Scrutiny of Acts and Regulations Committee

Alert Digest No 6 of 2008

Ministerial Correspondence

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Constitution Amendment (Judicial Pensions) Bill 2008

The Bill was introduced into the Legislative Assembly on 4 December 2007 by the Hon. Rob Hulls MLA. The Committee considered the Bill on 4 February 2008 and made the following comments in Alert Digest No. 1 of 2008 tabled in the Parliament on 5 February 2008.

Committee’s Comment

Charter Report

Keywords: Marital status discrimination – Sexual orientation discrimination – Pension for unmarried partners of former constitutional and judicial officers – Meaning of ‘partner’ – Retrospective entitlement limited to opposite sex partners – Incompatibility with human rights

Charter s. 8(3) provides that everyone has ‘the right to equal and effective protection against discrimination.’ Discrimination includes discrimination on the basis of martial status (including being a domestic partner) and sexual orientation. Charter s. 7(2) provides that human rights may be ‘subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society.’ Charter s. 32 requires the interpretation of statutory provisions compatibly with human rights ‘so far as it is possible to do so’.

The Committee notes that the Bill extends the pension entitlements of constitutional and judicial officers’ spouses and children to those officers’ ‘partner[s]’ and their children. The Committee also notes that clauses 3 (inserting a new section 5A into the Constitution Act 1975) and 9 (inserting a new section 3AA(1) into the County Court Act 1958) generally define ‘partner’ (in para. (b) of the definition) to mean an officer’s ‘spouse or domestic partner’. The Committee further notes that under clauses 22 and 23 (if the Relationships Bill 2007 is enacted), the definition of ‘domestic partner’ will include a person in a registered relationship with the officer.

The Statement of Compatibility remarks that the Bill’s amendments:

positively engage sections 8(2) and (3) of the charter. They remove discrimination on the basis of gender, marital status and sexual orientation and ensure that de facto and same-sex partners of Victorian constitutionally protected officers are afforded the same rights and entitlements as married spouses.

The Committee considers that the Bill generally promotes the Charter rights of domestic partners of constitutional and judicial officers against discrimination on the basis of marital status.

However, the Committee further notes that clauses 3 and 9 define ‘partner’ differently (in para. (a) of the definition) in the case of an officer ‘who became entitled to benefits under [the Constitution Act 1975 or the County Court Act 1958] before the commencement’ of those clauses. For such an officer, the pension entitlements previously available to the officer’s spouse and children will now be available to:

(i) the [officer]’s husband, wife, widower or widow; or

(ii) a person of the opposite sex who, though not married to the [officer], in the opinion of the Minister lives with the [officer], or lived with the [officer] at the date of the [officer’s] death, on a bona fide domestic basis as the [officer’s] husband or wife and to such a person’s children. The Committee observes that this definition extends entitlements to officers’ opposite-sex domestic partners and their children, but not their same-sex domestic partners and their children. The Committee considers that para. (a) of the definition of partner in clauses 3 and 9 therefore engages the Charter rights of those officers and their partners not to be discriminated against on the basis of their sexual orientation.

The Statement of Compatibility does not address para. (a) of the definition of partner in clauses 3 and 9, but the Explanatory Memorandum remarks that the definition ‘is consistent with that used in section 10 of the Parliamentary Salaries and Superannuation Act 1968.’ The Committee observes that that definition was introduced by the Statute Law Amendment (Relationships) Act 2001 at a time when opposite-sex domestic partners of members of parliament were entitled to a pension. By contrast, the present pension for constitutional and judicial officers is limited to married partners. Therefore, unlike s. 10 of the Parliamentary Salaries and Superannuation Act 1968, which did not change pension entitlements for former members of parliament, para. (a) of the definition of partner in clauses 3 and 9 changes the pension entitlements of former constitutional and judicial officers, making them identical to the pre-2001 entitlements of members of parliament.

The Committee also observes that the terms ‘husband, wife, widow or widower’, ‘person of the opposite sex’ and ‘as the person’s husband or wife’ contained in para (a)(i) are gender-specific words that may be less amenable to reinterpretation to include same-sex partners under Charter s. 32 than the gender-neutral word ‘spouse’ that para (a)(i) replaces: see Quilter v Attorney-General [1998] 1 NZLR 523, 580. The Committee further observes that whereas domestic partners of officers covered by para. (b) of the definition of partner in clauses 3 and 9 will (if the Relationships Bill 2007 is enacted) be able to prove their future entitlement to a pension (i.e. their status as a domestic partner of an officer when the officer dies) by registering their relationship with that officer, similarly-placed opposite-sex partners of officers covered by para. (a) will not be able to do so. The Committee additionally observes that the scope of para (a) is uncertain, as it is not clear whether or not the phrase ‘became entitled to benefits under this Act’ applies to officers who died in office (rather than retiring or resigning) or to current officers who are entitled to salaries under the Constitution Act 1975 or the County Court Act 1958.

Whilst the Committee considers that para. (a)(ii) of the definition of partner in clauses 3 and 9 promotes the rights of opposite-sex domestic partners of former constitutional and judicial officers to equal protection of the law without discrimination on the basis of marital status, it denies the same protection to equivalently placed same-sex domestic partners. The Committee notes that the Statement of Compatibility does not provide any justification that would satisfy the requirements of Charter s. 7(2) for excluding one group of domestic partners from protection simply on the basis of their sexual orientation.

The Committee considers that para. (a)(ii) of the definition of partner in clauses 3 and 9 may be incompatible with Charter s. 8(3).

The Committee resolves to seek further clarification from the Attorney-General as follows:

1. What officers are covered by para. (a) of the definition of partner in clauses 3 and 9? In particular:

a. If an officer died while in office, did he or she ever ‘become entitled’ to a benefit under the Act?

b. Does ‘benefit under the Act’ include a salary entitlement under the Act?

2. Why does para. (a)(i) of the definition of partner in clauses 3 and 9 use the terms ‘husband’, ‘wife’, ‘widower’ and ‘widow’ instead of the word ‘spouse’?

3. Should para. (a)(ii) of the definition of partner in clauses 3 and 9 be extended to include same-sex domestic relationships?

4. Should para. (a)(ii) of the definition of partner in clauses 3 and 9 be extended to include registered relationships (if the Relationships Bill 2007 is enacted)?

Pending the Attorney-General’s response, the Committee draws attention to para. (a) of the definition of partner in clauses 3 and 9.

Keywords: Independence of the courts – Marital status discrimination – Removal of existing pension entitlements for partners of constitutional and judicial officers where partner becomes a domestic partner of another person – Partner’s pension subject to continuing review

Charter s.8(3) provides that everyone has ‘the right to equal and effective protection against discrimination’. Discrimination includes discrimination on the basis of martial status (including the status of being a domestic partner.) Charter s. 24(1) provides that criminal defendants and civil litigants have the right to a decision by an ‘independent… court or tribunal.’ Charter s. 7(2) provides that human rights may be ‘subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society’.

The Committee notes that clauses 4(1)(b) & 6(2)(b) (amending ss. 7(3) & 83(2) of the Constitution Act 1975) & 10(2)(b) (amending s. 14(3) of the County Court Act 1958) provide that the pension entitlements of partners of constitutional and judicial officers cease when the partner dies, marries or ‘becomes the domestic partner of another person’. The Committee observes that this reduces officers’ pension entitlements, because the current law only provides for the partner pension to cease on death or remarriage. The Committee also observes that the pension entitlements of all partners of judicial and constitutional officers will now be subject to continued review as to whether or not their personal circumstances at any point in time fall within the definition of ‘becom[ing] the domestic partner of another person.’

The Committee observes that the Supreme Court of Canada held in R v Beauregard [1986] 2 SCR 56, [34] that:

the essence of judicial independence for superior court judges is complete freedom from arbitrary interference by both the executive and the legislature. Neither the executive nor the legislature can interfere with the financial security of superior court judges. That security is crucial to the very existence and preservation of judicial independence as we know it.

The Committee considers that clauses 6(2)(b) & 10(2)(b) may subject the financial security of Victorian superior court judges to interference by both the legislature (by reducing the existing pension entitlements of current and former judges’ partners) and the executive (by subjecting the future entitlement of judges’ partners to a pension to continued review by public servants responsible for determining their eligibility for the pension.) The Committee therefore considers that clauses 6(2)(b) & 10(2)(b) may engage Victorian litigants’ Charter right to decisions by an independent court.

The Committee also observes that entry into a new domestic relationship may have no impact on the financial circumstances of partners of deceased constitutional and judicial officers and that remaining single may impose considerable personal burdens on them. The Committee further observes that partners of members of state superannuation schemes receive their pension until death, whether or not they re-partner; however, the Committee also notes that those schemes are contributory and partner pensions are calculated in a more nuanced way than the pension schemes in the Constitution Act 1975 and County Court Act 1958. Whilst the Committee considers that clauses 4(1)(b), 6(2)(b) & 10(2)(b) may promote the Charter rights of former partners of constitutional and judicial officers who marry to equal treatment with former partners who enter into a domestic relationship, the Committee is also concerned that these clauses may infringe the rights of former partners who enter into a domestic relationship to equal treatment with former partners who remain single.

The Committee refers to Parliament for its consideration the questions of:

• whether or not clauses 6(2)(b) and 10(2)(b), to the extent that they reduce the entitlements of current and former judges and/or subject the future entitlements of judges’ partners to continued review by a public servant, are compatible with the independence of courts from Parliament and the executive; and

• whether or not clauses 4(1)(b), 6(2)(b) and 10(2)(b) discriminate against officers’ partners who enter into a new domestic relationship (in comparison to partners who do not re-partner);

• whether or not those clauses are reasonable limits on human rights according to the test in Charter s. 7(2).

