, Parliament and the courts – has a vital role to play in protecting the human rights of the Victorian people.

The executive, which includes all government ministers and their departments, has an important function in ensuring that human rights issues are considered in the development and implementation of government policy and legislation. Government departments can play a key role in the early identification of issues before Cabinet makes decisions that may give rise to human rights concerns.

The community has told us that all new law and policy should be considered in light of fundamental human rights. The Committee believes that a specialist unit in the Department of Justice could assist in advising government departments on the human rights implications of policy and legislative proposals. The unit would also undertake expert vetting of all legislation to assess its compatibility with the Charter of Human Rights and Responsibilities.

To assist Cabinet in its consideration of the human rights implications of the policy and legislative proposals that come before it, departments should be required to prepare Human Rights Impact Statements when proposing new policy and legislation. These are statements that identify and analyse the human rights impacts of policy and legislative proposals.

The Committee believes that when a new Bill is presented to Parliament, the Attorney-General should provide a statement to Parliament indicating an opinion on whether the Bill is compatible with the Charter. However, to preserve Parliamentary sovereignty, the Committee believes that Parliament should still be able to pass laws even if no Statement of Compatibility has been made or, in exceptional circumstances, by use of an express override clause that allows Parliament to expressly declare that the law will operate even though it is incompatible with the Charter.

Parliamentary committees also play an important role in facilitating broader parliamentary and public debate of proposed laws, and can further assist the Parliament in assessing the human rights implications of new laws. The Committee believes that it is appropriate for Parliament’s Scrutiny of Acts and Regulations Committee, renamed as the Human Rights Scrutiny Committee, to further examine Bills for human rights compliance.

The Charter should require the courts to interpret legislation in a way that is compatible with human rights and, without enabling them to strike down legislation, should allow them to declare certain laws to be incompatible with the Charter. The effect of a Declaration of Incompatibility would be to require further consideration of the issue by the executive and Parliament, and for Parliament to formally respond either by changing the law or deciding that the law will remain the same. This process would mean that Parliament retains the final say on legislation.

This model would be based on the idea of ‘dialogue’ between the community and the different arms of government. It would ensure that human rights are considered at the various levels of government, including in policy development, Cabinet decision-making, legislative drafting, parliamentary debate and judicial interpretation.

4.2 All arms of government have a role to play

There was general recognition in submissions to the Committee that all institutions of government, in particular Parliament, the courts and the executive, have a role to play in protecting and promoting human rights. (1)

In their joint submission, the Victorian Council of Social Service and the Federation of Community Legal Centres (Victoria) stressed both the practical and symbolic importance of embedding human rights in all parts of government:

The government has the responsibility to provide leadership, and institutions of government should be seen to be taking the first step towards better protecting human rights. The government is seen as powerful and there is much symbolic value in the government coming out as the leader on this issue. (Submission 1942)

While this chapter focuses on the three main institutions of our democratic system, the Committee recognises that there may be other government institutions that would have a role in protecting and promoting human rights. In particular, the Committee acknowledges the important role that local government would play in the promotion and implementation of the Charter within the community. The role of local councils is addressed in Chapter 3.

The Committee also acknowledges the role of existing government bodies in protecting and promoting human rights. Organisations such as the Equal Opportunity Commission Victoria, the Privacy Commissioner and the Ombudsman may have particular roles in monitoring and enforcing the Charter. The Committee also believes that there would be a role for a Victorian Human Rights Commissioner under the Charter. These issues are discussed in Chapter 6.

In focusing on the three main institutions of government, the Committee recognises the importance of developing a model where each institution has an important and identifiable role in protecting human rights, but is also engaged in a meaningful dialogue with the other two arms of government to ensure that the best human rights outcomes are achieved.

The Committee believes that by infusing human rights considerations at all levels of government, and in the policy and law making process, there is a greater prospect of preventing laws and policies which are incompatible with human rights.

4.3 What should be the role of the executive?

Submissions to the Committee expressed a range of views as to the role to be played by the executive in protecting human rights, including:

• having a robust pre-legislative scrutiny function to ensure that all new legislation is compliant with the Charter;
• the preparation of a Human Rights Impact Statement to be considered by Cabinet in regard to proposed policy and legislation;
• requiring that the relevant minister or the Attorney-General make a Statement of Compatibility in respect of new legislation introduced in Parliament, stating whether a Bill is consistent with human rights; and
• ensuring that all government departments comply with the Charter in respect of all of their activities, including their policies, decisions, practices and service delivery functions, and that departments report annually their human rights performance in respect of their functions.

4.3.1 Ensuring legislation and policy meet Charter standards

The Statement of Intent indicates that the Victorian Government is supportive of procedures in the United Kingdom, New Zealand and the Australian Capital Territory (ACT) whereby legislation introduced into Parliament is certified as complying with the nation’s human rights obligations. As the Statement asserts, this can ensure that ministers and their departments consider the impact of proposed legislation and policies on human rights before they become law or come into operation.

There was strong support in the submissions for a process that ensures that new legislation is compatible with the Charter. In particular, it was argued that all government departments should have to consider the impact on human rights of any new policies or legislation and that such a process should commence at the earliest stages of a policy exercise. This would ensure that human rights compatibility remained a key theme throughout policy development and the legislative drafting process, and that any human rights issues could be addressed at the earliest opportunity. (2) As Marg D’Arcy explained:

That means that all government agencies, departments and organisations should be required to consider the impact on human rights of any new polices or legislation which is introduced. (Submission 134).

There are two interrelated ways in which policy and legislation can be scrutinised in light of human rights. The first is vetting legislation for compatibility before it enters Parliament. The other is policy analysis within a human rights framework. The latter is a broader exercise and can include formal mechanisms such as Cabinet submissions. Experience from other countries shows that vetting legislation and framing policy within human rights can work well together to form a comprehensive approach to better governance.

