Report Concerning Parliamentary Review of ANZAC Day Laws

Report concerning Parliamentary Review of ANZAC Day Laws

57th Parliament

Review of the
Charter of Human Rights and Responsibilities Act 2006

Ordered to be Printed

By Authority. Government Printer for the State of Victoria.
N° 69 Session 2010-11

Parliament of Victoria, Australia

Scrutiny of Acts and Regulations Committee

Review of the Charter of Human Rights and Responsibilities Act 2006

ISBN 978 0 7311 3040 5

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Report concerning Parliamentary Review of ANZAC Day Laws

Scrutiny of Acts and Regulations Committee

MembersMr Edward O’Donohue MLC(Chairperson)

Hon. Christine Campbell MLA(Deputy Chairperson)

Mr John Eren MLA

Mr Michael Gidley MLA

Mr Don Nardella MLA

Mr David O’Brien MLC

Mrs Graham Watt MLA

StaffMr Andrew HomerSenior Legal Adviser

Ms Helen MasonLegal Adviser, Regulations

Mr Simon DinsbergsAssistant Executive Officer

Mrs Sonya CaruanaCommittee Administrative Officer

Mrs Victoria KalapacCommittee Administration Officer

Ms Maria MarascoCommittee Administration Officer

ConsultantsAssociate Professor Jeremy Gans

Dr Charles Parkinson

Dr Nicole Schlesinger

AddressParliament House, MelbourneVictoria 3002

Telephone(03) 8682 2895

Facsimile(03) 8682 2858

Email

Internet

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Report concerning Parliamentary Review of ANZAC Day Laws

Functions of the Committee

The statutory functions of the Scrutiny of Acts and Regulations Committee as set out in section 17 of the Parliamentary Committees Act 2003 are —

(a)to consider any Bill introduced into the Council or the Assembly and to report to the Parliament as to whether the Bill directly or indirectly–

(i)trespasses unduly upon rights or freedoms;

(ii)makes rights, freedoms or obligations dependent upon insufficiently defined administrative powers;

(iii)makes rights, freedoms or obligations dependent upon non-reviewable administrative decisions;

(iv)unduly requires or authorises acts or practices that may have an adverse effect on personal privacy within the meaning of the Information Privacy Act 2000;

(v)unduly requires or authorises acts or practices that may have an adverse effect on privacy of health information within the meaning of the Health Records Act 2001;

(vi)inappropriately delegates legislative power;

(vii)insufficiently subjects the exercise of legislative power to parliamentary scrutiny;

(viii)is incompatible with the human rights set out in the Charter of Human Rights and Responsibilities;

(b)to consider any Bill introduced into the Council or the Assembly and to report to the Parliament –

(i)as to whether the Bill directly or indirectly repeals, alters or varies section 85 of the Constitution Act 1975, or raises an issue as to the jurisdiction of the Supreme Court;

(ii)if a Bill repeals, alters or varies section 85 of the Constitution Act 1975, whether this is in all the circumstances appropriate and desirable;

(iii)if a Bill does not repeal, alter or vary section 85 of the Constitution Act 1975, but where an issue is raised as to the jurisdiction of the Supreme Court, as to the full implications of that issue;

(c)to consider any Act that was not considered under paragraph (a) or (b) when it was a Bill –

(i)within 30 days immediately after the first appointment of members of the Committee after the commencement of each Parliament; or

(ii)within 10 sitting days after the Act receives Royal Assent —

whichever is the later, and to report to the Parliament with respect to that Act or any matter referred to in those paragraphs; (d) the functions conferred on the Committee by the Subordinate Legislation Act 1994;

(e)the functions conferred on the Committee by the Environment Protection Act 1970;

(f)the functions conferred on the Committee by the Co-operative Schemes (Administrative Actions) Act 2001;

(fa)the functions conferred on the Committee by the Charter of Human Rights and Responsibilities;

(g)to review any Act in accordance with the terms of reference under which the Act is referred to the Committee under this Act.

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Scrutiny of Acts and Regulations Committee

Terms of Reference

SCRUTINY OF ACTS AND REGULATIONS COMMITTEE OF PARLIAMENT

REVIEW OF THE
CHARTER OF HUMAN RIGHTS AND RESPONSIBILITIES ACT 2006

To inquire into and report by 1 October 2011 on the first four years of operation of the Charter of Human Rights and Responsibilities Act 2006 (the Charter Act), including:

1.the matters referred to in section 44(2) of the Charter Act

2.the effects of the Charter Act on

(a)the development and drafting of statutory provisions

(b)the consideration of statutory provisions by Parliament

(c)the provision of services, and the performance of other functions, by public authorities

(d)litigation and the roles and functioning of courts and tribunals

(e)the availability to Victorians of accessible, just and timely remedies for infringements of rights

3.the overall benefits and costs of the Charter Act; and

4.options for reform or improvement of the regime for protecting and upholding rights and responsibilities in Victoria.