The Committee makes no further comment.

Minister’s Response

Thank you for your letter of 5 February 2008 enclosing a copy of the report of the Scrutiny of Acts and Regulations Committee (the Committee) in Alert Digest No.1 of 2008 regarding the Constitution Amendment (Judicial Pensions) Bill 2007 (the Bill).

The Alert Digest report makes a number of detailed observations on the Bill which I have endeavoured to address in the attached paper.

If the Committee requires clarification of any of the matters raised in the paper, please do not hesitate to contact me or Ms Ruth Andrew of the Courts and Services Unit, Department of Justice ( 9603 9219).

ROB HULLS MP
Attorney-General

21 May 2008

ATTORNEY-GENERAL’S RESPONSE TO ISSUES RAISED BY THE SCRUTINY OF ACTS AND REGULATIONS COMMITTEE

1. INTRODUCTION

The Constitution Amendment (Judicial Pensions) Bill 2007 (the Bill) was introduced into Parliament on 4 December 2007 to:

• provide for the division of constitutionally protected pension entitlements according to the separate interest method of dividing superannuation entitlements in divorce property proceedings under the Family Law Act 1975 (Cth); and

• provide partners of constitutionally protected officers with equal entitlement to a reversionary pension, irrespective of their marital status or gender.

The Bill was passed in the Lower House with minor amendments (which do not affect the issues discussed in this paper) on 16 April 2008.

The issues raised by the Scrutiny of Acts and Regulations Committee (the Committee) in the extract from Alert Digest No. 1 of 2008 (the Digest) are directed at the Bill’s reversionary pension provisions. The Digest indicates that:

• in the Committee’s view the definition of “partner” in paragraph (a)(ii) of clauses 3 and 9 of the Bill may be incompatible with s.8 (3) the Charter of Human Rights and Responsibilities Act 2006 (the Charter), and that the Committee seeks the Attorney-General’s clarification of aspects of the definition; and

• the Committee refers to Parliament three questions involving:

° whether the Bill reduces current pension entitlements, if so whether this is compatible with the independence of the courts from Parliament;

° whether the Bill discriminates against the surviving partners of judges and other constitutionally protected officers who enter into new domestic relationships; and

° if so, whether this aspect of the Bill is a reasonable limit on human rights under Charter s.7(2).

The Bill amends a number of Acts which govern the pension entitlements of a number of constitutionally protected office-holders, including judges and masters of the Supreme Court and County Court, the Chief Magistrate, the Director of Public Prosecutions, the Chief Crown Prosecutor, Senior Crown Prosecutors, the Solicitor-General and the Governor. The Acts include the Constitution Act 1975, the Supreme Court Act 1986, the County Court Act 1958, the Attorney-General and Solicitor-General Act 1972, the Magistrates’ Court Act 1989 and the Public Prosecutions Act 1994.

For ease of reference, these pension entitlements are referred to as the “judicial pension” and the “judicial pension scheme” throughout this paper. Judges and other officers entitled to a judicial pension are referred to as “constitutionally protected officers”.

2. DEFINITION OF “PARTNER”

2.1 Matters on which clarification is sought

In its Charter Report, the Committee considers that paragraph (a)(ii) of the definition of “partner” in clauses 3 and 9 of the Bill may be incompatible with s.8(3) of the Charter and seeks clarification from the Attorney-General on the following issues:

1. What officers are covered by paragraph (a) of the definition of “partner”, in particular:

a. If an officer dies in office, did he or she ever “become entitled” to a benefit under the Act?

b. Does “benefit under the Act” include a salary entitlement under the Act?

2. Why does paragraph (a)(i) the definition of “partner” in clauses 3 and 9 of the Bill use the gender-specific terms “husband”, “wife”, “ widow” and “widower” instead of the word “spouse”?

3. Should paragraph (a)(ii) of the definition of “partner” in clauses 3 and 9 of the Bill be extended to include same-sex relationships?

4. Should paragraph (a)(ii) of the definition of “partner” in clauses 3 and 9 of the Bill be extended to include registered relationships (if the Relationships Bill 2007 is enacted)?

2.2 Definition of “partner”

The Committee has observed that paragraph (a) of clauses 3 and 9 of the Bill defines “partner” to include a married spouse or opposite-sex domestic partner. In all other cases, including those who become entitled to receive a pension after passage of the Bill, the term is defined to include married spouses, opposite-sex domestic partners and same-sex domestic partners.

The Committee considers that while use of a split definition in the Bill promotes the rights of opposite-sex domestic partners of retired officers, it raises an issue of discrimination on the basis of sexual orientation for similarly placed same-sex domestic partners, which has not been satisfactorily addressed in the Statement of Compatibility to meet the requirements of s.7(2) of the Charter.

The Bill completes the process of significant reform commenced by the Statute Law Amendment (Relationships) Act 2001, which amended a large number of Acts to recognise the rights and obligations of partners in domestic relationships irrespective of the gender of each partner.

The Act, if passed, will ensure that in future the married partners, opposite-sex domestic partners and same-sex domestic partners of constitutionally protected officers will have the same entitlements to a reversionary pension, irrespective of gender, marital status, or sexual orientation.

The Bill defines the terms “spouse”, “domestic partner” and “partner” explicitly in statute for the first time in judicial pension legislation, replacing the term “spouse” wherever used throughout the governing Acts, with the term “partner”. This definition is intended to preserve the current eligibility of partners of constitutionally protected officers, and to effect reforms to the judicial pension scheme to ensure that constitutionally protected officers and their families are not discriminated against on the basis of their marital status or sexual orientation in future.

The term “partner” has been defined in clauses 3 and 9 of the Bill to ensure that all existing reversionary judicial pension entitlements are preserved and extended to domestic partners as well as spouses. The definition is consistent with the definition of “partner” in the State Superannuation Act 1988 and the Parliamentary Salaries and Superannuation Act 1968.

Prior to the 2001 amendments, the State Superannuation Act 1988 and the Parliamentary Salaries and Superannuation Act 1968 made provision for opposite-sex domestic partners to receive a reversionary pension. By contrast, the judicial pension scheme made no such provision: reversionary pensions were only made available to surviving spouses.

Because the judicial pension legislation did not define “spouse”, it was considered that a judicial reversionary pension was available only to the surviving married spouse of a constitutionally protected officer. Advice obtained by the Department of Justice indicates that current interpretations of the term “spouse” as it applies to reversionary pension arrangements could also give (and may in fact have already given) rise to reversionary pension entitlements to the surviving partners of opposite-sex relationships. On the other hand, the availability of equivalent entitlements to persons living in same-sex relationships was probably non-existant.

Whilst the current legislation could be interpreted to apply to opposite-sex de facto relationships, it is clear that it does not apply to same-sex relationships. Given this, it cannot be said that the provision discriminates against persons in same-sex relationships. They cannot be regarded as being in the same or similar circumstances as persons in opposite-sex de facto relationships since they do not have an existing entitlement which require clarification. Further, making the legislation prospective risks interfering with existing entitlements of persons in opposite-sex de facto relationships.

On this basis, it is considered that paragraph (a) of the definition of “partner” in clauses 3 and 9 of the Bill does not operate to retrospectively provide opposite-sex partners with entitlements that did not previously exist, and accordingly achieves the same result as the 2001 amendments made to the Parliamentary Salaries and Superannuation Act 1968. On this basis, it is considered that the definition is compatible with the Charter.

2.3 Officers covered by paragraph (a) of the definition of “partner”

The various pieces of legislation establishing judicial pension schemes can be distinguished from other forms of superannuation legislation because of their non-contributory nature and their linkage to the independence of constitutionally protected officers (see below). Accordingly, the legislation and subsequent amendments include only the essential provisions necessary to provide for pension entitlements of constitutionally protected officers.

On this basis, it is considered that the expression “a person who became entitled to benefits under this Act” in paragraph (a) of the definition of “partner” means a constitutionally protected officer who became entitled to receive a pension upon their retirement, resignation or disability. The expression does not include a salary entitlement.

2.4 Use of the terms “husband, wife, widower or widow”

The Bill defines “spouse” explicitly for the first time in the governing Acts as “a person to whom the person is, or was at the time of the person’s death, married.”

The gender specific terms “husband, wife, widower or widow” are used in paragraph (a)(i) of the definition of “partner” in clauses 3 and 9 of the Bill, to specifically describe the instances of a married spouse, whether male or female, to preserve the state of eligibility that existed prior to the passage of this Bill, on the basis that marriage can only occur between opposite-sex partners at the present time.

Subsection 83(2) of the Constitution Act 1975 and the proviso in section 14(3) of the County Court Act 1958 preclude a person from entitlement to a reversionary pension where they become the spouse of the officer after their resignation or retirement. The occasion to interpret and apply the terms “husband, wife, widower or widow” as they are used in this context, would therefore not arise even in the event of legislative reform which would enable marriage between same-sex partners, because the terms relate only to persons who are the married partners of officers in receipt of a pension prior to the commencement of the Act, if passed.

On this basis the use of these terms in this context is considered reasonable.

2.5 If a constitutionally protected officer died in office, will he or she ever “become entitled” to a benefit under the Act

In the event of an officer dying in office, a reversionary pension accrues to the officer’s partner and does not form part of the deceased officer’s estate.

In this sense, a constitutionally protected officer, who dies in office, does not “become entitled” to a benefit under the Act, but rather their death gives rise to eligibility to a reversionary pension which belongs to their partner or, in some cases, their children.