4.3.2 Vetting legislation

Many people suggested that legislative vetting ensures that the executive is actively engaged in the process of interpreting and refining the scope of the broadly-stated Charter rights. Dr Julie Debeljak (3) from Monash University said that:

Such assessments by the policy-driven arm of government are a vital contribution to the inter-institutional dialogue about Charter rights, and can influence the legislative and judicial understandings of particular Charter issues.

Another benefit of vetting legislation identified by Dr Debeljak is that it helps legislative drafters to find ways of accomplishing important objectives in a manner that is more likely to protect human rights, while minimising disruption in attaining the policy goal.

Ensuring legislation meets Charter standards would involve the establishment of a unit to provide additional expertise on legislative vetting. There was discussion in the submissions about where best to locate such a team within the government: more detail about this debate can be found in Chapter 5. The Committee’s view is that the ACT model should be followed by establishing a Human Rights Unit in the Department of Justice. It should be recognised that all departments will still play a role in the process. In particular, each department will need to work closely with the Unit on all policies and legislation where human rights issues arise. By centralising the Unit within the one agency, there is a greater likelihood of developing a common whole-of-government approach to legislative vetting.

The ultimate purpose of legislative vetting is to prepare the Statement of Compatibility to be presented by the Attorney-General to Parliament. This is further discussed below.

4.3.3 Human Rights Impact Statements

Not all government decisions end up as legislation introduced into Parliament. A significant amount of government work is undertaken through subordinate legislation (such as regulations) and policy. Rules such as prison regulations are an example. Privacy systems, multicultural strategies, and protocols between departments are further examples of government policy in action. Funding programs for services are also a form of policy.

Some submissions suggested that there would be important benefits in formally examining policy to make sure it met human rights standards. This view was supported by the Victorian Bar:

A Victorian Charter would also provide direct benefits in guiding the formulation of new policy proposals. Each proposal would need to be examined to see whether rights were adequately protected and whether any proposed curtailment of rights was consistent with international standards and represented a reasonably proportionate means of achieving a legitimate goal. (Submission 139)

It was also suggested that one way for government departments to consider human rights in their policy formulation processes is to require them to prepare statements that identify and analyse the human rights impacts of their policy proposals. These human rights impact statements could form part of the policy development process.

The idea of human rights impact statements for policy proposals and subordinate legislation was explored in depth in the submission by Dr Simon Evans and Dr Carolyn Evans from the University of Melbourne. They suggest that a human rights impact statement should:

• identify the problem or issues which may give rise to the need for action;
• identify the desired objectives of the action;
• identify the policy instruments that might be employed to achieve the desired objectives;
• include an assessment of the human rights impact of each option;
• identify the extent of the consultation with those who would be affected by the proposed action and summarise their views;
• identify and give reasons supporting a recommended option; and
• describe a strategy to implement and review the recommended option. (4)

Their suggestion of human rights impact statements, along the lines of existing regulatory impact statements, has the following advantages:

They are a logical extension of the existing commitment to evidence based policy making. They do not disrupt existing institutional responsibilities and competencies. They are designed to cultivate a practice of human rights and interpretation and analysis in the executive. Submission 507: Dr Simon Evans and Dr Carolyn Evans, University of Melbourne.

Submissions from Professors Marcia Neave and Spencer Zifcak, The Charter Group and Kess Dovey (5) also recommended that Cabinet submissions be accompanied by a ‘Human Rights Effects Statement’ which identifies any areas where human rights concerns may arise from the proposed policy.

The Committee can see other advantages of impact statements in terms of a whole-of-government approach. Responsibility for preparing impact statements should rest with the department or agency that is making the proposal. This helps to ensure that human rights considerations are built into the policy making process at an early stage. It also helps to make sure that human rights scrutiny does not become the exclusive domain of the Department of Justice.

The Committee considers that a Human Rights Impact Statement should be included in Cabinet submissions for new Bills, policies and other major proposals so that Cabinet is aware of the human rights implications of its decisions. The requirement for and details of such a Statement should not be set out in the Charter, but in the Cabinet Handbook that deals with such matters.

The Committee believes that requiring Human Rights Impact Statements as part of Cabinet submissions will mean that government will be more likely to take active steps to fulfil its human rights obligations and deliver policy outcomes more consistent with human rights principles.

RECOMMENDATION 13

For legislative changes and policy and other decisions, the responsible Minister should ensure that a Human Rights Impact Statement is included in Cabinet submissions. The requirement for and details of such a Statement should be set out in the Cabinet Handbook. The Statement should include:

• a statement of the purpose of the Bill, regulation, policy or proposal;
• a statement of its effect upon any of the human rights in the Charter; and
• a statement of any limitation placed upon any human right in the Charter by the Bill, policy or proposal, the importance and purpose of this limitation, the nature and extent of the limitation, the relation between the limitation and its purpose and whether there is any less restrictive means to achieve the purpose.

4.3.4 Statements of Compatibility

There was strong support amongst the submissions for the pre-legislative scrutiny process to culminate in a statement to the Parliament on the compatibility of new legislation with the Charter. (6)

The Statement of Intent indicates that the Victorian Government is attracted to procedures whereby legislation being introduced into Parliament is certified as complying or not complying with the jurisdiction’s human rights obligations.

Human rights compatibility statements in other countries

United Kingdom: The Minister introducing legislation into Parliament is required to make a statement either that the proposed law is compatible or that no statement of compatibility can be made but that the government nevertheless intends to proceed with the law.

