What are the formal requirements for Cabinet?

Ministers and Departments must consider whether or not a proposal impacts on the human rights set out in the Charter Act. The formal requirements for Cabinet are:
 

  • For Policy proposals and Approval in Principle (AIP) Cabinet submissions, a human rights impact assessment; and
     
  • For Bill at Cabinet (BAC) submissions, a statement of compatibility.

 

What is a human rights impact assessment?

Cabinet submissions must contain sufficient information to enable Cabinet to be confident that any human rights implications of the proposal have been or where necessary, will be, identified, assessed and addressed. This requires an officer to consider whether the proposal raises human rights and in particular, to examine whether any limitation on a right is reasonable and demonstrably justified under the Charter Act. The proposal may need to be modified in order to ensure compatibility. It is important to refer to the Charter Act Guidelines when assessing human rights impacts. Officers are to use a human rights assessment table, which is in the Charter Act Guidelines to inform the analysis provided to Cabinet.

The nature and extent of the human rights impact assessment that is required in preparing legislation is set out below:
 

  • AIP – for AIP of legislative proposals, officers must prepare a detailed overview of the human rights impacts of the proposal to inform the analysis provided to Cabinet. In the Cabinet submission, officers must identify which human rights issues the proposed legislation raises; whether the Department has sought advice in relation to the proposal; and whether the proposal can be developed compatibly with the Charter Act.
     
  • BAC – for final approval of Bills, a statement of compatibility must be prepared and attached to the BAC submission. The ‘Charter of Human Rights and Responsibilities impacts’ section of the submission must state whether or not the Bill is compatible with the Charter Act and refer to the attached statement of compatibility. The Submission must also include a recommendation that Cabinet approve the statement of compatibility (see below).

 

What is a statement of compatibility?

In accordance with section 28 of the Charter Act, all new Bills introduced into Parliament must be accompanied by a statement of compatibility in both Houses.

A statement of compatibility must set out whether, in the opinion of the member who is introducing the Bill, the Bill is compatible or incompatible with the human rights set out in the Charter Act. The Charter Act requires that reasons be provided in the statement to demonstrate how a Bill is compatible or otherwise to explain the nature and extent of an incompatibility.

A statement of compatibility may conclude that the Bill is incompatible with the Charter Act. This does not prevent the passage of the Bill. Nor does it necessitate use of the override provision in the Charter Act, which may only be invoked in exceptional circumstances.

Under the Charter Act, a failure to table a statement of compatibility does not affect the validity of the Act.

The statement of compatibility must conform to the template.
 

Does Cabinet approve statements of compatibility?

Cabinet approves all statements of compatibility for government Bills.

Accordingly, as indicated above, submissions for Bill-at-Cabinet must state whether or not the Bill is compatible with the Charter Act and attach the statement of compatibility as well as include a recommendation that Cabinet approve the statement.

 

What is the role of the Minister responsible for tabling the statement of compatibility?

The member of Parliament who introduces the Bill into the Legislative Assembly and the member of Parliament who introduces the Bill into the Legislative Council are each responsible for tabling the statement.

The member of Parliament’s task is to form and state an opinion about whether the clauses of the Bill are compatible with human rights and, if so, how the clauses are compatible. This requires the member of Parliament to assess whether it is possible, consistently with the purpose of the provision, to interpret it in a way that is compatible with human rights. As part of that assessment, the member of Parliament will need to consider whether any limitations placed upon a relevant right by the clause are reasonable and can be demonstrably justified in a free and democratic society. A clause will only be incompatible with the Charter Act if it limits a Charter Act right and that limitation is not supported by section 7(2) of the Charter Act. If in the member’s opinion, any part of the Bill is incompatible with human rights, the statement must set out the nature and extent of the incompatibility.

The member of Parliament must form his or her opinion in good faith and on proper consideration.

A member may request that another member table the statement on his or her behalf.

 

What are the procedures for tabling a statement of compatibility?

A separate statement must be prepared for the Legislative Assembly and the Legislative Council. The body/text of both statements is identical (unless a change is required because of an amendment made in the 1st House), however:

  • the statement must have the name and portfolio of the Member of Parliament who is introducing the Bill into the respective House;
     
  • the second paragraph in the statement must reflect the House in which the statement will be tabled.