2.6 Registered relationships amendments

The Committee observes that amendments consequential upon the passage of the Relationships Bill 2007 (now the Relationships Act 2008) will mean that opposite-sex domestic partners of officers who have retired prior to commencement of the Constitution Amendment (Judicial Pensions) Act 2008 (the Act) will be required to prove their entitlement under the test set out under paragraph (a)(ii) of the definition of “partner” in clauses 3 and 9 of the Bill, whereas opposite-sex domestic partners of officers who retire after the commencement of the Act will be able to prove their relationship conclusively by registering their relationship.

The Relationships Act 2008 establishes a system for registering domestic relationships and providing conclusive evidence of such relationships where recognised under Victorian law. The registration scheme being introduced by the Relationships Act 2008 will build on the recognition afforded to domestic relationships by the Statute Law Amendment (Relationships) Act 2001. The Act is not intended to affect the entitlements of domestic partners prior to 2001. As such, amendments consequential on the passage of the Relationships Act 2008 amend only the second part of the definition of “partner” wherever it is used in various Acts, to include registered domestic relationships in the term “domestic partner”.

The Committee’s observations do not identify the basis upon which this is an issue under the Charter. The Committee’s observations compare the domestic partners of officers covered by paragraph (b) of the definition with those of officers covered by paragraph (a). Any distinction drawn is on the basis of the date upon which the judicial officer became entitled to benefits under the Act, not upon marital status or any other attribute in the Equal Opportunity Act 1995 which could amount to discrimination under the Charter. Accordingly, it is considered that these proposed amendments are not inconsistent with the Charter.

3. IMPACT OF BILL ON INDEPENDENCE OF THE COURTS

3.1 Matters referred to Parliament for its consideration

The Committee has referred the following questions to Parliament for its consideration:

• whether clauses 6(2)(b) and 10(2)(b) of the Bill, to the extent that they reduce the entitlements of current and former judges and/or subject the future entitlements of judges’ partners to continued review by a public servant, are compatible with the independence of courts from Parliament; and

• whether clauses 4(1)(b), 6(2)(b) and 10(2)(b) of the Bill discriminate against officers’ partners who enter into a new domestic relationship (in comparison to partners who do not re-partner);

• whether or not these clauses place reasonable limits on the human rights in accordance with the test in Charter s.7(2).

3.2 Nature of the judicial pension

The judicial pension scheme should be distinguished from other forms of superannuation, including those established under State Superannuation Act 1988 and the Parliamentary Salaries and Superannuation Act 1968 on three grounds.

First, the judicial pension is a non-contributory defined benefit scheme. Unlike superannuation and other pension funds, a judicial pension is not “earned” as part of a “total remuneration package”. It is an entitlement created by statute and paid to those officers who meet certain statutory criteria.

Pension payments are unfunded and are sourced directly from the Consolidated Fund. To qualify for a judicial pension, an officer must have served at least 10 years in office and reached a minimum retirement age of 65 years, although for some older appointees the minimum retirement age is 60 years.

Retired officers are entitled to a fortnightly pension payable at the rate of 60% of the annual salary for the time being applicable to the office the officer held immediately before retirement. On the death of the officer, a reversionary pension is currently payable to the officer’s surviving spouse until that person’s death or re-marriage.

Secondly, the judicial pension has links to the concept of judicial independence. Together with security of tenure, the payment of adequate remuneration to judges and the protection of remuneration entitlements, helps ensure the independence of the judiciary and its reputation for impartiality.

The judicial pension structure is said to promote the reality and appearance of judicial independence by eliminating what might otherwise be seen as a temptation for judges to tailor their approach to their post-retirement interests, to ensure the timely retirement of judges whose ability may be impaired by illness by providing appropriate disability benefits, and by ensuring that appointees to judicial office remain in office and do not trade on their positions as former judges.

Thirdly, the current judicial pension scheme should be seen in its historical context. The current scheme dates from the 1940s. The entitlement to a reversionary pension reflects the fact that the judiciary was an exclusively male preserve until the 1980s and that marriage was the only form of publicly acknowledged domestic relationship until relatively recently.

3.3 Continued review of reversionary pension entitlements (clauses 6(2)(b) and 10(2)(b))

Clauses 6(2)(b) and 10(2)(b) extend reversionary pension entitlements beyond their current availability to the surviving spouses of deceased judges or retired deceased judges. It is not accepted that clauses 6(2)(b) and 10(2)(b) reduce the entitlements of current or former judges. It is considered that these amendments are necessary to ensure consistency in the application of the availability of the reversionary pension to all domestic partners.

As noted, under current arrangements, the surviving spouse of a deceased judge or deceased retired judge is entitled to a reversionary pension until death or remarriage. The extension of this concept to the partners of deceased judges or deceased retired judges is considered reasonable given that the reversionary pension entitlement is both generous and non-contributory in nature.

It is not considered, as the Committee suggests, that the proposed arrangements interfere with the financial security of the State’s judges or their surviving partners. An entitlement to a reversionary pension is referable to the surviving partner’s relationship with the deceased judge. The original policy basis for the reversionary pension recognised the traditionally weaker financial position of a judge’s widow. This fundamental policy setting has not been altered.

The Attorney-General, as the Minister responsible for administering Part III of the Constitution Act 1975, is considered to be the appropriate person to make decisions concerning the continued payment of a reversionary pension. The Attorney-General is already responsible for making similar determinations, such as applications by members of the judiciary for retirement on the grounds of ill-health.

Similar approaches can be found in legislation dealing with property, inheritance, injury compensation and pension benefits. It can also be found in judicial pension schemes in other States where ministers are responsible for both administering the schemes and for applying statutory criteria for considering a whether a constitutionally protected officer was living in a domestic relationship for the purpose of determining an entitlement to a reversionary pension.

Such determinations are administrative in nature, intended to involve an objective and disinterested assessment of the facts of the relationship. Whilst the Minister will receive advice to assist in making the determination, due to the sensitivity of issues involved and the particular role and status of judicial officers, the power to make determinations is not delegated.

3.4 Reduction of pension entitlements and prejudicing those who choose to re-partner (clauses 4(1)(b), 6(2)(b) and 10(2)(b))

The Committee considers that amendments to provisions which provide that a reversionary pension shall cease upon their death, marriage or becoming the domestic partner of another person, will prejudice partners who wish to enter into a new relationship. The Committee also observed that the Bill will reduce officers’ pension entitlements by amending provisions which provide that a partner’s reversionary pension will cease upon their death or remarriage, to provide that it will cease upon a partner’s death, marriage or upon becoming the domestic partner of another person.

It is conceded that persons in receipt of a judicial reversionary pension who re-partner do not receive equal treatment with persons in receipt of a judicial reversionary pension who remain single. This is considered reasonable given the original purpose of the reversionary pension and the purpose of the Bill.

In this regard, the Committee’s attention is drawn to the recent decision of the House of Lords in R (Hooper) v. Secretary of State for Work and Pensions[i] which involved the timing of the removal of certain discriminatory consequences of widows’ pension available under social security legislation. The Law Lords afforded considerable deference to Parliament in this regard, noting that the discrimination in fact arose as a result of maintaining an out-of-date benefit, rather than in failing to extend it. Lord Hoffman stated:

I can quite understand that if one has a form of discrimination which was historically justified but, with changes in society, has gradually lost its justification, a period of consultation, drafting and debate must be included in the time which the legislature may reasonably consider appropriate for making a change. Up to the point at which that time is exceeded, there is no violation of a Convention right.

Similarly, whilst the policy justification for the Victorian reversionary pensions scheme may have been overtaken by societal changes, there will still be judicial officers and their wives who fall within the original purposes of the scheme. However, the fact that the reversionary pension, which has its historical origins as a widows’ pension, relates to judicial officers poses additional challenges in amending the scheme.

While the issue could be reviewed as part of a more general review of the judicial pension scheme and the nature of the entitlements available under that scheme, it would not be possible simply to replace the existing reversionary pension with a more subjective test directed at the financial hardship for which the scheme was originally established. Meanwhile, it is considered that the Bill’s overall purpose of giving domestic relationships and marriages equal recognition could not be achieved in a less restrictive manner at the present time.

At present reversionary pensions cease upon the death or subsequent marriage of a deceased constitutionally protected officer’s spouse. The Bill provides that a domestic partner’s entitlement to a reversionary pension ceases upon the death or subsequent re-partnering of the domestic spouse. That is, the Bill preserves the nature of existing constitutionally protected entitlements, while ensuring that the judicial pension scheme gives equal and consistent recognition to all domestic relationships.

Failure to amend the reversionary pension provisions would give rise to differential treatment between partners of constitutionally protected officers who choose to enter a domestic relationship (who will not be disentitled by virtue of that new relationship) and those who choose to marry (who will be disentitled by re-marriage).

On the other hand, the Committee’s observations, if adopted, could affect the particular nature of the judicial pension. As noted, the judicial pension must be distinguished from other forms of superannuation on structural and constitutional grounds. Because the judicial pension does not form part of a “remuneration package”, it cannot be assumed that the Committee’s observations concerning the rights of former partners should apply to reversionary pensions.

Accordingly, it is considered that careful consideration would need to be given to the question of whether and to what extent the Committee’s observations concerning extending the availability of the reversionary pension would impact on the nature of the judicial pension scheme, including their impact on the appropriation of the Consolidated Fund.

In these circumstances, it is considered that the proposed amendments are reasonable and do not limit human rights so as to be incompatible with the Charter.

The Committee thanks the Minister for her response.

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Courts Legislation Amendment (Associate Judges) Bill 2008

The Bill was introduced into the Legislative Assembly on 26 February 2008 by the Hon. Rob Hulls MLA. The Committee considered the Bill on 7 March 2008 and made the following comments in Alert Digest No. 3 of 2008 tabled in the Parliament on 11 March 2008.

