compatibility
Charter permits Parliament in exceptional
circumstances to pass laws that are incompatible
with human rights.
override declarations in 2012.
Charter, the Government indicated that it will
repeal the override provision. The Government
agreed with SARC's assessment that the override
declaration was unnecessary and creates the
misleading impression that Parliament is not
otherwise able to introduce legislation that is
incompatible with human rights.
must contain a statement of compatibility with
human rights, Parliament is nevertheless able to
introduce a Bill that is incompatible with human
rights. A Bill will be valid notwithstanding such
incompatibility. This has happened only twice
since the Charter was enacted and there were no
statements in 2012 where the Minister introducing
a Bill considered it to be incompatible with human
rights.
in amendments to a Bill, it does serve to
highlight occasions when the process can
be improved and can also identify potentially
rights-inconsistent laws.
Parliament in 2012 on human rights issues was
the Transport Legislation Amendment (Marine
Drug and Alcohol Standards Modernisation
and Other Matters) Bill 2012. SARC identified a
number of human rights that were not addressed
in the statement of compatibility. The detailed
analysis by SARC and the Minister for Ports'
comprehensive response allowed an extensive
parliamentary debate about the perceived
inadequacy of the statement and the human
rights implications of the Bill.
that the statement dealt adequately with the
Bill's provisions and that the Department of
Transport has sought advice regarding the
statement from specialist government agencies.
Human Rights and Responsibilities Act 2006,
Victorian Government Response, March 2012, p 4.
Committee's views to the Department, which in
turn assured him that the comments will influence
the Department's statements in future. The
Department noted that, although the statement
of compatibility was comprehensive, SARC took
the view that there was not enough detail about
some Charter rights that were engaged but not
limited. Accordingly, the Department reported
that statements prepared for later Bills focused
in more detail on these issues.
for interested organisations to provide input
into a Bill, particularly where there has not
been significant public consultation involved
in its development. A number of bodies and
individuals have previously taken the opportunity
to raise concerns with Bills that SARC and
Parliament can consider in their assessment of
the statement of compatibility. The efficiency of a
rapid reporting timeframe, however, may make it
more difficult for stakeholders to contribute in this
way. The Commission suggests that SARC should
consider ways of allowing for a process of public
submissions.
SARC in 2012, there are other means by which
stakeholders and the public can influence the
development of Bills.
of compatibility alongside all new Bills can
encourage consultation on the rights impact
of a law prior to the legislation being drafted.
For example, the Department of Health is
currently consulting on human rights issues
prior to determining major reform outcomes,
including through the Mental Health Act review
and forthcoming Cancer Act review (2013). This
provides an opportunity for stakeholders to raise
concerns about human rights issues prior to the
drafting process, which assists departments to
identify all relevant issues and produce laws that
are more considered.
of Justice observed that stakeholders may be
consulted when developing a bill and that their
responses will be taken into account when
finalising the legislation and the accompanying
statement. It gave the example of the Civil
Procedure Amendment Act 2012, which changed