Parliamentary Obligations and the Charter of Human Rights

Parliamentary Obligations under the Charter

Recap: Scope and Purpose of the Charter
- Earlier discussions highlighted the requirement of a statement of compatibility.
- This is now a specific obligation under Section 28 of the Charter of Human Rights and Responsibilities Act.

Section 28: Statement of Compatibility

Overview of Subsections
- Section 28 is divided into four subsections.
- Subsections 1, 2, and 3 are primarily procedural, outlining the processes Parliament must follow.
- Subsection 4 deals with the non-binding nature of the statement.
Procedural Requirements (Subsections 1-3)
- Subsection 1: Responsibility for Preparation
  - It is the personal responsibility of the Member of Parliament (MP) who is proposing a new bill to prepare the Statement of Compatibility.
- Subsection 2: Laying Before Parliament
  - The prepared Statement of Compatibility must be laid before the specific house of Parliament (either upper or lower house) in which the bill is being introduced.
  - This action must take place before the minister or MP delivers their second reading speech on the bill.
- Subsection 3: Content of the Statement
  - 3(a): Statement of Compatibility Status
    - The statement must explicitly declare whether, in the MP's opinion, the bill is compatible with human rights.
    - If deemed compatible, it must further explain how it is compatible.
  - 3(b): Explanation of Incompatibility
    - If, in the MP's opinion, any portion of the bill is incompatible with human rights, the statement must explain the nature and extent of this incompatibility.
    - This subsection places the onus or burden on the minister to provide a clear explanation, even if the bill is not fully compatible.
Non-Procedural Aspect (Subsection 4)
- A Statement of Compatibility made under Section 28 is not binding on any court or tribunal.
- Courts are not legally obliged to consider it during their proceedings.
- However, it can be a helpful tool for courts when attempting to ascertain the underlying purpose or intent of a new bill.
Extrinsic Sources and Context
- To fully understand the provision, reference should be made to extrinsic sources such as the Explanatory Memorandum and the Second Reading Speech for the Charter.
- These sources provide crucial information on why Parliament chose to enact Section 28 and the origin of the compatibility statement idea.
- Note: Students are encouraged to research and read these documents independently.

Section 29: Impact on Bill Validity

Relationship with Section 28
- Section 28 cannot be understood in isolation; it must be considered in conjunction with Section 29.
Consequence of Non-Compliance
- Section 29 stipulates that a failure to comply with the requirements of Section 28 (regarding the Statement of Compatibility) for any bill that subsequently becomes an Act does not affect the validity, operation, or enforcement of that Act, or any other statutory provision.
- This provision might initially lead one to question the overall purpose and effectiveness of the Statement of Compatibility.

Purpose and Function of Compatibility Statements

Core Objective of the Legislation
- A primary purpose of the Charter legislation is to ensure that Parliament, as an integral part of its decision-making process, actively considers the relevant human rights and responsibilities enshrined within the legislation when enacting new laws.
Role of Sections 28 and 29
- These sections collectively serve to guarantee that Charter rights are, at the very least, considered during the legislative process, even if they are ultimately not upheld in the final legislation.
- Section 28 particularly enables the minister to explain and, if necessary, defend any identified incompatibilities.
Justifications for Incompatibility
- Ministers might justify incompatibilities by arguing that:
  - No human rights are absolute.
  - Rights often need to be balanced against other rights and competing public interests, such as public health and safety.
- Therefore, the requirement for a Statement of Compatibility does not mandate that new legislation must be compatible with human rights.
- Instead, its true purpose is to demonstrate that the Charter was an integral part of the decision-making process for the minister.
Nature of the Statement as Opinion
- While a Statement of Compatibility is a valuable source of information regarding an Act and can aid in determining its purpose, it represents only the member of parliament's opinion on the Act's compatibility with the Charter.
- It is not a legally binding document or a law in itself.
- The actual obligation imposed is simply that the statement reflects the member's opinion, not a definitive legal judgment.

Section 30: Scrutiny of Acts and Regulations Committee (SARC)

Administrative Role
- Section 30 is another administrative section of the Charter.
- It establishes and empowers the Scrutiny of Acts and Regulations Committee (SARC).
Committee Structure and Function
- SARC is an all-party, joint-house committee.
- Its primary role is to examine all bills introduced into the Victorian Parliament.
- Following its examination, the committee reports back to Parliament, specifically addressing whether the new bill is compatible with human rights.
Critical Analysis and Comparison
- It can be insightful to compare SARC's comments and conclusions regarding a bill with the justifications provided by the proposing member of parliament in their Statement of Compatibility.
- When evaluating these opinions and reports, it is crucial to apply critical thinking, legal reasoning, and analytical skills.
- Important Caveat: Neither the Statement of Compatibility nor SARC reports should be taken as entirely legally accurate.
- Students are advised to read these documents through "the critical eyes of a lawyer."
- Do not hesitate to disagree with the rationale or conclusions presented by either the minister or the committee, especially given that not all committee members may have legal training.

Section 31: Parliamentary Override Provision

Procedural/Administrative Nature
- Section 31 introduces the parliamentary override provision, functioning as another key procedural or administrative mechanism within the Charter.
Mechanism for Override
- This section grants Parliament the explicit power to declare that a particular Act, or a specific section or subsection within an Act, shall remain effective even if it is found to be incompatible with one or more of the human rights outlined in the Charter.
Upholding Parliamentary Sovereignty
- Section 31 allows Parliament to maintain its ultimate control over the power to legislate.
- It enables Parliament to make an express declaration that, in specific situations, an Act (or part thereof, including delegated legislation) will operate despite its human rights incompatibility.
- While this provision might seem to undermine the Charter's power, it is fundamentally understood to uphold parliamentary sovereignty, which is the stated underlying reason for its inclusion.
Context from Second Reading Speech
- Mr. Hulls, in the Second Reading Speech for the Charter, articulated this rationale:
  - "Consistent with preserving the sovereignty of parliament, clause 31 of the bill provides that in exceptional circumstances, parliament can declare in an act that the act or a provision within the act will operate notwithstanding that it is incompatible with one or more the human rights contained in the charter."
- Second reading speeches are invaluable for providing scope, context, and aiding in the interpretation of relevant Charter sections, clearly showing government intention.
"Exceptional Circumstances" and Public Interest
- The extract from Mr. Hulls' speech also explains what constitutes these "special circumstances."
- The government's intention is clear: this override power should only be invoked when it demonstrably serves the public interest.
Burden of Justification
- The onus or burden lies with the member of parliament introducing a bill that includes an override declaration.
- This MP must fully explain to Parliament the specific "special circumstances" that justify the inclusion of such an override declaration.