Committee’s Comment

Charter Report

Keywords: Age discrimination – Independent court – Associate judges – Jurisdiction in hearings – Appointment and retirement ages

Charter s.8 provides that everyone is ‘entitled to the equal protection of the law without discrimination’. Discrimination includes discrimination on the basis of age. Charter s. 24 provides that criminal defendants and civil litigants have ‘the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal’. Charter s. 7(2) provides that human rights ‘may be subject under law only to such reasonable limits as can be demonstrably justified’.

The Committee notes that clauses 18 (amending s. 17 of the Supreme Court Act 1986) and 44 (inserting a new section 3BA into the County Court Act 1958) gives associate judges jurisdiction to hear all civil and criminal matters. The Committee considers that the Bill therefore may engage the Charter rights of all Victorian litigants’ to decisions by a ‘competent, independent and impartial’ court.

The Committee observes that clauses 28 (substituting s. 104 of the Supreme Court Act 1986) and 53 (substituting s. 17A of the County Court Act 1958) provide associate judges with equivalent protections against removal from office to those that apply to judges. The Committee also observes that clause 73 (inserting new sections 143 & 144 into the Supreme Court Act 1986) provides for the continuation of existing masters’ appointments and former masters’ pension entitlements. The Committee further observes that clause 36 (substituting s. 105 of the Supreme Court Act 1986) only permits the appointment of acting associate judges when a current associate judge is ‘absent or temporarily unable to perform the duties of office’, rather than the wider circumstances permitted by s. 80D of the Constitution Act 1975 (in relation to judges) or the existing s. 105 (in relation to masters.) The Committee therefore considers that the Bill is compatible with Victorian litigants’ Charter right to decisions by an independent court.

The Committee also notes that clauses 28 (substituting s. 104 of the Supreme Court Act 1986) and 53 (substituting s. 17A of the County Court Act 1958) prevent the appointment of people over seventy as associate judges and generally provide that the appointments of associate judges cease when they turn seventy. The Committee considers that clauses 28 and 53 may limit potential and actual associate judges’ Charter right to equal protection of the law without discrimination on the basis of age.

The Statement of Compatibility remarks that this limitation:

…ensures that associate judges are competent and maintains public confidence in the judiciary while preserving the independence of the judiciary and minimising intrusive performance evaluations of associate judges by the executive.

The Committee observes that the Supreme Court of Canada, in a different context, has held that a mandatory retirement age is a reasonable limit on equality rights for employees who otherwise have been given tenured positions to further their independence (Mckinney v University of Guelph [1990] 3 SCR 229.) The Committee therefore considers that clauses 28 and 53 are a reasonable limit on the Charter’s right against age discrimination according to the test set out in Charter s. 7(2).

The Committee further notes that the Statement of Compatibility does not identify by clause or section number any of the provisions it discusses. The Committee reiterates its view, stated in Alert Digest No. 14 of 2007, that –

‘the absence of express references to clause or section numbers in relation to a complex Bill may render the statement of compatibility incapable of informed consideration by members of Parliament.’

The Committee draws attention to its Practice Note No. 2 concerning the content of Statements of Compatibility and the Committee’s practice in reporting on them where the Committee considers that they are inadequate or inaccurate.

The Committee will raise this concern with the Minister.

Minister’s Response

Thank you for your letter dated 11 March 2008, enclosing Alert Digest No. 3 of 2008 of the Scrutiny of Acts and Regulations Committee ('the Committee'), which was tabled in the Parliament on that day.

I note that the Committee considered that the Bill is compatible with the right of a person charged with a criminal office or a party to a civil proceeding to have the charge or proceeding decided by a competent, independent and impartial court and that the Bill's provisions providing that appointments of associate judges cease when they are seventy are a reasonable limit on the Charter right to equal protection of the law without discrimination on the basis of age.

The Committee notes that the Statement of Compatibility does not include express references to clause numbers of the Bill, as recommended by the Committee. In the future, the Department will have regard to the Committee's recommended practice.

It is gratifying that the Committee considers that the Bill is compatible with the Charter in its substantive provisions.

A response to the Committee's comments on the Bill is attached.

ROB HULLS MP
Attorney-General

13 May 2008

Comments on the Charter Report on the Courts Legislation Amendment (Associate Judges) Bill 2008 in Alert Digest No. 3 of 2008

Charter section

Charter s. 8 provides that everyone is ‘entitled to the equal protection of the law without discrimination’. Discrimination includes discrimination on the basis of age.

It is noted that the committee considers that clauses 28 and 53 are a reasonable limit on the Charter’s right against age discrimination. The clauses prevent the appointment of people over seventy as associate judges and generally provide that the appointments of associate judges cease when they turn seventy.

Charter section

Charter s.24 provides that criminal defendants and civil litigants have the ‘right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal.’
It is noted that the Committee considers that clauses 18 and 44 of the Bill are compatible with Victorian litigants’ Charter right to decisions by an independent court. The clauses give associate judges jurisdiction to hear all civil and criminal matters.

Express references to clause or section numbers

The Committee notes that the Statement of Compatibility does not identify by clause or section number the provisions it discusses.

The Bill has, nevertheless, received informed consideration by members of Parliament.

However, the Committee’s concern is noted and accepted.

The Committee thanks the Minister for her response.

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Criminal Procedure Legislation Amendment Bill 2007

The Bill was introduced into the Legislative Assembly on 20 November 2007 by the Hon. Rob Hulls MLA. The Committee reported on the Bill in Alert Digest No. 16 of 2007 tabled in the Parliament on 4 December 2007 and sought further information from the Minister.

The Minister’s response was carried in Alert Digest No. 1 of 2008. After considering the response the Committee resolved to write to the Minister in the following terms:

The Committee thanks the Attorney-General for his response.

The Committee notes that the Attorney-General refers to empirical studies from NSW and Scotland as a basis for concluding that ‘it is possible to have sentence indications and discounts without inducing guilty pleas.’ (emphasis added.) The Committee observes that neither of those jurisdictions had (at the time of the study) a sentence indication system, such as the one proposed in clauses 5 & 7. As the Committee observed in its report, the sentence indication procedure ‘may place… defendants under heightened pressure to plead guilty.’ The Committee remains concerned that clauses 5 and 7 may be incompatible with defendants’ Charter rights not to be compelled to plead guilty and reiterates its reference of this issue to Parliament for its consideration.

The Committee also notes that that the Attorney-General’s answer to the following query from the Committee:

5. If, due to a reconstitution of the court or a successful Crown appeal against sentence, a defendant who pled guilty after a sentence indication receives a higher sentence than the one indicated, will the defendant be automatically entitled to withdraw the guilty plea? If not, will defendants be warned of this possibility at the sentence indication hearing? (emphasis added)

did not address the second question. The Committee refers to Parliament for its consideration the question of whether or not clauses 5 and 7, by not requiring that defendants to be warned of the possibility that a higher sentence than the one indicated may be imposed, is incompatible with defendant’s Charter rights to a fair hearing.

The Committee further notes that the Attorney-General, after expressing his view that clause 15, which changes court practice by removing an express option to reserve a plea after a committal, does not limit the Charter right of defendants to freedom of expression, does not address the Committee’s queries as to whether or not clause 15 falls within the Charter’s provisions for limits on freedom of expression. The Committee reiterates its view that the removal of an option to not plead at all (including the treatment of the defendant’s silence as a not guilty plea) may limit the defendant’s right not to speak. The Committee refers to Parliament for its consideration the questions of:

• whether or not clause 15 limits the Charter right not to speak

• if so, whether or not clause 15 is either:

o reasonably necessary to respect others’ rights or to protect national security, public order, public health or public morality, according to the test in Charter s. 15(3); or

o a demonstrably justified reasonable limit on defendants’ right not to speak according to the test in Charter s. 7(2)

The Committee additionally notes that the Attorney-General responds to the Committee’s concern that clause 16 (which expands the definition of the summary offence of wilful damage without retrospective effect) may be contrary to Charter s. 27(3) (which requires that people who have not yet been sentenced be eligible for a reduced penalty) by arguing that the definition of the indictable offence of damaging property should not be changed retrospectively. The Committee observes that clause 16 does not affect the definition of the indictable offence, but rather the definition of the summary offence. The Committee reiterates its view that clause 16, by not operating retrospectively, may be incompatible with the Charter right of people who damaged property to a value between $500 and $5000 and have not yet been sentenced to be ‘eligible for the reduced penalty’ that clause 16 makes available. The Committee refers to Parliament for its consideration the question of whether or not clause 16 is compatible with Charter s. 27(3).

The Committee finally notes that the Attorney-General’s response addresses in detail a number of rights engaged by the Bill that were not addressed in the Statement of Compatibility. The Committee observes that the Attorney-General has not responded to the Committee’s concerns about that Statement of Compatibility.

The Committee will write to the Attorney-General with respect to the above additional concerns.

Minister’s Response

I refer to your letter dated 28 February 2008. The Committee has noted five issues and sought my further response to these issues. The Committee’s Alert Digest No. 2 was available to members of Parliament during the course of the hearings of the Legislation Committee of the Legislative Council where the Hon. Mr Tee, as my nominee, gave evidence to the Committee, in response to questions, some of which arose from Alert Digest No. 2.

1. The Committee remains concerned that clauses 5 and 7 may be incompatible with defendants’ Charter rights not to be compelled to plead guilty and reiterates its reference of this issue to Parliament for its consideration.

