Nos. 1 to 15 of 2009 - · PDF fileNos. 1 to 15 of 2009 ... Mr Colin Brooks M lA Mr Khalil...

SCRUTINY OF ACTS AND

REGULATIONS COMMITTEE

57th Parliament

Reports to Parliament

Alert .Digests

Nos. 1 to 15 of 2009

PP No 3Sf1, Session 2006-1 0 Ordered to be printf:-;d

I

of Acts and Regulations Committee

Parliament of Victoria, Australia

Scrutiny of Acts and Regulations Committee

Reports to Parliament Alert Digests Nos. 1 to 15 of 2009

Bibliography ISBN 978 0 7311 3010 3 ISSN 1440-2947

ii

Scrutiny of Acts and Regulations Commottee

Members

Staff

Human Rights Consultant

Address

Telephone

Facsimile

Em ail

Internet

(Membership of the 56th Parliament)

Mr Carlo Carli MlA

Mr Ken Jasper M lA

Mr Neale Burgess MlA*

Mr Colin Brooks M lA

Mr Khalil Eideh MLC

Mr Telmo languiller M lA

Mr Edward O'Donohue MLC

Mrs lnga Peulich MLC

Ms Jaala Pulford MLC

Mr Ryan Smith MlA*

Mr Andrew Homer

Ms Helen Mason

Mr Simon Dinsbergs

Mrs Victoria Kalapac

Assoc. Prof. Jeremy Gans

Parliament House, Spring Street MELBOURNE VIC 3002

(03) 8682 2871

(03) 8682 2858

(Chairperson)

(Deputy Chairperson)

Senior legal Adviser

legal Adviser, Regulations

Assistant Executive Officer

Committee Administration Officer

[email protected]

www.parliament.vic.gov.au/sarc

*Note on membership: On 8 December 2009, Mr Ryan Smith MLA (Warrandyte) resigned from the Committee and Mr Neale Burgess MLA (Hastings) was appointed in his stead.

iii

Terms of Reference

The statutory functions of the Scrutiny of Acts and Regulations Committee as set out in section 17 of the Parliamentary Committees Act 2003 are -

(a) to consider any Bill introduced into the Council or the Assembly and to report to the Parliament as to whether the Bill directly or indirectly-

(i) trespasses unduly upon rights or freedoms;

(ii) makes rights, freedoms or obligations dependent upon insufficiently defined administrative powers;

(iii) makes rights, freedoms or obligations dependent upon non-reviewable administrative decisions;

(iv) unduly requires or authorises acts or practices that may have an adverse effect on personal privacy within the meaning of the Information Privacy Act 2000;

(v) unduly requires or authorises acts or practices that may have an adverse effect on privacy of health information within the meaning of the Health Records Act 2001;

(vi) inappropriately delegates legislative power;

(vii) insufficiently subjects the exercise of legislative power to parliamentary scrutiny;

(viii) is incompatible with the human rights set out in the Charter of Human Rights and Responsibilities;

(b) to consider any Bill introduced into the Council or the Assembly and to report to the Parliament-

(i) as to whether the Bill directly or indirectly repeals, alters or varies section 85 of the Constitution Act 1975, or raises an issue as to the jurisdiction ofthe Supreme Court;

(ii) if a Bill repeals, alters or varies section 85 of the Constitution Act 1975, whether this is in all the circumstances appropriate and desirable;

(iii) if a Bill does not repeal, alter or vary section 85 of the Constitution Act 1975, but where an issue is raised as to the jurisdiction of the Supreme Court, as to the full implications of that issue;

(c) to consider any Act that was not considered under paragraph (a) or (b) when it was a Bill-

(i) within 30 days immediately after the first appointment of members of the Committee after the commencement of each Parliament; or

(ii) within 10 sitting days after the Act receives Royal Assent -

whichever is the later, and to report to the Parliament with respect to that Act or any matter referred to in those paragraphs;

(d) the functions conferred on the Committee by the Subordinate Legislation Act 1994;

(e) the functions conferred on the Committee by the Environment Protection Act 1970;

(f) the functions conferred on the Committee by the Co-operative Schemes (Administrative Actions) Act