In carrying out its inquiry, the Committee is asked to take note of, and make use of as it sees fit, the evidence and findings of, and government responses to, previous inquiries and reports concerning rights and responsibilities in Australia.

Victoria Government Gazette,
No.S 128, Tuesday 19 April 2011

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Scrutiny of Acts and Regulations Committee

Glossary of terms and abbreviations

In this paper the following abbreviations are used:

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Scrutiny of Acts and Regulations Committee

Chair’s Foreword

I am pleased to present the Scrutiny of Acts and Regulations Committee’s (SARC) review of the Charter of Human Rights and Responsibilities Act 2006 (the ‘Charter’).

The four year review and inquiry is pursuant to section 44 of the Charter. That provision requires the Attorney-General to cause a review to be made of the first 4 years of the Charter’s operation for tabling in Parliament before 1 October 2011. SARC was requested to undertake the review and inquiry by the Governor-in-Council Order dated 19th April 2011. In addition, three other terms of reference were provided to SARC which form part of this report.

The meaning of human rights in a Victorian context and the most appropriate way to protect and enhance those rights are matters of significant public interest and debate.

SARC and other joint Parliamentary Committees have a history of dealing with challenging and complex issues in a diligent and bipartisan manner.

It is hoped that this report continues that tradition by adequately responding to the terms of reference and provides the community with detailed and constructive recommendations to improve the regime for protecting human rights in Victoria.

In the report, SARC notes that the Charter is an ordinary statute capable of repeal or amendment. In addition, the Charter has built within it mandatory four year and eight year reviews, which of their very nature, contemplate change. The Charter has been in operation for over four years which presents an opportunity for a deeper and more evidence-based analysis of the question of how best to protect human rights in Victoria than was possible under the initial consultation that led to the Charter.

In responding to the below terms of reference there was much common ground. There is agreement regarding the problems with the current Charter and only a difference on the most appropriate solution.

Terms of reference:

1.Section 44 (2) of the Charter requires the consideration of the expansion of the Charter rights and how, with their Charter obligations and tested and enforced. (Chapter 3)

SARC finds that the case for adding new categories of rights, reviews and proceedings to the existing Charter has not been made.

2.The impact of the Charter on the development of legislation, Parliament, public authorities, courts and tribunals and remedies. (Chapter 4)

Various recommendations are made to address the problems identified pursuant to this term of reference, such as; the redrafting of the provisions on reasonable limits and obligations of public authorities in plain, localised language, reconsideration and revision of the interpretation provision to preserve traditional interpretation methods and the primacy of the purpose of statutory provisions, replacement of the complex definition of public authorities with a clear statutory list of each body and function, transfer of the Supreme Court’s role in making declarations of inconsistent interpretation to an independent non-judicial body reporting to a Parliamentary Committee, and express identification of specific remedies (if any) to be made available for breaches of the provisions for obligations of public authorities.

3.The overall costs and benefits of the Charter. (Chapter 5)

The difficulty in identifying costs and benefits, as noted in numerous submissions, was demonstrated by the Government submission which detailed costs of $13,488,750. This figure captured part of the total direct costs to date and did not include indirect costs. As a consequence, SARC was unable to make any specific conclusions about the costs and benefits of the Charter.

4.Options for reform or improvement of the regime for protecting and upholding rights and responsibilities in Victoria. (Chapter 6)

Having made recommendations pursuant to the above terms of reference, SARC presents for consideration two options for reform and improvement of the human rights regime in Victoria.

Option 1, preferred by the minority, retains the current Charter framework with the significant reforms and simplification recommended in chapters 3, 4 and 5.

Option 2, preferred by the majority, retains the provisions for scrutiny of new law while removing the obligations of public authorities and returning the courts and tribunals to their traditional role. These changes create flexibility and enable the consideration of additional rights and new forms of dispute resolution with the prospect of justiciability removed.

Two major court decisions on the Charter were brought down in the final days of the inquiry and are referred to below.

In the first decision, Director of Housing v Sudi, the Court of Appeal overruled an earlier ruling of the Victorian Civil and Administrative Tribunal (VCAT) by ruling that VCAT has no jurisdiction to determine whether or not a public landlord’s conduct complied with the Charter. Instead, a tenant who seeks a remedy for a landlord’s alleged failure to comply with the Charter will have to bring a judicial review proceeding in the Supreme Court. Such concerns about jurisdiction are one of the reasons why SARC recommends against adding an independent remedy to the Charter (Recommendation 8) and instead recommends that Parliament should expressly specify all remedies for breaches of the Charter by public authorities (Recommendation 32.)