The Sentencing Advisory Council (SAC) considered that one of the causes of delay in criminal proceedings arises from an accused making a decision to plead guilty at a late stage (rather than an early stage) of proceedings. The SAC found that while more than one third of all accused indicate at the conclusion of committal proceedings that they will plead guilty in the County or Supreme Courts, more than two thirds of all cases are finalised by guilty plea (SAC Discussion Paper, pp.8-9). The SAC also observed a concerning trend; the proportion of guilty pleas entered after the trial had been listed almost doubled between 2002/03 and 2004/05 (SAC Discussion Paper, p.7). This is a very large number of accused pleading guilty at a late stage in proceedings. Sentencing indications may result in more accused, who are going to plead guilty anyway, pleading guilty at an earlier stage of proceedings.

The Scottish and NSW research indicates that sentencing discounts have been effective. In those jurisdictions, more accused make their plea decision at an earlier stage because sentence discounts provide greater transparency in the sentencing process.

Sentence indication can provide even more transparency and give the accused more information which will help them make a decision about whether to plead guilty by ‘removing unwarranted concerns as to their sentence’ (SAC Report p.125)

The Council consulted with offenders to identify influences on their plea decisions and their views on sentence indications. The Council found that some offenders had the view that sentence indications would strengthen an accused’s confidence, leading to more accused pleading guilty at an early stage (SAC Report p.76). A number of offenders thought a sentence indication could be a significant help. In particular the Council noted that offenders indicated that:

• accused may ‘have a better idea of what was happening’

• some accused ‘hold out’ because of the ‘fear of the unknown’

• ‘having some indication of the sentence from the judge would assist them in planning for the future, especially if they are facing a term of imprisonment.’ (SAC Report p.79)

Therefore, sentence indications will help the accused to be better informed when making plea decisions and will not compel them to plead guilty.

2. The Committee refers to Parliament for its consideration the question of whether or not clauses 5 and 7, by not requiring that defendants to be warned [sic] of the possibility that a higher sentence than the one indicated may be imposed, is incompatible with defendant’s Charter rights to a fair hearing.

In the Magistrates’ Court (clause 5), this issue will not arise because the accused can make a de novo appeal in the County Court. A de novo appeal gives a person convicted in the Magistrates’ Court the ability to have their conviction or sentence heard again in the County Court, meaning the accused can re-enter a plea.

Regarding the higher courts (clause 7), the Committee raises two circumstances in which an accused may plead guilty and then receive a higher sentence than was indicated in a sentence indication.

First, an accused may plead guilty following an indication, but before being sentenced, the judge may die or become seriously incapacitated and therefore cannot sentence the accused.

Sentencing will usually occur within a very short time after a plea has been entered, especially where the court is already sufficiently aware of the case to have been able to provide a sentence indication. Further, this scenario will only arise if the new judge considers that an immediately servable sentence of imprisonment must be imposed but the first judge had indicated that an immediately servable sentence of imprisonment would not be imposed. This confluence of events is theoretically possible but highly unlikely. Even if a judge was contemplating such action in this scenario, the judge would need to act in accordance with the requirements of procedural fairness and any decision made by the sentencing judge would be subject to appeal processes.

The Committee’s assumption is that the accused will remain bound by their plea of guilty. In addition to being bound by the Charter of Human Rights in interpreting these provisions to ensure that the accused receives a fair trial, the court is also required to accord procedural fairness to the accused. The Supreme Court of Victoria in Brand & Hein v Parson [1994] 1 VR 252 accepted that fundamental rules of procedural fairness are implied in legislation. For example, the Court noted that:

‘Where the most severe sanction known to the criminal law is contemplated, namely the deprivation of personal liberty, a requirement of procedural fairness which alerts an appellant to his or her situation of jeopardy and enables the formulation of a response to it is easily to be implied into the relevant legislation.” (at 257).

There is no Australian jurisprudence on the specific issue raised by the Committee. However, in New Zealand the Supreme Court has indicated that procedural fairness will apply in this situation to protect the accused. For example, in the New Zealand Supreme Court case of R v Sipa (2006) 22 CRNZ 978, the court noted that where there is an appeal on sentence by the prosecution following a sentence indication, the respondent can seek to have the conviction quashed and the matter remitted to the sentencing court for the guilty plea to be vacated and a plea of guilty not entered.

Second, it is theoretically possible that the prosecution may appeal against a sentence indication, submitting that the sentencing judge was in error in not imposing an immediately servable term of imprisonment. It is very unlikely that this would ever occur because the prosecution has a veto on the sentence indication application. It is not at apparent why the DPP would agree to a sentence indication if the DPP thought that a sentence which was not immediately servable in prison would constitute an appellable error. Accordingly:

(a) if the prosecution submit to the trial court that a sentence which was not immediately servable in prison was not outside the range of appropriate sentences, and

(b) the trial court imposes such a sentence, and

(c) the prosecution appeal on the basis that the sentence was outside the range of appropriate sentences –

it is reasonable to expect that the Court of Appeal would not look upon their appeal favourably.

The discretion vested in the ultimate appellate judges to use procedural fairness, and procedural fairness principles implied in legislation, are sufficient protection built into the system.

3. The Committee refers to Parliament for its consideration the question of whether or not clause 15 limits the Charter right not to speak.

Section 15 of the Charter establishes a number of rights relating to freedom of expression. It protects the right to hold an opinion without interference; and the right to seek, receive and impart both information and ‘ideas of all kinds’ whether within or outside of Victoria, and whether orally, in writing, in print, by way of art or in another medium. The scope of the right includes things such as reporting of judicial proceedings; picketing and protesting; censorship and classification; busking; commercial expression – advertising; public servants expressing political opinions; interception of prisoner’s mail and monitoring of telephone calls; and telephone interception.

The amendment does not compel the accused to speak at all. Currently a magistrate will ask a person, after giving appropriate warnings, whether they plead guilty, not guilty or wish to reserve their plea. The amendments will mean that the magistrate no longer asks whether the accused wishes to reserve their plea.

An accused remains at liberty not to speak. If the accused does not speak, their plea will be taken to be not guilty. There is no change to the situation or consequence of a person not speaking in response to the magistrate’s questions. If a person does not speak, they will be treated as if they have pleaded not guilty, in accordance with the Charter rights concerning the presumption of innocence and according a person a fair hearing. The right to freedom of expression is not limited by this change to the questions asked by a magistrate.

Given the disclosure and testing of the prosecution case through the committal process, the accused should have sufficient information to be in a position to decide his or her plea by the end of the committal proceeding. An accused should only plead guilty if they are sure that this is the appropriate course of action. An accused can always plead not guilty if they are uncertain about what their plea should be and this does not prejudice their position.

Finally, a number of other jurisdictions in Australia, including the ACT which also has a Human Rights Act, require the accused to plead guilty or not guilty at the end of committal proceedings.

4. The Committee refers to Parliament for its consideration the question of whether or not clause 16 is compatible with Charter s. 27(3).

As I noted in the first three paragraphs of my response in January this year concerning the summary offence of wilful damage (found on page 14 of Attachment A to the response), it would limit Charter rights if the amendment to this offence applied retrospectively in the manner raised by the Committee. The approach adopted in the Bill does not operate retrospectively, as is required by the Charter.

The amendment to the threshold of the value of the property under which a person can be charged with the offence of wilful damage alters a key element of that offence. The rights against retrospective criminal liability in the Charter and in the common law dictate that where the substance of an offence is amended, that amendment must not apply retrospectively. During the drafting of the Bill, Parliamentary Counsel also advised that any other approach would be inappropriate.

If the accused is charged with the indictable offence of damaging property intentionally, the accused has a right to trial by jury. If the amendment operated retrospectively, it would retrospectively remove the right to trial by jury.

5. Statement of Compatibility

The Committee states that my response in January 2008 addresses in detail a number of rights engaged by the Bill that were not addressed in the Statement of Compatibility.
As I indicated in my letter of January 2008, criminal procedure is complex and much of my response was devoted to explaining the context in which reforms contained in the Bill would operate. The vast majority of my response was devoted to explaining in detail the operation of criminal procedure and the criminal justice system. Having done so, in many instances this indicated that Charter rights were either not engaged or were engaged but not limited. In my view the Bill does not limit human rights in any way and the Statement of Compatibility more than adequately addressed the human rights issues involved with this Bill.

I trust that this addresses the Committee’s concerns.

Hon Rob Hulls MP,
Attorney-General

7 May 2008

The Committee thanks the Minister for her response.

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Justice Legislation Amendment Bill 2008

The Bill was introduced into the Legislative Assembly on 15 April 2008 by the Hon. Bob Cameron MLA. The Committee reported on the Bill in Alert Digest No. 5 of 2008 tabled in the Parliament on 6 May 2008 and sought further information from the Minister.

Committee’s Comment

Charter Report

Cruel, inhuman or degrading treatment – Non-consensual medical treatment – Movement – Privacy – Religion and belief – Expression – Association – Liberty – Extensions to extended supervision order scheme – Adult Parole Board may give an offender any directions it considers necessary to ensure that the community is adequately protected by monitoring the offender – Where discretion to limit many human rights exempted from natural justice, statutory review procedures and human rights obligations – Whether reasonable limit

Charter s. 7(2) provides that human rights may be ‘subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society’. Charter s.32(1) requires that Victorian legislation be ‘interpreted in a way that is compatible with human rights’ ‘so far as it is possible to do so consistently with their purpose’. Charter s. 38(1) provides that ‘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.’