New Zealand: The Attorney-General makes a statement where the legislation is incompatible. The Parliament can still pass the law. The advice from the Crown Law Office is now made available on the internet.

ACT: The Attorney-General must present a compatibility statement to the Legislative Assembly. It must state whether the Bill is consistent with the human rights contained in the Act, and if not, how it is inconsistent.

While some submissions stated that the responsibility for making such a compatibility statement should be with the Minister in charge of the Bill, (7) most submissions that addressed this point preferred that the Attorney-General be given the role. The reasons provided for this preference were often similar to those set out by the Equal Opportunity Commission Victoria:

There is merit in compatibility statements being made by the Attorney-General rather than auspicing [sic] Ministers as this builds a safeguard into the Charter machinery. Ministers and their departments would retain responsibility and autonomy for making decisions and choosing legislative options that complied with human rights, but the specific question of compatibility would then be reviewed by the Attorney-General. (Submission 816).

Several submissions from individuals and from bodies such as the Law Institute of Victoria and The Charter Group recommended that, when making a compatibility statement, the Attorney-General should also provide reasons why the Bill is or is not considered to be compatible with the Charter. (8)

The Committee is persuaded by the submissions, the Government’s Statement of Intent, and the practice in the United Kingdom, New Zealand and the ACT, that there is a role for the Attorney-General to provide a statement to the Parliament indicating an opinion as to whether the Bill is compatible with the Charter. This statement should be provided at the time the Bill is introduced, before the second reading speech on the Bill.

In the case of the compatibility of private members Bills, the Committee believes that, wherever appropriate, the member introducing the Bill should make a statement indicating compatibility or incompatibility. It is not possible to be more precise about when this should occur and a common sense approach should be adopted.

The Committee also believes that, for each regulation tabled in Parliament, information in an appropriate form regarding the compatibility of the regulation with the Charter, should also be presented to Parliament. This could be based on existing practice and should not be overly burdensome. Existing systems such as Regulatory Impact Statements might be used to achieve this task.

The Committee agrees that the effectiveness of having compatibility statements would be enhanced by having reasons accompanying the statement. The ACT’s initial practice of one-line compatibility statements provided by the Attorney-General does not provide sufficient information to Parliament. The Committee considers that compatibility statements should deal with similar matters as set out in section 4.3.3 above in regard to Human Rights Impact Statements.

An overview of the role of the various agencies in the executive under the Committee’s recommended model is set out in Figure 4.2.

RECOMMENDATION 14

In regard to each Bill, the Attorney-General should present a Statement of Compatibility to Parliament. The Statement should set out whether or not, in the opinion of the Attorney-General, the Bill is consistent with the Charter. In doing so, the Statement should address the same matters as would be required in respect of a Human Rights Impact Statement.

Where appropriate, a member of Parliament introducing a private members Bill should make a Statement of Compatibility in the same form.

For each regulation tabled in Parliament, information should similarly be provided, in an appropriate form, regarding the compatibility of the regulation with the Charter.

4.4 What should be the role of Parliament?

4.4.1 Parliamentary sovereignty

Parliament is the elected arm of government and is able to make laws that apply to all people in Victoria. As the elected institution, it is often said that Parliament has the ultimate authority or sovereignty in deciding what the law in Victoria should be. It is important to ensure that Parliament is properly informed of the human rights issues associated with any new laws which it is debating.

Submissions to the Committee recognised that the initial role of Parliament in protecting human rights would be to legislate for the introduction of a human rights Charter. (9) Of course, as a sovereign institution, Parliament could in the future also amend or even repeal the Charter.

Several suggestions were made in submissions to ensure that the courts maintain their traditional role as part of the checks and balances in our system, but that Parliament retain the ultimate power to enact laws that may be inconsistent with the Charter.

The Victorian Bar suggested that Parliament retain the right to enact legislation that is incompatible with the Charter, provided that it expressly acknowledges that it is doing so. In the ACT, New Zealand and the United Kingdom, Parliament can pass such a law and it will have effect even though it does not meet Charter standards.

The Committee is persuaded by these and other submissions, the Statement of Intent and the models that have been developed in other nations of the need to preserve the ultimate sovereignty of Parliament as the elected institution. To achieve this outcome, the Committee recommends that the Charter includes a provision which retains Parliament’s power to pass laws that are not compatible with the Charter.

The Committee also recommends that Parliament be able to pass legislation even though no compatibility statement is made at the time a Bill is introduced, and even though no express declaration to use the override clause (see 4.4.2 below) is made.

4.4.2 Override clause

The Victorian Privacy Commissioner, Paul Chadwick (Submission 1171), suggested that courts should be able to strike down legislation that is incompatible with Charter rights, but that Parliament have the power to respond by re-enacting the law and providing justification as to why it is doing so. This would not meet the clear preference expressed in the Statement of Intent that courts be prevented from striking down legislation. However, it does raise the idea of an override clause.

There is an override clause in the Canadian Charter of Human Rights and Freedoms 1982. Section 33 allows Parliament to expressly declare that an Act shall operate notwithstanding an incompatibility with the Charter. This clause has rarely been used.

In Canada, the override on a piece of legislation has effect for five years. This means that a court cannot strike down that law for that five year period. It is important to remember that Canada’s Charter has constitutional status and so courts have strike-down powers. We do not recommend that power in Victoria.

The Committee can see value in having an override clause that can be used in exceptional circumstances and that is time-limited. The consequence of using this override power would be that the Supreme Court would not be able to issue a Declaration of Incompatibility (see 4.5.3 below) for five years and the interpretive clause would not apply to that Act or provision for the same period. After five years, Parliament should again be required to state that the relevant Act or provision is to continue to operate notwithstanding the Charter. This and any subsequent renewals should each operate for five years.