2001;

(fa) the functions conferred on the Committee by the Charter of Human Rights and Responsibilities;

(g) to review any Act in accordance with the terms of reference under which the Act is referred to the Committee under this Act.

iv

Committee Membership

Terms of Reference

Alert Digest No. 1 of 2009

Associations Incorporation Amendment Bill 2008

Bus Safety Bill2008

Criminal Procedure Bill 2008

Duties Amendment Bill 2008

Equal Opportunity Amendment (Governance) Bi112008

Fair Trading and Other Acts Amendment Bill 2008

Liquor Control Reform Amendment (Enforcement) Bill2008

Melbourne Cricket Ground Bill 2008

Occupational Health and Safety Amendment (Employee Protection) Bill2008

Resources Industry Legislation Amendment Act 2008

Salaries Legislation Amendment (Salary Sacrifice) Act 2008

Transport Legislation Amendment (Driver and Industry Standards) Act 2008

Transport Legislation General Amendments Bill 2008

Transport Legislation Miscellaneous Amendments Bill2008

Workplace Rights Advocate (Repeal) Bill2008

Ministerial Correspondence

Assisted Reproductive Treatment Bill 2008

Relationships Amendment (Caring Relationships) Bill 2008


Gambling Regulation Amendment (Licensing) Bill 2009

Serious Sex Offenders Monitoring Amendment Act 2009


Major Sporting Events Bi112009

Melbourne University Amendment Bill 2009



Major Crime Legislation Amendment Bill 2008


Bushfires Royal Commission (Report) Bill 2009

Crimes Amendment (Identity Crime) Bi112009

Electricity Industry Amendment (Premium Solar Feed-in Tariff) Bill 2009

Human Services (Complex Needs) Bill2009

iii

iv

1

2

4

9

17

18

20

22

23

24

27

27

30

33

34

36

37

38

43

44

45

51

52

57

58

61

59

70

70

73

74

V


vi

Legislation Reform (Repeals No. 4) Bill 2009 75 Statute Law Amendment (Charter of Human Rights and Responsibilities)

Bill2009 76


Primary Industries Legislation Amendment Bill2008 81

Alert Digest No. 5 of 2009 83

Children Legislation Amendment Bill 2009 84

Justice Legislation Amendment Bill 2009 85

Parliamentary Salaries and Superannuation Amendment Bill 2009 87

Planning Legislation Amendment Bill 2009 88

Road Legislation Amendment Bill 2009 89


Bus Safety Bill 2009 94 Electricity Industry Amendment (Premium Solar Feed-in Tariff) Bi112009 101

Major Sporting Events Bill 2009 102

Salaries Legislation Amendment (Salaries Sacrifice} Bill2009 106

Serious Sex Offenders Monitoring Amendment Bill 2009 1 08

Transport Legislation Amendment (Driver and Industry Standards) Bi112009 114


Appropriation (2009/201 0) Bill 2009 126

Appropriation (Parliament 2009/2010) Bill 2009 126

Classification (Publications, Films and Computer Games) (Enforcement) Amendment Bill 2009 127

Crown Land Acts Amendment (Lease and Licence Terms) Bill2009 128

Energy Legislation Amendment (Australian Energy Market Operator) Bill2009 129

Environment Protection Amendment (Beverage Container Deposit and Recovery Scheme) Bill 2009 131

Macedonian Orthodox Church (Victoria) Property Trust Bill 2009 133

State Taxation Acts Amendment Bill 2009 134 Superannuation Legislation Amendment Bill2009 134


Crimes Amendment (Identity Crime) Bill2009 137

Justice Legislation Amendment Bi112009 142


Casino Legislation Amendment Bill 2009 148

Fair Work (Commonwealth Powers) Bi112009 148

Food Amendment (Regulation Reform) Bi112009 153

Gambling Regulation Amendment Bill 2009 156

National Parks Amendment (Point Nepean) Bi112009 156


Environment Protection Amendment (Beverage Container Deposit and Recovery Scheme) Bill 2009 158

Occupational Health and Safety Amendment (Employee Protection) Bill2009 162

Statute Law Amendment (Charter of Human Rights and Responsibilities) Bill2009 165