The Committee notes that existing ss.15 & 16 of the Serious Sex Offenders Monitoring Act 2005 either require or permit people who are the subject of extended supervision orders to comply with a large number of conditions, including being required to:

• obey all lawful instructions and directions of the Secretary to the Department of Justice ‘that the Secretary considers necessary to ensure the effective and efficient implementation and administration of the conditions of the order’ (ss. 15(3)(g) & 16(1))

• obey all lawful instructions and directions of the Adult Parole Board ‘that the Board considers necessary to achieve the purposes’ of ensuring ‘that the community is adequately protected by monitoring the offender’ and promoting ‘the rehabilitation, and the care and treatment, of the offender’ (ss. 15(2), 15(3)(h) & 16(2))

The Committee also notes that clause 17, inserting a new section 25H into the Act, provides that ss. 15 & 16 apply with respect to interim extended supervision orders. The Committee further notes that clause 24, amending the Schedule to the Act, provides that various sex offenders whose victims were adults and offenders convicted of sexual servitude or deceptive recruiting for commercial sexual services are eligible for extended supervision orders and, hence, may become subject to ss. 15 & 16.

The Committee considers that clauses 17 and 24 may limit the following Charter rights of offenders who may now be subject to an interim or standard extended supervision order:

Charter s. 10(c): prohibition on non-consensual medical treatment: see s. 16(3)(d), permitting the Adult Parole Board to make directions as to ‘treatment programs or activities that the offender must attend and participate in’.

Charter s. 12: right to move freely within Victoria: see s. 15(3)(b), which requires the offender to ‘attend at any place as directed by the Secretary or the Adult Parole Board for the purpose of supervision, assessment or monitoring’; and ss. 16(3)(b) & (c), which permit the Adult Parole Board to make directions as to ‘times at which the offender must be at home’; and ‘places or areas that the offender must not visit’.

Charter s. 12: right to enter or leave Victoria: see s. 15(3)(f), which provides that the offender must ‘not leave Victoria except with the permission of the Secretary’.

Charter s. 12: right to choose where to live: see s. 15(3)(e), which provides that the offender must ‘not move to a new address without the prior written consent of the Secretary’ and ss. 16(3)(a), (b) & (c), which permit the Adult Parole Board to make directions as to ‘where the offender may reside’

Charter s. 13(a): right not to be subject to certain interferences with privacy: see ss. 16(3)(h) & (i), which permit the Adult Parole Board to make directions as to ‘forms of monitoring (including electronic monitoring) of compliance’ and ‘personal examinations by a medical expert for which the offender must attend’.

Charter s. 14(2): right to demonstrate his or her religion or belief as part of a community: see s. 16(f), which permits the Adult Parole Board to make directions as to ‘community activities in which the offender must not engage’.

Charter s. 15(2): right to freedom of expression: see Fletcher v Secretary to the Department of Justice [2006] VSC 354, where the Adult Parole Board imposed a condition barring an offender from using or accessing the internet.

Charter s. 16(2): right to freedom of association with others: see s. 16(3)(h), which permits the Adult Parole Board to make directions as to ‘persons or classes of persons with whom the offender must not have contact’.

Charter s. 21(1): right to liberty: see all of ss. 15 & 16.

The Statement of Compatibility argues that clauses 17 and 24 do not infringe the rights to privacy and liberty (as the intrusions and deprivations are not arbitrary) and are compatible with the remaining rights because of the operation of Charter s.7(2). The Statement of Compatibility also argues that the clauses promote the Charter rights of potential victims of eligible offenders to equality, life, privacy, liberty and security.

Whilst the Committee considers that the purposes in s.15(2) of the Act and the Charter rights of potential victims are compelling reasons to limit eligible offenders’ rights in accordance with the Charter’s limitation provisions, the Committee is concerned that the discretion given to the Adult Parole Board as to whether those rights will be limited in particular cases is extremely broad.

The Statement of Compatibility remarks:

Whilst these rights may be limited in individual cases, it is necessary to have a broad power to impose such restrictions, tailored to the individual circumstances, in order to protect the community.

The extent of this limitation would need to be assessed on a case-by-case basis, having regard to the specific instructions and directions given by the APB in relation to the personal circumstances of the offender. However, it is fair to presume that the limitation that may occur in respect of this right would be reasonable, vis-à-vis s7 of the Charter, given that in order to be lawful the limitation would need to be for an important and legitimate purpose (i.e. those set out in s15(2) of the SSOMA) and any derogation from these purposes would render the decision ultra vires. It is also worthwhile noting that the breadth of the discretionary powers… is necessary in order to tailor instructions to particular offenders; and the individual risks they represent. Bearing in mind that these are discretionary powers, it is important to recognise that the limitation of the right will be curtailed by principles of administrative law. That is, any decision that was in fact disproportionate to an offenders individual risks could be challenged on the grounds that it was either incompatible with human rights (see s32 of the Charter); or unreasonable (broad ultra vires) or an abuse of discretionary power.

The Committee observes that the two purposes in s.15(2) are conflicting, so that the capacity for either of them to limit the Adult Parole Board’s authority is limited. The Committee also observes that the interpretation rule in Charter s.32 is limited by the requirements that any new interpretation be both ‘possible’ and ‘consistent with the purposes’ of the statute. The Committee further observes that the Supreme Court’s jurisdiction under the common law to overturn a decision of the Adult Parole Board under s. 16(2) is ‘limited’, ‘supervisory’, ‘is not concerned with the merits of the decision under review’ and ‘is not concerned with whether the decision was fair or correct’: Fletcher v Secretary to the Department of Justice [2006] VSC 354, [36]-[37].

The Committee additionally observes that the Adult Parole Board is:

• not bound by the rules of natural justice (s.69, Corrections Act 1986)

• not subject to statutory appeal to the Court of Appeal (s. 36(1), defining ‘relevant decision’, in Part 3 of the Serious Sex Offenders Monitoring Act 2005)

• not subject to review by VCAT (s.3 defining ‘tribunal’, Administrative Law Act 1978)

• not subject to ombudsman inquiries (including human rights inquiries) (s.13(3)(aa), Ombudsman Act 1973)

• not currently a public authority under the Charter (s.4(a), Charter of Human Rights and Responsibilities (Public Authorities)(Interim) Regulations 2007).

The latter means that the Adult Parole Board is not currently required to act compatibly with Charter rights or to consider relevant Charter rights when making its decisions.

The Committee will seek further information from the Minister as follows:

1. Why are the Adult Parole Board’s decisions under s. 16(2) not subject to the rules of natural justice or to any statutory review or inquiries?

2. Why is the Adult Parole Board exempted from the obligation to act compatibly with human rights and to consider relevant human rights when making decisions under s. 16(2)? Will the exemption in the Charter of Human Rights and Responsibilities (Public Authorities) (Interim) Regulations 2007 be renewed in 2009?

Pending the Minister’s response, the Committee refers to Parliament for its consideration the question of whether or not clauses 17 and 24, by expanding the operation of the Adult Parole Board’s discretion under s. 16(2) to restrict many Charter rights of offenders who are the subject of extended supervision orders, without that discretion being subject to natural justice, statutory review or the Charter’s human rights obligations, are reasonable limits on those Charter rights under Charter s. 7(2).

Retrospective criminal laws – Right not to be tried or punished more than once – Retrospective extension of extended supervision order scheme – Whether extended supervision order is punishment or penalty – Whether reasonable limit

Charter s. 7(2) provides that human rights may be ‘subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society’. Charter s. 26 provides that a person ‘must not be tried or punished more than once for an offence in respect of which he or she has already been finally convicted’. Charter s.27(2) bars the imposition of a ‘penalty for a criminal offence that is greater than the penalty that applied to the offence when it was committed’.

The Committee notes that clause 23, inserting a new section 51(8) into the Serious Sex Offenders Monitoring Act 2005, provides that the amendments made by clause 24 ‘apply on and after the commencement of clause 23 whether a person was sentenced in respect of a relevant offence before, on or after that commencement’. The Committee also notes that clause 24 extends the definition of ‘relevant offences’ for the purposes of extended supervision orders to include offenders whose victims are adults and offenders who commit the offences of sexual servitude and deceptive recruiting for commercial sexual services. The Committee further notes that clause 23 prevents the application of s. 114 of the Sentencing Act 1991, which would otherwise ensure that any amendment that increased a penalty did not apply retrospectively.

The Committee observes that the effect of clause 23 is that some finally convicted offenders will now be potentially subject to extended supervision orders, even though they were not subject to them when they were convicted. The Committee also observes that the effect of clause 23 is that some offenders who committed offences at a time when those offences were not relevant offences for the purposes of extended supervision orders may in the future be subject to extended supervision orders in respect of those offences. The Committee considers that, to the extent that an extended supervision order is a punishment or a penalty, clause 23 may limit the Charter rights of such offenders against double jeopardy and retrospective increases in penalties.

The Statement of Compatibility argues that extended supervision orders are neither punishments nor penalties as the purposes of extended supervision orders ‘do not include punishment’ and:

The authority to impose an ESO is not drawn from what was done in the sentencing of the offender; rather the Act simply takes as the factum of the application for an ESO the status of the offender as a person who is serving a custodial sentence…

The Committee observes that the meaning of ‘punishment’ and ‘penalty’ in the Charter is not determined by any Victorian law. The Statement of Compatibility argues that its view that extended supervision orders are not punishments or penalties is supported by judgments of the High Court interpreting Chapter 3 of the Commonwealth Constitution. However, the Committee observes that the High Court’s judgments concerned the separation of powers and are ‘not concerned with wider issues’, including ‘substantial questions of civil liberty’: Fardon v Attorney-General (Qld) [2004] HCA 46, [3] (per Gleeson CJ).

The Statement of Compatibility remarks:

The approach of the High Court is consistent with the approach of Courts in a number of other jurisdictions under human rights legislation where protective measures are imposed upon persons who have been convicted of certain offences, including sex offenders.