The Committee considers that the Parliament should only be able to use the override clause in exceptional circumstances. The Committee considers that the International Covenant on Civil and Political Rights 1966 is useful in setting out the circumstances when an override might apply, for example during a public emergency. (10)

The Committee is strongly of the view that it would be inappropriate to use the override clause to sanction a breach of important rights such as the right to life, freedom from slavery, freedom from torture and freedom of conscience, thought and religion.

When using the override clause, the Parliament should be required to state which Acts or parts of an Act are to override the Charter and which specific Charter rights the Act overrides.

RECOMMENDATION 15

The Charter of Human Rights and Responsibilities should include an override clause. The clause should provide that the Victorian Parliament may, in exceptional circumstances, override a Charter right by expressly declaring in the law it is intending to pass that an Act or provision is to operate notwithstanding that it is inconsistent with the Charter.

Where the Victorian Parliament uses this power, the Supreme Court should not be able to issue a Declaration of Incompatibility in respect of that Act or provision for five years after the Act or provision comes into force.

After this time, Parliament should again be able to state that the Act or provision is to continue to operate notwithstanding the Charter. Any subsequent renewals should also operate for five years.

4.4.3 Parliamentary committees

Parliamentary committees play an important role in facilitating broader parliamentary and public debate about proposed laws and can further assist the Parliament in assessing the human rights implications of new laws.

The Statement of Intent expresses the Victorian Government’s support for the procedures in the United Kingdom, New Zealand and the ACT. It also says that any model must operate within the existing Victorian constitutional framework.

The Committee received many submissions that stated that once new legislation is introduced into Parliament, a parliamentary committee should scrutinise the legislation and report on its compatibility with the Charter. It was recognised that such a committee can facilitate a more robust debate by providing a clear statement to Parliament about a Bill’s consistency with the Charter. (11) The Australian Human Rights Centre said that such a committee could contribute to a deeper and more considered form of deliberation on the rights implications of all Bills. (Submission 1080).

The Victorian Scrutiny of Acts and Regulations Committee (SARC) (Submission 22) has said that a parliamentary committee could expose legislation to effective scrutiny in a way that is independent of the executive and also allow for public participation in the process. This would promote a greater awareness of rights and freedoms within the Parliament, the executive and the community.

The Committee agrees. The substantive question is whether a special human rights committee is needed or whether the current SARC should be given additional functions.

Current role of the Scrutiny of Acts and Regulations Committee

The SARC is an all-party Committee of both Houses of the Victorian Parliament. It has nine members (supported by four secretariat staff) and considers and reports on any regulation and Bill introduced into the Victorian Parliament. The Committee is required to consider whether any new legislation:

• trespasses unduly upon rights or freedoms;
• makes rights, freedoms or obligations dependent upon insufficiently defined administrative powers;
• makes rights, freedoms or obligations dependent upon non-reviewable administrative decisions; or
• unduly requires or authorises acts or practices which have an adverse effect on personal privacy.

According to the SARC, in considering whether a provision unduly trespasses on rights or freedoms, they are guided primarily by a number of generic common law rights and freedoms, such as whether the provision abridges the privilege against self-incrimination, whether it creates an offence with a reverse onus of proof, whether it infringes the right to vote, a person’s right to privacy, or the presumption against retrospective legislation. (12)

Many submissions said that the scrutiny role should be undertaken by the SARC. Groups as diverse as the Equal Opportunity Commission Victoria, the Justice and International Mission Unit, Synod of Victoria and Tasmania, Uniting Church of Australia, Victoria Legal Aid, Mallesons Stephens Jaques Human Rights Group, the Australian Centre for Human Rights and the Public Interest Law Clearing House took this view. (13)

The Scrutiny of Acts and Regulations Committee of the Victorian Parliament (SARC) should have the power and function of reviewing all proposed legislation, including subordinate legislation, with reference to the rights contained in the Charter. The Scrutiny of Acts and Regulations Committee (SARC) should be required to issue a detailed statement of any provisions which fail to comply with the Charter and to make recommendations for the rectification of non-compliance in drafting. These recommendations should be returned to both Houses of Parliament for further consideration and response. Submission 959: Federation of Community Legal Centres

Some submissions said that it would not be reasonable to expect that, in addition to its existing dual role of scrutiny of Bills and Regulations, the SARC could also take on the additional workload of a Charter rights scrutiny function. Accordingly, some suggested that a separate human rights committee should be established to scrutinise proposed legislation and report to Parliament. Such a Committee exists in the United Kingdom.

A parliamentary Human Rights Committee should be established to scrutinise new legislation and advise upon its compatibility with the rights and freedoms contained in the Charter…It would be unreasonable to expect that SARC could undertake its existing functions as well as the onerous tasks imposed by the requirement to consider the compatibility of legislation with a Charter. It is for that reason, among others, that a new, dedicated committee would be required. Submission 840: Professor Marcia Neave and Professor Spencer Zifcak.

The United Kingdom Joint Committee on Human Rights (JCHR)

The United Kingdom Joint Committee on Human Rights (JCHR) is a committee of the House of Lords and the House of Commons. It has a maximum of 12 members appointed by each House. The Committee is required to consider and report on matters relating to human rights in the United Kingdom and on any ministerial response to a Declaration of Incompatibility made by a court. The Committee adheres to two key principles: comprehensively scrutinising all government Bills and seeking detailed evidence from government on the human rights compatibility of Bills before arriving at final views on them.