Courts Legislation Amendment (Sunset Provisions) Bill2009 172

Human Tissue Amendment Bill 2009 172 Primary Industries Legislation Further Amendment Act 2009 174

Residential Tenancies Amendment (Housing Standards) Bi112009 175

Tobacco Amendment (Protection of Children) Bi112009 176


Energy Legislation Amendment Bill2009 181

Superannuation Legislation Amendment Bill 2009 183


Cemeteries and Crematoria Amendment Bill 2009 188 Courts Legislation Amendment (Judicial Resolution Conference) Bill2009 189

Local Government Amendment (Conflicting Duties) Bi112009 191

Racing Legislation Amendment (Racing Integrity Assurance) Bill 2009 197

Water Amendment (Non Water User Limit) Bi112009. 197


Occupational Health and Safety Amendment (Employee Protection) Bill 2009 199


Energy and Resources Legislation Amendment Bill 2009 204

Gambling Regulation Further Amendment Bill 2009 205

Justice Legislation Further Amendment Bill2009 206

Liquor Control Reform Amendment (Licensing) Bill2009 210 Local Government Amendment (Offences and Other Matters) Bi112009 211

Major Transport Projects Facilitation Bill 2009 213 Personal Property Securities (Commonwealth Powers) Bi112009 218


Courts Legislation Amendment (Sunset Provisions) Bill 2009 224

Human Tissue Amendment Bill 2009 226

Tobacco Amendment (Protection of Children) Bill 2009 230


Education and Training Reform Amendment (School Age) Bill 2009 238 Land Legislation Amendment Bill 2009 241 Valuation of Land Amendment Bill 2009 242 Victorian Renewable Energy Amendment Bill 2009 242


Courts Legislation Amendment (Judicial Resolution Conference) Bill 2009 244 Local Government Amendment (Conflicting Duties) Bi112009 247 Major Transport Projects Facilitation Bill 2009 253


Criminal Procedure Amendment (Consequential and Transitional Provisions} Bill2009 258

Land (Revocation of Reservations and Other Matters) Bi112009 264

Planning Legislation Amendment Bill 2009 (No. 2) 266

Sentencing Amendment Bill 2009 267

Statute Law Amendment (Evidence Consequential Provisions) Bill2009 270

vii


viii

Deakin University Bill2009, La Trobe University Bi112009, Monash University Bill 2009 and University of Melbourne Bill 2009 273


Fair Work (Commonwealth Powers) Bill2009 275

Local Government Amendment (Offences and Other Matters) Bill2009 279 Personal Property Securities (Commonwealth Powers} Bill 2009 282 Road Legislation Amendment Bill 2009 290

Superannuation Legislation Amendment Bill 2009 290


Electricity Industry Amendment (Critical Infrastructure) Bi112009 294

Fair Work (Commonwealth Powers) Amendment Bi112009 296

Gambling Regulation Amendment (Racing Club Venue Operator Licences) Bill2009 296

Health Practitioner Regulation National Health (Victoria} Bill 2009 297 Justice Legislation Miscellaneous Amendments Bill 2009 307 Local Government (Brimbank City Council) Bill2009 312 Parks and Crown Land Legislation Amendment (River Red Gums}

Bill2009 313 State Taxation Acts Further Amendment Bill2009 316


Road Legislation Amendment Bill2009 318


Constitution (Appointments) Bill2009 322 Education and Training Reform Amendment (Overseas Students)

Bill2009 325 Emergency Services Legislation Amendment Bill2009 326 Fire Services Funding (Feasibility Study) Bill 2009 328

Liquor Control Reform Amendment (Party Buses) Bill2009 328 Melbourne Cricket Ground and Yarra Park Amendment Bill 2009 330 Parks and Crown Land Legislation Amendment (East Gippsland) Bill 2009 332

Planning and Environment Amendment (Growth Areas Infrastructure Contribution) Bill2009 332

Serious Sex Offenders (Detention and Supervision) Bi112009 336 Summary Offences and Control of Weapons Acts Amendment Bill 2009 350 Transport Legislation Amendment (Hoon Boating and Other Amendments)