In the second decision, Momcilovic v The Queen, the High Court overturned the first and (to date) only declaration of inconsistent interpretation made under Victoria’s Charter. While a narrow majority of the Court held that the provisions for declarations are valid, the majority was divided on when such declarations can be made. Two judges held that courts may engage in a reasonable limits analysis when making a declaration, while the opposite view was part of the other two judges’ reasons for upholding the validity of the relevant provisions. Those two judges also held that such declarations should rarely be made in criminal matters. Doubts about the constitutional validity and appropriateness of the current Charter’s provisions for declarations were reasons why SARC recommend transferring the Supreme Court’s role in making declarations to a non-judicial body reporting to a Parliamentary Committee (Recommendation 31.)

A clear majority of the High Court held that the Charter’s interpretation rule is limited to traditional methods of interpretation, rejecting the significance of overseas approaches. Accordingly, the result in the case – the overturning of Ms Momcilovic’s conviction because the trial judge directed the jury that the burden of proof on one issue was on the defendant – followed from both the Charter and the common law principle of legality. However, the majority split evenly on the question of whether or not the Charter’s interpretation rule is qualified by the Charter’s test for reasonable limits. The deciding vote (holding that it was) was cast by a judge who relied on that holding to declare the entire Charter is unconstitutional. SARC’s concerns about both the necessity and intelligibility of the Charter’s interpretation rule are why it recommended its reconsideration and redrafting in local language (Recommendation 24.)

Finally, two judges ruled that Victoria’s Director of Public Prosecutions is a public authority under the Charter, disagreeing with the DPP’s argument and Mr Rapke’s submission to this inquiry (see [441].) However, the remaining judges did not address this issue. The uncertainty about the application of the definition of public authority to prosecutors is one of the reasons why SARC recommended that Charter’s definition be replaced with a schedule specifying all entities and functions that are subject to the obligation to give proper consideration to human rights (Recommendation 22.)

Both of the options for reform recommended for consideration by SARC aim to overcome the difficulties identified in these and other judgments on the Charter. Option 1 incorporates the above recommendations and other changes aimed at increasing the usability of the current Charter model. Option 2, by removing the existing role of the Courts, would remove the divisions containing the above provisions of the Charter altogether.

The review and inquiry presented SARC with challenging issues and an exacting timetable in which to complete its review and recommendations. I thank the Deputy Chair and all Members of the Committee for their significant individual contributions throughout this process.

The Committee is indebted to its team of professional legal advisers and human rights counsel. I thank the Committee’s Senior Legal Adviser, Mr Andrew Homer, for his advice and co-ordination of the overall review project. The Committee thanks our Legal Adviser (Regulations), Ms Helen Mason for her significant role during the public hearings. Further, the Committee was fortunate to obtain external specialist human rights advice from Associate Professor Jeremy Gans (LawSchool, University of Melbourne and SARC Human Rights Counsel); Dr Charles Parkinson (Barrister-at-Law); and Dr Nicole Schlesinger (Human Rights and Equal Opportunity Consultant).

The Committee is further indebted to our dedicated administrative team, Simon Dinsbergs, Sonya Caruana, Maria Marasco and Victoria Kalapac. Their professional assistance enabled the Committee to effectively handle over 320 major submissions and a further 3600 smaller submissions or comments.

Finally, I thank all persons and organisations who made written contributions to the Committee or who appeared before the Committee to give further evidence at the public hearings. Their contributions have allowed us to consider all points of view and have informed our deliberations and the recommendations we now make.

Edward O’Donohue MLC
Chairperson

September 2011

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Scrutiny of Acts and Regulations Committee

Table of Contents

Committee Membership

Functions of the Committee

Terms of Reference

Glossary of terms and abbreviations

Chair’s Foreword

Recommendations

1: The Charter of Human Rights and Responsibilities Act 2006 Review

Introduction

1.1The Scrutiny of Acts and Regulations Committee

1.2Conduct of the Review

2: Charter of Human Rights and Responsibilities Act 2006

2.1Background

2.2The Charter of Human Rights and Responsibilities Act 2006

3:Additional Rights and Remedies

Introduction

3.1Whether additional human rights should be included in this Charter

3.2Whether the right to self-determination should be included in this Charter

3.3Mandatory auditing of public authorities

3.4Further provision for proceedings or remedies for breaches of the Charter by
public authorities

4:The Effect of the Charter Report

Introduction

4.1The development and drafting of statutory provisions

4.2The consideration of statutory provisions by the Parliament

4.3The provision of services, and the performance of other functions, by public authorities

4.4 Litigation and the roles and functioning of courts and tribunals