The Committee also undertakes non-legislative work, which has included: inquiring into proposals to establish a human rights commission, monitoring the implementation of the Human Rights Act 1998 and conducting inquiries on specific human rights issues. (14)

Another option suggested in submissions was creating a second parliamentary scrutiny committee so that there is a Scrutiny of Bills Committee and a Scrutiny of Regulations Committee, each with their own human rights scrutiny function and each having access to specialist external legal experts. (15)

According to experts from Canada, Dr James Kelly and Dr Janet Hiebert, it is important to be aware that a parliamentary scrutiny committee will be comprised of members from differing political parties and that members will need to distinguish the task of identifying possible rights violations from that of making judgements about the merits of the underlying policy. They state that the role of the committee should not be viewed as having to ‘solve’ the question of whether a Bill imposes an unwarranted restriction on rights, but to provide a framework to facilitate broader parliamentary and public debate on the justifications for the proposed legislation. (16) The Committee agrees with this view.

A number of issues come into play regardless of which Committee is involved. Any Committee would need to have adequate time to consider Bills, an adequate number of members of Parliament from all parties to make up the committee and sufficient staff to make sure the committee could perform its role.

While the terms of reference and the definition of rights is an important aspect of committee performance, many more prosaic factors also influence the effectiveness of committees. A well-resourced committee, whose personnel are genuinely committed to human rights protection and which is given adequate time to perform its functions, is likely to be more effective. Submission 507: Dr Simon Evans and Dr Carolyn Evans, University of Melbourne.

The Committee was pleased to receive a cross-party submission from the SARC on how best to protect and promote human rights. The SARC pointed out that any form of Charter scrutiny, inquiry and reporting functions would have resource implications.

This would be the case whether The Scrutiny of Acts and Regulations Committee (SARC) was required to report on every Bill or every ministerial compatibility statement accompanying a Bill, or just to report only on those Bills with statements that identify ‘incompatibility’. In either scenario, the Committee assumes that it will have a discretion to report on any Bill, if it believes that the Bill raises human rights issues, notwithstanding the fact that a minister or the Attorney-General has made a compatibility statement. (Submission 22).

The SARC also submitted that if the Courts have the power to declare legislation incompatible with the Charter, a parliamentary committee should have the power to conduct an inquiry regarding the ‘incompatible laws’. (17) The Committee supports this proposal because it gives Parliament further information with which to consider how to respond to any Declaration of Incompatibility.

Several submissions indicated that the scrutiny process to be conducted by a parliamentary committee should be open to the public, allowing for wider community consultation, input and debate before a Bill becomes law. 18

The scrutiny process should be public and informed by relevant opinion from interested members of the community. In this way, the wider community gains a further opportunity to engage in discussion about a Bill before it becomes law. Submission 820: FKA Children’s Services

Other suggestions made to facilitate effective scrutiny included:

• government and opposition parties entering into an agreement that the government of the day will not have a majority of members on the scrutiny committee, thus ensuring the committee’s independence from the government;
• appointing a non-parliamentary expert chair (for example, a retired judge, an eminent academic, or a former head of a human rights organisation) to the committee, to assist the committee and to reduce the possibilities for partisanship; and
• if the position of Victorian Human Rights Commissioner is created, appointing the Commissioner as an external, independent member of the committee. (19)

The Committee strongly supports the principle of further scrutiny of legislation once it has been introduced into Parliament and considers that such scrutiny could be undertaken by an all-party parliamentary Committee. We also believe that such a parliamentary committee would play an important role in considering subordinate or delegated legislation.

Where the Attorney-General or relevant minister is unable to make a statement that the new legislation is compatible with the Charter, there may be a need for a more in-depth inquiry by a parliamentary committee to assess the human rights implication of such an Act. The Committee also believes that there is a role for a parliamentary committee to consider legislation that is the subject of a declaration of incompatibility issued by the courts.

The Committee recognises that some legislation is introduced and passed by Parliament within a short time frame. The Committee believes that the opportunity to cast a Charter lens over such legislation should not be lost, but nor should the Bill be delayed. The Committee believes that a good way to balance this would be to allow the SARC to scrutinise Bills within ten sitting days of their introduction into Parliament or before their enactment, whichever is the later.

The Committee also believes that the SARC should have the capacity to conduct other inquiries related to human rights issues upon receiving a reference from either House of Parliament.

The Committee was persuaded by the submissions that recommended that this further scrutiny function be carried out by the existing SARC and that such inquiries allow for public input and participation. However, the Committee specifically notes concerns expressed by the SARC regarding the need for adequate resourcing to properly fulfil its scrutiny function. Like the United Kingdom body, the SARC would also need support in the form of an ongoing external advisor who is an expert in human rights and possibly specific one-off advice in regard to particular inquiries.

With these important changes to the SARC, the Committee suggests that it should be renamed in a way that reflects its new human rights scrutiny function as the ‘Human Rights Scrutiny Committee’.

An overview of the role of Parliament and the Parliamentary Scrutiny Committee under the Committee’s recommended model is provided in Figure 4.3.

RECOMMENDATION 16

The Scrutiny of Acts and Regulations Committee should be conferred with additional terms of reference to consider and report on matters arising under the Charter of Human Rights and Responsibilities, including questions referred to it by either House of Parliament, whether legislation is compatible with the Charter and consideration of any Declarations of Incompatibility made by a court.

The Committee should be able to report on Bills within ten sitting days of their introduction into Parliament or before their enactment, whichever is the later.

The Committee should be provided with sufficient resources to ensure that it can provide an appropriate level of advice and support to Parliament. Where possible, the Committee’s work with respect to human rights should allow for input and submissions from the public.

The Committee should be renamed the ‘Human Rights Scrutiny Committee’.

4.5 What should be the role of the courts?

The courts are independent from Parliament and the executive and traditionally have an important role to play in a democratic society by interpreting laws made by Parliament in hearings and deciding on disputes between parties.