Bill2009 364


Education and Training Reform Amendment (School Age) Bill 2009 367 Health Practitioner National Health (Victoria} Bill2009 371


Consumer Affairs Legislation Amendment Bill 2009 376 Legislation Reform (Repeals No. 5) Bill 2009 382

Royal Melbourne Institute of Technology Bill2009 Swinburne University of Technology Bill2009 University of Ballarat Bill2009 Victoria UniversityBill 2009 383

Water Amendment (Entitlements) Bill 2009 384


Criminal Procedure Amendment (Consequential and Transitional Provisions) Bill2009 386

Appendices

1 -Index of Bills Reported 2008-09 393

2- Committee Comments classified by Terms of Reference 397 3 - Ministerial Correspondence 399

ix


X


3 February 2009

Associations Incorporation Amendment Bill2008 Bus Safety Bill 2008

Criminal Procedure Bill 2008 Duties Amendment Bill 2008

Equal Opportunity Amendment (Governance) Bill 2008 Fair Trading and Other Acts Amendment Bill 2008

Liquor Control Reform Amendment (Enforcement) Bill 2008 Melbourne Cricket Ground Bill 2008

Occupational Health and Safety Amendment (Employee Protection) Bill 2008 Resources Industry Legislation Amendment Bill 2008

Salaries Legislation Amendment (Salary Sacrifice) Act 2008 Transport Legislation Amendment (Driver and Industry Standards) Act 2008

Transport Legislation General Amendments Bill 2008 Transport Legislation Miscellaneous Amendments Bill 2008

Workplace Rights Advocate (Repeal) Bill2008


Assisted Reproductive Treatment Bill 2008 Relationships Amendment (Caring Relationships) Bill 2008

1


Associations Incorporation Amendment Bill 2008

Introduced Second Reading Speech House Member introducing Bill Portfolio responsibility

Background

2 December 2008 4 December 2008 Legislative Assembly Hon. Tony Robinson MLA Minister for Consumer Affairs

First enacted in 1981 the Associations Incorporation Act 1981 (the 'Act') provides a simple and inexpensive means by which unincorporated non-profit associations could obtain corporate status. The Act regulates the creation, operation and dissolution of incorporated associations, and is the most popular vehicle for the incorporation of community and non-profit groups in Victoria. At 30 June 2008, there were 34,385 incorporated associations on the register of incorporated associations.

Purpose

. [Clauses]

The Bill amends the Act to-

1. Merge the role of public officer and secretary of an incorporated association so that the secretary will assume all roles currently undertaken by the public officer. [31 to 34]

2. Introduce measures to improve the rights of members to access information about their incorporated association and its operations by requiring the rules of an incorporated association to set out a clear statement of members' rights of access to accurate minutes of meetings and accessing or inspecting the association's financial accounts. [35]

3. Amend the Schedule to the Act to provide that the rules of an incorporated association must provide for the preparation and retention of accurate minutes of general meetings of the association and of meetings of the committee or other body of management of the incorporated association. [35]

4. Require that the rules of the association specify the rights and procedures for members to examine or obtain copies of minutes of meetings and of the accounting records and financial statements of the incorporated association. [35]

5. Provide that an auditor of an incorporated association can only be removed from office by resolution at a general meeting of the association and that appropriate notice of the proposed removal of an auditor will be required to be given to all members and to the auditor prior to the general meeting at which the matter is to be considered. [11]

6. Provide a defence of qualified privilege to statutory managers, administrators and auditors appointed in accordance with the Act. Qualified privilege provides a statutory defence in circumstances where a statement whether written or oral may otherwise be perceived as defamatory. [27]

2

Note: Qualified privilege - A privilege offering protection in an action in defamation where the person who made the communication had an interest or a duty, 'legal, social, or moral', to make it to the person to whom it was mode, ond the person to whom it was made had a corresponding interest or duty to receive it: Adam v Ward [1917} AC 309; Mouwlds v Fergusson {1940} 64 CLR 206. lt will not be available if the publication was motivated by malice or an improper purpose: Calwe/1 v lpec (1975} 135 CLR 321; 7 ALR 553. 1