The Committee observes that decisions of the United States Supreme Court and the United Kingdom courts that held that somewhat similar schemes were not punishments turned on a finding that the relevant proceedings for imposing the supervision orders were civil, rather than criminal, proceedings. However, s. 26 of the Serious Sex Offenders Monitoring Act 2005 expressly provides that proceedings for an extended supervision order are ‘criminal in nature’.

The Committee also observes that New Zealand’s Attorney-General reported to that nation’s Parliament that a bill to enact an extended supervision scheme that was very similar to Victoria’s ‘should be viewed as “punishment” for the purposes of’ the double jeopardy provision of the New Zealand Bill of Rights Act 1990 (Report of the Attorney-General under the New Zealand Bill of Rights Act 1990 on the Parole (Extended Supervision) and Sentencing Amendment Bill but c.f. the report of the New Zealand Parliament’s Justice and Electoral Committee, noting that ‘[i]t is possible to consider retrospective application of the extended supervision regime not to be “punishment”.)

The Committee further observes that New Zealand’s Court of Appeal recently held that the same legislation, now enacted as Part 1A of the Parole Act 2002 (NZ), ‘amounts to punishment’ for the purposes of the New Zealand Bill of Rights Act’s provisions on retroactive penalties and double jeopardy: Belcher v Chief Executive of the Department of Corrections [2006] NZCA 262, [49]. At para [47] of that judgment, the Court of Appeal listed fourteen characteristics of the New Zealand extended supervision order regime that supported its conclusion. The Committee observes that the Serious Sex Offenders Monitoring Act 2005 matches eleven of those fourteen characteristics and that the three differences are arguably minor. In particular, whereas the New Zealand Act permits an offender to be placed in home detention, the Victorian Act permits an offender to be told where to reside (including living within the perimeter of a prison) and when to be at home.

The Committee therefore considers that clause 23 may limit the Charter rights of some past offenders not to be subject to double jeopardy or retrospective increases in penalty. The Committee observes that the question of whether or not clause 23 is compatible with human rights may therefore depend on whether or not that clause satisfies the test for reasonable limits on rights set out in Charter s. 7(2). The Committee also observes that the Statement of Compatibility does not address this question.

The Committee further observes that the New Zealand Attorney-General’s view (in the report mentioned above) is that the New Zealand extended supervision order regime ‘is not capable of justification under’ New Zealand’s equivalent to Charter s.7(2). She remarked that individuals who have already been sentenced:

may well have made decisions about how to plead to charges they faced on the basis that the only punishment they were thereby liable to was a term of imprisonment (of possibly relatively short duration – a significant factor if the defendant had been remanded in custody pending trial.)

The Committee additionally observes that the New Zealand courts are yet to determine whether or not the New Zealand extended supervision regime is compatible with the New Zealand Bill of Rights Act 1990.

The Committee refers to Parliament for its consideration the questions of –

• whether or not extended supervision orders are penalties or punishments; and

• if they are, whether or not clause 23’s retrospective application of the extended supervision order scheme to past offenders who committed sexual crimes against adults and to past offenders who committed the crimes of sexual servitude and deceptive recruiting for commercial sexual services is a reasonable limit on those offenders’ Charter rights against double jeopardy and retrospective penalties.

Statement of Compatibility – References to court decisions – Further explanation where arguable that a right is limited

The Committee recalls its Practice Note No. 2, which states:

The Committee has determined that it will characterise a Statement of Compatibility as a form of explanatory memoranda equivalent in status to an explanatory memorandum accompanying a Bill.

The Committee considers that the provision to Parliament of reasonable explanatory material is critical to the Parliament’s exercise of legislative power in an informed manner.

The Committee notes that the Statement of Compatibility, when addressing the question of whether or not an extended supervision order is a penalty, stated that a view that orders are not punishments or penalties:

is consistent with the approach of Courts in a number of other jurisdictions under human rights legislation where protective measures are imposed upon persons who have been convicted of certain offences, including sex offences.

The Committee observes that the recent unanimous decision of five judges of New Zealand’s Court of Appeal in Belcher v Chief Executive of the Department of Corrections [2006] NZCA 262 held that a very similar regime for extended supervision orders was a punishment for the purposes of very similar human rights provisions.

Whilst the Committee acknowledges that Statements of Compatibility are not intended to be read by lawyers and that views can reasonably differ on the interpretation and significance of relevant legal authorities, the Committee feels that, where a general claim is made about the approach of ‘Courts in a number of other jurisdictions under human rights legislation’ to a particular question, the Statement should also draw Parliament’s attention to any recent decision of a senior court in a significant comparative jurisdiction concerning similar legislation that is contrary to the approach described. The Committee therefore considers that the Statement should have addressed the Belcher decision in its discussion of the compatibility of the bill with Charter ss. 26 and 27(2).

The Committee also notes that the Statement, having concluding that extended supervision orders are not punishments or penalties, did not address whether or not, in the event that Parliament considered that the orders were punishments or penalties, penalties, their retrospective application to certain past offenders was a reasonable limit on the Charter rights of those offenders against double jeopardy and retrospective penalties. The Committee observes that, for Parliament to make an assessment of whether or not a provision is compatible with human rights, it is important that the Statement of Compatibility explain whether or how a provision that arguably limits a right is a reasonable limit under Charter s. 7(2).

The Committee recalls its Alert Digest No. 15 of 2007 where, in response to Ministerial correspondence arguing that a traffic offence hearing was not a ‘criminal proceeding’ for the purposes of Charter s. 25(2), the Committee stated:

The Committee considers that, where a provision of a Bill engages or infringes Charter s.25(2) with respect to a matter that even arguably fits the definition of a criminal offence, the Statement of Compatibility should address whether and, if so, how that provision is compatible with Charter ss. 24 and 25(2).

The Committee is of the opinion that a similar approach should be taken to the words ‘punishment’ and ‘penalty’ in Charter ss. 26 and 27.

The Committee therefore considers that, where a provision engages or infringes Charter ss. 26 and 27 with respect to a matter that even arguably fits the definition of a ‘punishment’ or a ‘penalty’, the Statement should address whether and, if so, how that provision would satisfy the test in Charter s.7(2).

The Committee will write to the Minister expressing its concerns about these aspects of the Statement of Compatibility.

The Committee makes no further comment.

Minister’s Response

Thank you for your letter of 7 May 2008 in which you seek advice in relation to amendments to the Serious Sex Offenders Monitoring Act 2005 (SSOMA) contained in the Justice Legislation Amendment Bill 2008 (the Bill).

As you would be aware, the Bill amends the SSOMA principally to expand the offences listed in its Schedule to include serious sex offences against adult victims; and to provide for the making of interim extended supervision orders. The Bill also allows for additional assessment reports to be made in respect of offenders who are eligible for an extended supervision order (ESO); and clarifies the powers of the Court of Appeal.

The Government appreciates the careful attention the Committee has given to this Bill, and acknowledges the valuable role the Committee plays in assisting the Parliament in its deliberations on these important matters.

I now turn to each of the questions and concerns expressed by the Committee in its Alert Digest No. 5 of 2008, as tabled in Parliament on 6 May 2008.

1. Are extended supervision orders penalties or punishments?

It is recognised that the scheme of the SSOMA imposes some significant restrictions on the post-sentence lifestyle of serious sex offenders who are subject to an ESO. However, such restrictions serve a legitimate and non-punitive purpose, which is the protection of the community. The scheme is also flexible enough to allow for a careful balancing of offenders’ interests against the interests of the community in requiring such protection, so that any restrictions imposed on offenders are tailored and proportionate.

Relevance of Belcher v Chief Executive of the Department of Corrections

The Committee makes a number of observations regarding the judgment of the New Zealand Court of Appeal in Belcher v Chief Executive of the Department of Corrections [2006] NZCA 262 (Belcher), and criticises the Statement of Compatibility for failing to make reference to that judgment.

The issue of whether a scheme providing for extended supervision of sex offenders amounts to a ‘penalty’ for the purposes of s27 of the Charter of Human Rights and Responsibilities Act 2006 (Charter), or a ‘punishment’ for the purposes of s26 of the Charter, is a complex legal question.

In considering this issue the Statement of Compatibility gives primacy to the jurisprudence of the High Court of Australia, and in particular, that which is provided by Lim’s case (supra) and Fardon v Attorney-General for the State of Queensland [2004] HCA 46 (Fardon). The latter has been treated as the most authoritative judgment on this issue, given that the Court considers relevant human rights issues in the context of post-sentence management of high risk sex offenders.

The Statement of Compatibility also recognises that the approach of the High Court in Fardon is in a constitutional context, and therefore considers whether that approach would still be appropriate under a statutory human rights instrument. Irrespective of that context, it remains that a number of judges addressed the issue of whether the relevant law was punitive or protective in nature. Callinan and Heydon JJ considered that:

the Act … is intended to protect the community from predatory sexual offenders. It is a protective law authorising involuntary detention in the interests of public safety. Its proper characterisation is as a protective rather than a punitive enactment.

This authoritative analysis is directly relevant to any consideration of a post-sentence supervision scheme in Victoria in respect of high-risk sex offenders.

In accordance with s32 of the Charter, in drafting the Statement of Compatibility, regard has also been had to the jurisprudence of the United Nations Human Rights Committee; and courts in Canada, the United Kingdom, Europe and the United States, wherein schemes for supervision and/or detention of high risk sex offenders have been considered. These jurisdictions also provide compelling commentary on other types of schemes which impose significant restrictions on individuals outside of the criminal justice system. What emerges from this jurisprudence is that although each scheme must be assessed on its own merits, in its characterisation of whether a scheme is punitive, the High Court of Australia has taken an approach that is consistent with the courts in other jurisdictions, where such schemes have been considered under human rights instruments.