Many submissions to the Committee said that the courts have an important role to play in the protection and development of human rights. In particular, there was recognition of the courts’ role in monitoring the actions of government and that such a role can be especially important under a human rights framework. (20)

The Public Advocate Julian Gardner (21) expressed concerns that, without dialogue with the courts, Parliament would be held to account only through the election process. The Public Advocate says that this is not a sufficient measure of accountability. Relying on this method, minority groups with limited economic and political power, such as people with disabilities, would be dependent upon the majority for the protection of their rights. That the act of voting is itself problematic for people with a range of disabilities highlights the danger of relying solely upon this accountability measure.

In many submissions, the courts were seen as playing a vital role for people who are vulnerable or at a disadvantage in holding Parliament accountable for protecting human rights. As one person who is homeless wrote: ‘the protection and clarification of rights and responsibilities should be up to the courts’. (22)

Submissions canvassed a range of roles for the courts. These included:

• having an interpretive power whereby existing legislation would be interpreted in a manner consistent with the Charter;
• having the power to strike down legislation on the basis that it is inconsistent with the Charter;
• dialogue with government regarding legislation that is found to be incompatible with the Charter; and
• having a role in considering individual complaints and providing redress to aggrieved individuals.

The last point is discussed in Chapter 6.

4.5.1 Interpreting legislation

Many submissions said that the most important role for the courts was in their capacity as interpreters of legislation passed by Parliament. In the context of protecting human rights, this role was expressed as a duty to interpret laws in a manner that is consistent with the rights protected in the Charter. Submissions from groups including the Justice and International Mission Unit, Synod of Victoria and Tasmania, Uniting Church of Australia, Melbourne Sexuality Law Reform Committee, Melbourne University Law Students Society, World Vision Australia and the Homeless Persons’ Legal Clinic all stressed the importance of this role.

The Castan Centre for Human Rights Law explained that this interpretive role is consistent with the preservation of parliamentary sovereignty. The Centre said it ensures that the final say on the law remains in the hands of Parliament while allowing a court to act, where appropriate, to remove any ambiguity that might lead to violations of the Charter. An interpretive provision assumes that the State Government would only seek to deliberately legislate in violation of the Charter through a statement of incompatibility issued by the Attorney-General at the time of a Bill being introduced to the Parliament. It can prevent the Charter being violated accidentally through ambiguous wording or misapplication by a government body. (23)

Section 30 of the ACT Human Rights Act 2004 states: ‘In working out the meaning of a Territory law, an interpretation that is consistent with human rights is as far as possible to be preferred.’ The ACT model also indicates that the courts are to take account, at the same time, of the purpose of the law. The phrase ‘working out the meaning of a Territory law’ means:

1. resolving an ambiguous or obscure provision of the law; or
2. confirming or displacing the apparent meaning of the law; or
3. finding the meaning of the law when its apparent meaning leads to a result that is manifestly absurd or is unreasonable; or
4. finding the meaning of the law in any other case.

Section 3 of the United Kingdom Human Rights Act 1998 states: ‘So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.’

The Charter Group suggested that, in defining the phrase ‘working out the meaning of a law’, a similar provision to that in the ACT should be adopted. (24) The Committee supports the ACT approach However, the Committee also believes that the provision could be worded more simply so that it would read: ‘So far as it is possible to do so, consistently with its purpose, a Victorian law must be read and given effect to in a way that is compatible with human rights.’

By making this plain, the courts would be provided with clear guidance to interpret legislation to give effect to a right so long as that interpretation is not so strained as to disturb the purpose of the legislation in question. This is consistent with some of the more recent cases in the United Kingdom, where a more purposive approach to interpretation was favoured. In the United Kingdom House of Lords decision in Ghaidan v Ghodin-Mendoza, Lord Nicholls of Birkenhead said:

The meaning imported by application of section 3 must be compatible with the underlying thrust of the legislation being construed. Words implied must ... ‘go with the grain of the legislation’. (25)

Or as Lord Rodger of Earlsferry stated:

It does not allow the courts to change the substance of a provision completely, to change a provision from one where Parliament says that x is to happen into one saying that x is not to happen. (26)

The Committee believes that the courts will be assisted in this interpretive role by considering relevant international law and the judgments of foreign and international courts and tribunals. This is consistent with the ACT Human Rights Act 2004 and will help to build up a uniform approach to questions of interpretation.

There may be cases where a lower court or tribunal requires guidance on an interpretive question. The Committee sees value in allowing such matters to be referred to a single judge of the Supreme Court for consideration, but only for interpretive questions where the lower court or tribunal considers that it would be an appropriate matter for determination by the Supreme Court. Such a question should, at any stage before the final determination of the proceeding, be able to be referred by the court or tribunal in which the matter has been raised to the Supreme Court for determination, on an application of one of the parties. Questions of interpretation could be heard by a single Judge of the Supreme Court sitting alone in the Trial Division of the Supreme Court.

The Committee believes that, where a referral to the Supreme Court takes place, formal notice of such a referral should be given to the Attorney-General and to the Victorian Human Rights Commissioner. Such notice should also be provided where the Supreme Court itself or the County Court (as the major trial court in Victoria) is considering a question which raises the interpretation of a Victorian law in light of the Charter.

RECOMMENDATION 17

All Victorian courts and tribunals should be required to interpret legislation in a way that is compatible with the Charter. In doing so, courts and tribunals should be directed to take account of the purpose of the legislation. Where relevant, international law and the judgments of foreign and international courts and tribunals should be considered.

RECOMMENDATION 18

In a proceeding before a court or tribunal in which a question of law is raised as to the interpretation of a Victorian law in light of the Charter, the question may be referred by that court or tribunal to the Supreme Court for determination where:

• the referral occurs before the final determination of the proceeding by the court or tribunal;
• one of the parties to the proceeding applies for the matter to be referred; and
• the court or tribunal considers it an appropriate matter for determination by the Supreme Court.