Concise Australian Legal Dictionary, Butterworths, Second Edition, p. 359

Alert Digests Nos. 1 to 15 of 2009

7. Provide measures that when a member or com.mittee member resigns or otherwise ceases to hold office, that member must return to the secretary of the incorporated association, any documents that they possessed by virtue of being a member or committee member. Where documents are not returned the bill provides that an incorporated association may apply to the Magistrate's Court for an order directing a person to return documents to the association. [10]

8. Provide for improved notice to be given to members of important proposals such as special resolutions that need to be considered by a general meeting of the association including adequate detail of the content of the resolution. [9]

9. Clarify that an incorporated association must not act outside of the powers provided by its rules and must not act outside the scope of its statement of purposes and provide that if an incorporated association acts outside its statement of purpose, a member of the association or the registrar may bring proceedings in the Magistrate's Court to restrain the incorporated association from doing so. [5]

10. Introduce new provisions that will enable a member or former member of an incorporated association to apply to the Magistrates Court to seek an order in circumstances where it is alleged that the association has engaged or proposes to engage in conduct that is oppressive. The Magistrates Court will be able to make a range of orders including an order restraining or requiring a person to do a specific thing or an order to reinstate a member or refer proceedings to the Supreme Court if the proceedings raise a complex question or matter of general· importance, a question of law or if it appears that an incorporated association may need to be wound up. [6], [27]

11. Provides that the Registrar will be a body corporate with perpetual succession under the name of Registrar of Incorporated Associations and provide the Registrar with additional power to clarify the validity of lodged documents and allow the Registrar to refuse to accept documents lodged under the Act if the registrar is of the opinion that they may not be valid. The incorporated association will be entitled to provide the registrar with minutes of meetings and any other documents or information necessary to support the validity of documents that have been lodged. Where the Registrar declines to accept the documents, an incorporated association will be able to request that the Registrar refer the matter to the Magistrates Court for a declaration regarding their validity. [22], [25]

12. Allow the Registrar a discretion to accept some alterations made to the rules by a special resolution and reject others which are illegal or beyond power, even if the valid and invalid provisions have been the subject ofthe same special resolution. [8]

13. Enable the Registrar by application to the Magistrates' Court following an investigation into the affairs of the incorporated association to seek the appointment of a temporary statutory manager to manage the affairs of an incorporated association in circumstances where there is evidence of serious dysfunction in the operations of an association rather than seeking ·to have the incorporated association wound up. The expenses ofthe statutory management are to be paid from the funds of the incorporated association. [12]

14. Introduce new provisions that will enable small incorporated associations with surplus assets of less than $10,000 to apply to the registrar for voluntary cancellation of their incorporation, thereby removing the need (and saving the cost) for these associations to appoint a liquidator. [18]

15. Introduce the ability for incorporated associations to apply for voluntary administration by applying the relevant provisions of the Commonwealth Corporations Act with appropriate modifications. (14]

16. Provide that generally, when an incorporated association is wound up, voluntarily or otherwise, the surplus assets of the association cannot be distributed to a member, a former member or to any person who would hol~ the assets on trust for a member or former member. The amendments also provide for a number of exceptions including incorporated associations that currently specify in their rules that assets may be distributed to members. A person aggrieved by the general prohibition may apply to the Supreme Court for an order permitting distribution in a way contrary to the incorporated association's rules. [15]

3


17. Provide that on winding up where an asset or part of an asset consists of property supplied by a government department or public authority (whether State, Commonwealth or Municipal) that property must be returned to the Department or authority that supplied it or to a body nominated by that Department or authority and this will include items such as the unexpended portion of a government grant. [15]

Content and Committee comment

The provisions in the Bill (except Parts 3 and 4) will come into operation on the day after Royal Assent. Part 3 and Part 4 (clauses 31 to 35) are each to commence operation on a day to be proclaimed or if no date has then been proclaimed, on 1 December 2011. [2]

Note: From the explanatory memorandum - Part 3 changes references in the Act from 'public officer' to 'secretary', and Part 4 specifies matters that the rules of an incorporated association must set out. A default date of 1 December 2011 has been specified in order to allow sufficient time for the Model Rules set out in the regulations to be revised to include the new matters and to recognise the change from "public officer" to "secretary". This will also enable incorporated associations sufficient lead-time to amend their own rules to comply with the new requirements.