There is no requirement for the Statement to be signed. However, the name and position of the relevant Minister must still appear at the bottom of the statement.

In conjunction with the requirements for second reading speeches, the Department, will need to arrange for the statement to be copied and delivered to Parliament. Refer to the Statement of Compatibility and Second Reading Speech Procedures issued by the Cabinet Secretariat, DPC.

The statement of compatibility is tabled immediately before the second reading speech for the Bill is given.

The Second Reading Speech includes the wording for the tabling of the statement of compatibility, namely: ‘In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, I table a statement of compatibility for the [insert title of Bill]’.

Once tabled, the statement of compatibility is automatically incorporated into Hansard and can be accessed on the Victorian Legislation and Parliamentary Documents website .

 

What is the role of the Attorney-General?

The Attorney-General has a right to intervene in any proceeding before any court or tribunal in which a question of law arises relating to the application of the Charter Act, or a question arises about the interpretation of a statutory provision in accordance with the Charter Act. The Attorney-General therefore has a special interest in the implementation of the Charter Act and the interpretation of rights set out in the Charter. The Attorney-General is briefed prior to Cabinet meetings regarding the impact of the Charter Act on legislative proposals.

If the State is a party to a proceeding in which a Charter Act issues arises, the relevant Department should notify the Human Rights Unit (HRU) immediately. The HRU will be responsible for working with the relevant Department, the Victorian Government Solicitor and, in major cases, the Solicitor-General, to advise the Attorney-General about the Charter issues and whether or not to intervene in the proceeding.

 

What is the role of the Human Rights Unit in the legislative process?

The key functions of the HRU in the legislative process are:

  • to provide expert advice to Departments regarding the interpretation of the Charter Act rights
     
  • to coordinate a consistent approach across government to the implementation of the Charter Act
     
  • to advise the Attorney-General regarding the impact of the Charter Act on legislative proposals

To ensure that Charter Act issues are identified and engaged with early in the policy and legislative development process, Departments should consult with the HRU as early as possible about legislative proposals.

Departments may provide the HRU with the human rights impact assessment table and the drafting instructions (as well as the AIP submission if drafted). The HRU may provide advice on the impact of the Charter Act on the proposal and whether it is appropriate to seek external advice concerning the compatibility of proposed provisions.

What is the role of Parliamentary Counsel?

When reviewing drafting instructions prior to lodging AIP Cabinet submissions, OCPC may refer Departments to the HRU if the proposal:

  • raises an absolute right under international law (ie s. 8(1), 9, 10, 11(1), 14, 21(8) or 27 of the Charter Act) or
     
  • limits any right in the Charter Act

To assist in this process, Departments are to provide OCPC with the human rights impact assessment table when they lodge their drafting instructions.

During the drafting process, the OCPC will assist Departments to identify human rights which are raised by legislative proposals.

Departments are required to provide the OCPC with a copy of the statement of compatibility at least one week prior to lodgement of the BAC submission at Cabinet. The OCPC will review the form of the statement of compatibility, identify omissions, and liaise with the HRU or DPC, as appropriate.

 

What if the Bill is amended?

If a Bill is amended by the 1st House of Parliament, the statement of compatibility may need to be updated before the Bill is introduced into the next House. This would only occur if the amendments raise or address human rights issues.

A member of Parliament may also wish to amend a statement of compatibility following consideration of the Bill by SARC. This may occur, for example, if the statement of compatibility failed to identify a human right identified by SARC as being raised by the Bill.


What is the role of SARC?

The Charter Act requires SARC to report to Parliament on whether a bill is incompatible with the human rights set out in the Charter Act. It is the role of SARC to form its own opinion on the compatibility of the proposed legislation.

The HRU is available to assist Departments in drafting Ministerial responses to the Committee’s reports or if appropriate, amending the statement of compatibility prior to tabling in the next House of Parliament.

To contact the Human Rights Unit, please contact

Peggy Aresti
Executive Co-ordinator of the Human Rights Unit
+61 5 8684 0859
peggy.aresti@justice.vic.gov.au