Of Parole and Public Emergencies: Why the Victorian Charter Override Provision Should be Repealed

Abstract

In times of unprecedented health emergencies, when the executive is exercising extraordinary powers in order to protect the lives, health and livelihoods of people, with limited parliamentary oversight, it is opportune to reflect on how the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Charter’) accommodates such crises. Like international and comparative instruments, rights under the Charter are able to be restricted in numerous ways: via qualification, limitation, and override (or derogation or via notwithstanding provisions).

This article focuses on the override provision. Parliament has used the override power on three occasions, two of which relate to laws enacted to prevent parole being granted to two named prisoners and a category of prisoner (‘police-killers’), except in extremely limited circumstances. These examples demonstrate the interaction of the Charter provisions; illustrate the inter-institutional interactions between the judiciary, executive and parliament through dialogue-based instruments; test the transparency of and accountability for public decision-making that explicitly denies rights, and the culture of justification the Charter dialogue is supposed to engender; and exemplify the preservation of parliamentary sovereignty.

Conversely, Parliament did not override the Charter in its response to the COVID-19 pandemic. Responding to the health and consequential economic crises precipitated by COVID-19 qualify as a ‘state of emergency which threatens the safety, security and welfare of the people of Victoria’ (override) and a ‘public emergency threatening the life of the nation’ (derogation). Yet the executive and Parliament navigated the COVID-19 threat without resorting to temporarily suspending rights via an override declaration when enacting its main legislative response to the crisis – the COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic) (‘Omnibus Act’). It is curious that the executive and Parliament have twice used the override mechanism when exceptional circumstances were seemingly absent (parole), yet did not use the override mechanism were the circumstances were apparent (pandemics).

This article analyses the parole-setting uses of the Charter within the broader context of the temporary suspension of rights, against the Charter mechanisms that allow for restrictions on rights, and against the principles underlying the Charter – the retention of parliamentary sovereignty and the creation of an institutional dialogue. By way of contrast and conclusion, it highlights the curiosity between the use of the override with parole legislation and the non-use of the override with the pandemic legislation, and revisits the case for repeal of the override. Ultimately, the article offers the parole-setting case-studies as compelling evidence in support of the recommendation of the Eight-Review of the Charter to repeal the override provision.

Keywords: Victorian Charter of Human Rights and Responsibilities, Override Provisions, Human Rights Instruments, Statutory Human Rights Instruments, Human Rights, Public Emergencies, Derogation Provisions

JEL Classification: K30, K33