Delayed commencement -In appropriate delegation of legislative power -Implementation of new rules by no-profit associations - Whether sufficient justification for delay

The Committee notes the explanation for the delayed commencement of the provisions relating to the new model rules and the new title of 'secretary' replacing 'public officer'.

The Committee accepts that in the case of community and non-profit smaller incorporated associations a longer lead time may be desirable to allow these bodies to amend their rules to ensure compliance with the new legislative requirements.

The Committee makes no further comment.

Bus Safety Bill 2008

Introduced 2 December 2008 Second Reading Speech House

4 December 2008 Legislative Assembly Hon. Lynne Kosky MLA Minister for Transport

Member introducing Bill Portfolio responsibility

Background

The Bill proposes a new principal Act to make provision for the safe operation of bus services.

4

Notes: From the Second Reading Speech -

• More than 40 per cent of the bus fleet is currently unregulated for safety.

• Bus safety is currently regulated by an operator accreditation scheme iri the Public Transport Competition Act 1995 and by miscellaneous prescriptive offences in the Transport (Passenger Vehicles) Regulations 2005. ..

• The current definition of 'bus' is a passenger vehicle with more than 12 seating positions, including the driver. This misses minibuses and is inconsistent, not only with the requirements in most Australian jurisdictions, but also with the relevant Australian design rules.

0 This Bill now extends the definition of 'bus' in line with the Australian design rules, which define a bus as a passenger vehicle with 10 or more seating positions including the driver.

e [the] Bill imposes performance-based duties of care on all industry participants who are in a position to influence the safety of the operation what is called the 'chain of responsibility'.

e New probity standards will also be introduced, with the inclusion of disqualification offences -essentially past criminal convictions which, depending on their seriousness, may disqualify an applicant from obtaining accreditation.

e 1t is not proposed to compel bus operators to impose drug and alcohol testing on drivers or other relevant employees. Instead, the Bill requires the operator to develop a drug and alcohol policy in consultation with employees.

o These provisions give the safety director regulatory tools including improvement notices (which require a duty holder to remedy a safety breach) and, in more critical circumstances, prohibition notices (which enable the Safety Director to prohibit the duty holder from carrying out an unsafe activity until the situation is remedied). In each case, failure to comply with the notice is an offence.

0 The Rail Safety Act and Road Safety Act give courts a wide range of sentencing options after a finding of guilt is made in relation to a safety offence. These, too, will now be available in relation to bus safety offences.


[Clauses]

Delayed commencement

[2]. Clauses 1, 2 and 80 to come into operation on the day after Royal Assent the remaining provisions of the Bill come into operation on a day to be proclaimed but not later than by 31 December 2010.

Note: Extract from the Second Reading Speech -

The new Act comes into operation on a date to be proclaimed, with 31 December 2010 targeted as the default commencement date. This will allow time for the industry and the regulator to adapt to the new requirements, and for certain operators and services using minibuses to transition from hire car and special purpose vehicle licensing schemes to the new bus scheme.

Subordinate instruments necessary for the operation of the new scheme will be developed during 2009 and 2010. These will include regulations, a code or codes of practice, and a compliance and enforcement policy. Each will involve further consultation with industry and other stake holders.

Delayed commencement - Inappropriate delegation of legislative power - New regulatory scheme -Whether sufficient justification for delay

The Committee notes the reasons given for a delayed commencement of up to two years. The Committee observes that where new regulatory schemes are introduced requiring industry familiarization and new subordinate instruments to be developed, requiring regulatory impact assessments requiring public consultation, that these factors may justify an extended commencement provision.

[8]. Empowers the Minister to declare, by notice in the Government Gazette, that a substance is a drug for the purposes of Part 5 (Drug management policy}.

Part 2 sets out the key principles which underpin the regulatory scheme established by the Bus Safety Bill.

5


Part 3 of the Bill introduces the concept of 'ensuring safety', and a suite of duties for various persons and classes of persons involved in the provision of bus and bus related services.