Notice of such a referral should be given to the Attorney-General and the Victorian Human Rights Commissioner. Such notice should also be provided where the Supreme Court (other than on a referral) or the County Court is considering a question as to the interpretation of a Victorian law in light of the Charter.

4.5.2 Should courts be allowed to strike down laws?

Several submissions strongly argued that courts should have the power to strike down legislation considered to be in breach of the Charter. (27) Others supported the Canadian model where the Supreme Court can take such an action, but Parliament is, in turn, able to override the Charter to preserve or re-enact the law. (28)

However, the Canadian model is a constitutional one and the Committee has already discussed its reasons for preferring a legislative model in Chapter 1. The Committee believes the best option is to follow the practice in the United Kingdom, the ACT and New Zealand where Courts cannot strike down primary legislation.

Other submissions said that such a strike down power should be confined to delegated or subordinate legislation. (29) It was argued that this is consistent with preserving the sovereignty of parliament because delegated legislation has been made by the executive and not by Parliament. (30)

The Charter should confirm that delegated legislation found to be incompatible with human rights is able to be struck down / declared invalid, except where the human rights incompatibility is clearly required or permitted by the relevant enabling enactment. Submission 816: Equal Opportunity Commission Victoria.

The Committee believes that the best course is not to make a distinction between Acts of Parliament and subordinate legislation. Subordinate legislation should be subject to the same judicial scrutiny as other legislation, without being able to be struck down for inconsistency with the Charter. It is arguable whether such a power is required in any event. In the normal course, subordinate legislation can be struck down by a court because it is not consistent with the Act authorising the making of the rule. This may be more likely to occur in cases where the Act has been interpreted in light of the Charter.

4.5.3 Declarations of Incompatibility

Many submissions expressed support for the courts having the power to make a Declaration of Incompatibility where the court is unable to interpret legislation in a way that is consistent with the Charter. It was pointed out that this is a good compromise between the power of declaring legislation invalid and allowing government institutions to simply ignore the Charter. It preserves the sovereignty of Parliament, yet still encourages dialogue between the courts, Parliament and the executive. (31)

The existence of non-binding ‘declarations of incompatibility’ and a ‘reasonable limits clause’ ensures that although the Human Rights Act creates a system where the three arms of government and the community all participate in a ‘dialogue’ over human rights, to use the words of the Charlesworth Committee, the dialogue is not ‘opened ended’ and the legislature is assigned the ‘last say’ in relation to human rights issues. Submission 114: Paul McGrath

In terms of dialogue, the arms of government are locked into a continuing dialogue that no arm can once and for all determine. The initial views of the executive and legislature do not trump because the judiciary can review their actions. Conversely, the judicial view does not necessarily trump, given the number of representative response mechanisms. Submission 839: Dr Julie Debeljak, Monash University

Several submissions referred favourably to the ACT model, stating that it promotes institutional dialogue and ensures that rights which are highlighted in a declaration of incompatibility cannot be ignored by Parliament:

The ACT model encourages such a dialogue, whereby the Supreme Court can issue declarations of incompatibility where legislation is found to be inconsistent with the Human Rights Charter…The intention behind the model is to create a dialogue so the Parliament is obliged to participate in a conversation about human rights, recognising its duty to the community to explain its actions. Submission 446: Victorian Gay and Lesbian Rights Lobby

A feature of the ACT system is that declarations are not binding on the parties to the proceedings in the sense that the Declarations of Incompatibility do not detract from the operation of the law. The law still applies to the parties, even if it is incompatible with the Charter. There were a small number of submissions which said this meant that Declarations of Incompatibility lack real effect:

We consider that a declaration of incompatibility … does not go far enough. If a Charter of Human Rights is to be effective, there should be some meaningful consequence in the event of inconsistency with the Charter. Submission 139: Victorian Bar

In the United Kingdom, superior courts are able to make a declaration that legislation is incompatible with the Act. Like the ACT, a Declaration of Incompatibility does not affect the validity or continuing operation or enforcement of the legislation. In the United Kingdom, if such a declaration is made, the government has the power to make a remedial order, using a fast-track procedure involving the executive to amend the legislation if there are compelling reasons to do so.

Declarations of Incompatibility have been used infrequently in the United Kingdom. Since the Human Rights Act 1998 came into force, there have been 17 Declarations of Incompatibility, of which ten have become final in accordance with the Act. (32)

Examples of a Declaration of Incompatibility in the United Kingdom

The case of R (H) v Mental Health Review Tribunal (North and East London Region) concerned a man who sought discharge from hospital, following his detention under the Mental Health Act 1983. The Court of Appeal issued a declaration of incompatibility because the legislation breached the right to liberty insofar as the patient had to prove that he should be released.

Parliament then amended the law to bring it into line with the European Convention on Human Rights and Fundamental Freedoms 1950 in regards to the right to liberty. The burden of proof to show that a patient is still suffering from a mental health disorder and should continue to be detained now rests with the service provider.

R (on the application of Wilkinson) v Inland Revenue Commissioners concerned a law which provided a Widows Bereavement Allowance to widows but not to widowers. The Court of Appeal issued a Declaration of Incompatibility on the basis of the discriminatory nature of the provision. However, by the time of the judgement the Parliament had already repealed the relevant section.

The Committee recognises the limitations of such Declarations of Incompatibility in providing individual relief. However, we were persuaded by those submissions that expressed support for such a process. The Committee sees Declarations of Incompatibility as important to the effectiveness of the Charter. They are a channel through which the dialogue between the courts and the Parliament takes place. While Declarations of Incompatibility have been used infrequently in the United Kingdom, they are significant both as a trigger for parliamentary re-consideration and as a means of holding the executive to account.