On the other hand, the judgment of the New Zealand Court of Appeal in Belcher takes a different approach and reaches a different result from these courts. That judgment considers the Extended Supervision scheme that operates in New Zealand, which can involve home detention. When enacting the legislation, it is noted that the Attorney-General tabled a report in Parliament in which she concluded that the scheme amounted to punishment and was therefore inconsistent with the right against double jeopardy (a view later affirmed in an interim judgment of the Court of Appeal); however in drawing such a conclusion the Attorney-General conceded there was ‘room for debate’.

The question of the compatibility of the New Zealand scheme with its human rights legislation remains to be considered by the Supreme Court of New Zealand (its superior court of appeal); while the analysis provided in the interim judgment of the Court of Appeal also conceded that the authorities from other jurisdictions, including Australia, could support a different conclusion. In taking a different approach from other jurisdictions, the Court stated that their conclusion was nonetheless ‘more properly representative of [New Zealand’s] legal tradition’.

Thus in the light of these factors, in my view the most persuasive jurisprudence on the human rights compatibility of any Victorian post-sentence supervision scheme remains that of the High Court of Australia.

Relevance of section 26 of the SSOMA

The Committee notes that somewhat similar schemes in the United States and the United Kingdom were found to be civil. However, s26 of the SSOMA expressly provides that proceedings for an extended supervision order are ‘criminal in nature’. This is ‘except as otherwise provided by the Act’.

The principal reason this provision was inserted into the SSOMA, was to make clear to the courts and to the parties involved which procedures should apply to the hearing of an ESO application. The provision was not intended to describe the substance of the proceedings, nor the scheme of the SSOMA more generally.

In Kansas v Hendricks 521 US 346 the United States Supreme Court rejected the argument that the presence of procedural safeguards normally found only in criminal trials rendered the scheme criminal, rather than civil. Thomas J stated that:

The numerous procedural and evidentiary protections afforded here demonstrate that the Kansas Legislature has taken great care to confine only a narrow class of particularly dangerous individuals, and then only after meeting the strictest procedural standards. That Kansas chose to afford such procedural protections does not transform a civil commitment proceeding into a criminal prosecution.

In the Government’s view a similar approach should apply when construing s26 of the SSOMA.

2. If extended supervision orders are penalties or punishments, does the Bill’s retrospective application of the ESO scheme to past offenders who committed sexual crimes against adults represent a reasonable limitation on the rights in s26 and s27 of the Charter?

Whilst the High Court has not considered these issues under a statute such as the Charter, it has considered the issues in the context of common law principles protective of human rights, namely ‘double jeopardy’. In Fardon each of Gleeson CJ (at para 14), Gummow J (at para 74) and Kirby J (paras 163-166; 180-186) saw these common law principles as relevant. Gummow J said:

It is accepted that the common law value expressed by the term "double jeopardy" applies not only to determination of guilt or innocence, but also to the quantification of punishment. However, the making of a continuing detention order with effect after expiry of the term for which the appellant was sentenced in 1989 did not punish him twice, or increase his punishment for the offences of which he had been convicted. The Act operated by reference to the appellant's status deriving from that conviction, but then set up its own normative structure. It did not implicate the common law principle in the same way as, for example, the conferral by statute of a right in the prosecution to appeal against sentence.

As explained in the Statement of Compatibility that accompanied the Bill, and by way of analogy with the above judgment, sections 26 and 27 of the Charter are not limited by the Bill as:

a) the scheme of the SSOMA does not constitute a ‘penalty’ (see discussion above); and

b) even if it could be characterised as a ‘penalty’, this would not be ‘for’ the previous offence; rather, the authority of the courts to impose an ESO on a particular offender is derived by way of reference to the separate normative structure of the SSOMA.

If the broader, New Zealand approach to what constitutes a ‘penalty’ were adopted in Victoria, the New Zealand Court of Appeal has itself recognised that the public interest served by these provisions may lead to a conclusion that they are reasonable limitations on the rights against retrospective penalties and double jeopardy.

3. Are ss16(3A) and (3B) of the SSOMA punitive or preventative and rehabilitative?

Sections 16(3A) and (3B) are existing provisions in the SSOMA that essentially allow offenders subject to an ESO to be directed by the Adult Parole Board to reside at premises that are situated on land that is within the perimeter of a prison but does not form part of the prison (i.e. land that is de-gazetted as prison land); and that this is to be taken as residing ‘in the community’ for the purposes of the SSOMA.

The reason offenders may be directed to reside at such premises is principally to ensure that they are accommodated in such a way that ensures their safety, without compromising their supervision by Corrections Victoria, and in turn, the safety of the community. It would be inimical to these offenders’ rehabilitation if they were exposed to some of the potential dangers of residing in other accommodation in the community, particularly where they have a high profile as a serious sex offender. A direction under s16(3A) also ensures that offenders’ compliance with the mandatory conditions of an ESO (which are imposed by the courts) can be properly monitored. Such directions are therefore consistent with the purposes of the conditions of the SSOMA, set out in s15(2):

• to ensure that the community is adequately protected by monitoring the offender; and

• to promote the rehabilitation and the care and treatment, of the offender.

It is also appropriate to consider section 16(3A) and (3B) in the context of the Part of the SSOMA in which they appear, and therefore, in the light of their relationship to other directions and instructions that may be given by the Adult Parole Board under s16(3). For instance, under s16(3) the APB may give instructions or directions as to treatment and rehabilitation programs; times when the offender must be home; community activities which the offender must not engage in, and so on. When these other kinds of directions and instructions are taken into account then it is clear that s16(3A) forms part of a protective and rehabilitative scheme, and not one which is punitive.

4. Why are the Adult Parole Board’s decisions under s16(2) not subject to the rules of natural justice or to any statutory review or inquiries?

Natural justice

Section 69(2) of the Corrections Act 1986 provides that in exercising its functions (which include functions under the SSOMA) the Adult Parole Board (APB) is not subject to the rules of natural justice.

In considering the merits of this exemption, it should be noted that prisoners who are subject to the decisions of the APB are in fact still under a custodial sentence. As such, their release on parole should not be characterised as ‘a right’ but it is instead ‘a privilege’. It follows from this that offenders being considered for parole by the APB have already had the benefit of natural justice being applied to the question of their liberty by the sentencing court.

Similarly, offenders subject to an ESO have had that ESO imposed by a court following a process that accords with the principles of natural justice. The mandatory (i.e. automatic) conditions of an ESO under section 15 of the SSOMA include that they comply with any direction or instruction of the APB.

As such, the proper characterisation of the APB’s functions in regards to parole orders and the SSOMA, is that they administer decisions previously made by the courts in accordance with the principles of natural justice.

Judicial review

Other than not being bound by the rules of natural justice, the APB is in fact subject to all other traditional grounds of judicial review. For instance, a person may challenge a decision of the APB on the grounds that it had no jurisdiction to make the kind of decision it made (narrow ultra vires); that it acted unreasonably (within the meaning of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223); or abused its discretionary power or took into account a consideration that was irrelevant (broad ultra vires); and so on.

Thus the common law provides a strong safeguard against any decisions of the APB being anything other than lawful and appropriate.

Other safeguards

The composition of the APB also assists in ensuring that decisions are subject to judicial scrutiny and are therefore lawful and reasonable. That is, the APB is Chaired by a Supreme Court judge, the Honourable Justice Simon Whelan; while all in all, it has eleven judicial members, including a retired Supreme Court Judge and one current Supreme Court judge (in addition to the Chair); two retired County Court judges and two current County Court judges; the Deputy Chief Magistrate of Victoria; two current Magistrates and a retired Chief Magistrate. The Board also includes a full-time member who is also lawyer.

Additionally, the APB includes a number of community members with diverse professional and life experience, which assists in ensuring that its decisions are fair and reasonable and in accordance with community values.

Powers of Ombudsman to investigate

The reason the APB is not subject to the investigative powers of the Victorian Ombudsman is that under the Ombudsman Act 1973 (Vic), there can be no investigation of, or administrative action taken against, a body 'presided over by a Judge' (see s13 – Functions and jurisdiction). This exemption is an indication of Parliament’s view that the body in question is trustworthy in terms of making reasoned decisions that are within the bounds of the law and which are subject to judicial scrutiny.

Other grounds of statutory review

As noted by the Committee, the APB is also not subject to review under the Administrative Law Act 1978 (Vic). This Act provides an avenue of review in relation to decisions by 'tribunals', however, the definition of ‘tribunal’ under s2 of that Act excludes bodies that are 'presided over by a Supreme Court judge'. As above, this connotes that Parliament has entrusted such bodies to make reasoned decisions that are within the law and which are subject to judicial scrutiny.

5. Why is the Adult Parole Board exempted from the obligation to act compatibly with human rights and to consider relevant human rights when making decisions under s16(2)?

The Government decided to make the Charter of Human Rights and Responsibilities (Public Authorities) (Interim) Regulations 2007 to exempt the APB and the Youth Parole Board from the Charter for a period of a year in order to allow the review of the impact of the Charter on these bodies’ work; and to consider the resources that would be required to ensure their compliance with the Charter.

6. Will the exemption in the Charter of Human Rights and Responsibilities (Public Authorities) (Interim) Regulations 2007 be renewed in 2009?

The work referred to above is still underway and a decision will be made before the regulations expire on 31 December 2008.

I thank you for the opportunity to respond to the Committee’s questions.

Bob Cameron MP
Minister for Corrections

23 May 2008

The Committee thanks the Minister for her response.

Committee Room
26 May 2008

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Scrutiny of Acts and Regulations Committee
Parliament of Victoria

[i] [2005] 1 WLR 1681