Part 4 establishes a new accreditation scheme for operators of commercial and local bus services, and requires other providers of bus services to be registered.

[24]. Prohibits an operator from operating a commercial bus service or a local bus service unless the operator is accredited under Part 4.

[27]. Requires the Safety Director to refuse an application for accreditation if he or she believes on reasonable grounds that the applicant or responsible person has been found guilty of a tier 1 offence (defined in clause 3}; or the applicant or responsible person is subject to a reporting obligation or an order referred to in section 12(1}(a} or (b) of the Working with Children Act 2005; or the applicant is disqualified from obtaining the accreditation, based on the cancellation of a previous accreditation; or the applicant is insolvent, or has been placed in administration under law; or a receiver, or receiver and manager, has been appointed; or a court has made an order for the winding up of the applicant.

[28]. Requires the Safety Director to refuse an application for accreditation if he or she believes on reasonable grounds that the applicant or responsible person has been found guilty of a tier 2 offence {clause 3}, unless the applicant can demonstrate that accreditation is appropriate in the circumstances and empowers the Safety Director to refuse an application for accreditation if he or she believes on reasonable grounds that the applicant or responsible person has been found guilty of a tier 3 offence {defined in clause 3- other criminal offences or their equivalent on other jurisdictions}, or that the applicant has contravened a current or past condition of accreditation.

[29]. Empowers the Safety Director to postpone a decision on accreditation if the applicant or responsible person has been charged with a disqualifying offence, the charge has not been finally disposed of and the Safety Director believes that a finding of guilt would be relevant to his or her decision.

[30]. Empowers the Safety Director to disqualify an applicant whose accreditation application has been refused from applying for accreditation for a period not exceeding S years.

[48]. Empowers the Safety Director to immediately suspend an accreditation, if he or she considers it necessary, without holding an inquiry under clause SO of this Bill.

[SO]. Empowers the Safety Director to hold an inquiry to determine whether proper cause exists for taking disciplinary action against an accredited bus operator.

Part S requires bus operators, to develop, maintain and implement an alcohol and drug management policy.

Part 6 provides certain persons affected by decisions of the Safety Director, to apply to the VCAT for review of a decision to refuse, suspend or cancel accreditation; impose a condition on accreditation; vary or not vary accreditation; or disqualify an operator from applying for accreditation.

Part 7 of the Bill contains provisions for the approval of codes of practice by the Minister. Codes of practice will contain operational guidelines and standards to give practical guidance to accredited bus operators and any other person on whom this Bill may place obligations.

[64]. Provides that a person does not incur any civil or criminal liability, only as a result of failing to observe any provision of an approved code of practice.

Part 8 deals with general matters, including offences for misleading and deceptive conduct, the setting of accreditation fees, offences by bodies corporate, disallowance of approved codes of practice, the effect of compliance with regulations or approved codes of practice, and the making of regulations.

6


[65]. Requires an accredited bus operator or registered bus operator to notify the Safety Director of prescribed incidents in accordance with the regulations. lt is an offence not to comply with this clause, and a penalty of 50 penalty units applies.

[67]. Empowers the Safety Director to set accreditation fees by notice published in the Government Gazette. Clause 67{4) provides that a fee set by the Safety Director is not limited to an amount that is related to the cost of providing a service.

Insufficiently subjects the exercise of legislative power to parliamentary scrutiny - Total absence of explanatory material

The Committee notes that the explanatory memorandum avoids any mention of this provision (clause 67(4)). The Committee refers to Practice Note 'No. 1 of 2005 concerning inadequate explanatory material provided with a Bill. The Committee considers that where Parliament is provided with insufficient advisory matter for it to exercise its legislative discretion this may be in breach of section ll(a}(vii) of the Parliamentary Committees Act. 2003 (insufficiently subjects the exercise of legislative power to parliamentary scrutiny).