4.5.4 Who should make a Declaration?

Several submissions in support of Declarations of Incompatibility gave consideration to which courts should have this power. It was recognised that there is a tension between access to justice and making sure that declarations have the necessary authority. (33)

The Equal Opportunity Commission Victoria, whilst supporting that all courts be invested with a power to make declarations, also recommended a number of other provisions to enhance accessibility to human rights outcomes for disadvantaged parties, including:

• authorising the Equal Opportunity Commission Victoria to seek declaratory judgments where to do so would facilitate performance of its functions in relation to advocating for, promoting and protecting human rights;
• that the Charter contain provisions which insulate individuals from personally bearing the costs of proceedings where the State is appealing a proceeding in which a declaration of incompatibility has been made; and
• that the Charter contain a mechanism permitting direct applications to the courts for declarations of incompatibility without needing to wait for an individual case to raise the issue in question. (34)

There was strong support in several submissions for the power to issue a Declaration of Incompatibility to be invested only in the Supreme Court of Victoria. (35)

Access to justice would be served by allowing any court or tribunal to issued declarations… Despite the force of these arguments, I submit that the novelty and importance of the power to issue a declaration of incompatibility are such that only a justice of the Supreme Court should have it. (Submission 1167: Justice Kevin Bell)

One submission stated that the power should also be held by the President of the Victorian Civil and Administrative Tribunal (VCAT), given that the President must also be a Supreme Court justice. (36)

To address the important question of access, it was also suggested that all courts have the power to send a case to the Supreme Court in appropriate cases where a Declaration of Incompatibility may arise. (37)

The Committee is persuaded that, for Declarations of Incompatibility to have appropriate authority, they need to issue only from Victoria’s superior and most authoritative court, the Supreme Court. In order to make this process as accessible as possible, the Charter should include a mechanism to refer a question of law on interpretation to the Supreme Court directly from a lower court or tribunal. It will also be necessary to defer the final decision on the case until the Supreme Court has made a decision on the Declaration of Incompatibility. A declaration should be able to be made regardless of whether the law was made before or after the Charter commenced.

Because a Declaration of Incompatibility is so important, the Committee believes that the public interest would be served by requiring that, when the Supreme Court is considering whether to make a Declaration of Incompatibility, the Attorney-General and the Victorian Human Rights Commissioner have the right to join the proceedings.

The Charter should also recognise the existing rule that other people, such as non-government bodes, may also seek to intervene in such cases to assist the court.

RECOMMENDATION 19

If the Victorian Supreme Court is satisfied that an Act, subordinate legislation or provision of either cannot be interpreted in a way that is consistent with the human rights listed in Charter, it may make a Declaration of Incompatibility.

Only the Supreme Court should have the power to make a Declaration of Incompatibility.

Where a Declaration of Incompatibility is made, it should not affect the validity or continuing operation or enforcement of the Act or subordinate legislation.

The Supreme Court should not make a Declaration of Incompatibility unless it is satisfied that a notice has been given to the Attorney-General and the Victorian Human Rights Commissioner that the Court is considering making such an order.

RECOMMENDATION 20

The Attorney-General and Victorian Human Rights Commissioner should have the right to intervene in any proceeding before any court or tribunal that involves the application or interpretation of the Charter. Other persons should be able to intervene in such matters at the leave of the court or tribunal, subject to such directions and conditions as the court thinks fit.

4.5.5 Effect of a Declaration

The consensus amongst those people making submissions who considered this issue was that such a declaration should not invalidate the legislation, but should require the legislation to be referred back to Parliament either for the incompatibility to be removed or for the Parliament to decide that the legislation should operate even with the incompatibility. (38) This is consistent with the approach in the United Kingdom and the ACT.

In the United Kingdom, when such a declaration is made, the government has the power to make a remedial order, using a fast-track procedure to amend the legislation if there are compelling reasons to do so.

In the ACT, once a copy of the declaration is given to the Attorney-General, he or she must present a copy of the declaration to the Parliament within six sitting days. The Attorney-General must provide a written response to the declaration within six months of receiving it.

Several submissions emphasised the importance of a timely response from Parliament to Declarations of Incompatibility made by the court. (39)

It may therefore be necessary to put a time limit on the process … to ensure that The Scrutiny of Acts and Regulations Committee (SARC) or the Attorney-General are not permitted to delay the process indefinitely. (Submission 795: Kes Dovey)

The Committee agrees that there should not be undue delay in Parliament dealing with a Declaration of Incompatibility. The Committee is of the view that the Attorney-General should present the Declaration of Incompatibility to Parliament within six sitting days of receiving the declaration. The Committee also believes that it is important for the declaration to be referred to the Human Rights Scrutiny Committee, which should inquire and report on the declaration within three months. The Attorney-General should then be required to present a written response to the declaration to Parliament within six months of the declaration being tabled in Parliament.

An overview of the process for Declarations of Incompatibility under the Committee’s recommended model is provided in Figure 4.4.

RECOMMENDATION 21

Where the Supreme Court makes a Declaration of Incompatibility

• a copy of the Declaration should be provided to the Attorney-General within seven days;
• the Attorney-General should arrange for the Declaration to be laid before each House of Parliament on or before the sixth sitting day of that House after receiving the Declaration;
• the Human Rights Scrutiny Committee should inquire into and report on the Declaration within three months of the Declaration having been laid before each House of Parliament; and
• the Attorney-General should prepare a written response to the Declaration to be presented before each House of Parliament within six months of having first presented the Declaration to Parliament.