Inappropriate delegation of legislative power - Fees levied by Safety Director without relation to cost of providing service- Whether taxation (not fee for service) by means of subordinate instrument

The Committee considers that a fee making provision which is not related to recovering costs of providing a service may be characterised as a form of taxation and therefore the Committee considers that the proper authority for such a power should be found in primary legislation not as a discretionary executive power. Such a taxation power may constitute an inappropriate delegation of legislative power within the meaning of section ll(a)(vi) of the Parliamentary Committees Act 2003.

The Committee will seek further information from the Minister concerning the purpose or intention of making a provision that allows accreditation fees to be set without regard to the cost of the service and drawing the Minister's attention to the inadequate explanatory material provided with the Bill.

[71]. Provides for the tabling and disallowance of approved codes of practice in Parliament.

Charter Report

Impairment discrimination - Barriers to accreditation for people found not guilty of certain offences on the basis of mental impairment - Whether discrimination - Whether reasonable limit

Summary: Clause 3{d) treats people in similar circumstances differently, by imposing barriers to accreditation on people who involuntarily commit crimes because of a mental impairment, but imposing no barriers on people who involuntarily commit the same crimes for other reasons that may affect public safety. lt may therefore limit the Charter rights of people who have or had a mental impairment to equal protection of the law without discrimination. The Committee is concerned that there may be 'less restrictive means reasonably available to achieve the purpose' of protecting public safety.

The Committee notes that clause 3(3){d)(i) & {ii) provides that people found not guilty of an offence on the basis of 'mental impairment'2 are to be treated as if they had been found guilty of the offence for the purposes of the Bill. Such people hence become subject to the various special barriers for certain offenders

s. 20, Crimes (Menta/Impairment and Unfitness to be Tried) Act 1997. The category also includes people who were the subject of similar findings under non-Victorian laws, as well as Victorians acquitted under the common law defence of insanity and who fall within the terms of Schedule 3, clause 7(2) of the Crimes (Menta/Impairment and Unfitness to be Tried) Act 1997.

7


to accreditation (or continuing accreditation) as operators of bus services under clauses 27, 28, 49 and 50. 3

These clauses engage the Charter's right to equal protection of the law without discrimination on the basis of 'impairment'.4

The Statement of Compatibility remarks:

In my view, the provisions do not amount to disability discrimination. This is because the accreditation decision or disciplinary action is not made on the basis of the person's mental impairment. Rather, the action is taken because of the fact of the person having committed the actus reus5 of the offence, and in the interest of public care and safety.

However, the Committee observes that a finding of not guilty on the basis of mental impairment can be made even when the person's actions are involuntary, if the involuntariness was due to a mental impairment.6 By contrast, people who act involuntarily for other reasons, including intoxication, temporary psychosis or a disorder that does not qualify as a mental impairment (such as sleepwalking or automatism) will be acquitted. So, clause 3(d) treats people in similar circumstances differently, by imposing barriers to accreditation on people who involuntarily commit crimes because of a mental impairment, but imposing no barriers on people who involuntarily commit the same crimes for other reasons that may also affect public safety. The Committee therefore considers that clause 3(3)(d) may limit the Charter rights of people who have or had a mental impairment to equal protection of the law without discrimination.

The compatibility of clause 3(3)(d) with the Charter may depend on whether or not the barriers to accreditation for people found not guilty on the basis of mental impairment are reasonable limits on the right to equality according to the test in Charters. 7(2).7 The Statement of Compatibility remarks:

[O}nly those found guilty of serious offences described in the bill as tier 1 offences, are excluded from accreditation or suspended on a mandatory basis. Tier 2 and 3 offences trigger discretion on the part of the Safety Director, which must be exercised compatibly with the Charter. Furthermore, a person may apply to VCAT for review of accreditation and certain disciplinary decisions by the Safety Director.

While the Committee considers that these provisions reduce the limitation that clause 3{3)(d) may impose on the Charter's equality rights, the Committee is concerned that there may be 'less restrictive means reasonably available to achieve the purpose' of protecting public safety.8 In particular, clauses 26, 48 and 50 empower the Director to reject any application or suspend or cancel any registration in a variety of circumstances relating to public safety, whether or not a crime was committed or why.

The Committee will write to the Minister seeking further information as to whether or not the Director's general powers under clauses 26, 48 and 50 are a less restrictive means reasonably available to achieve the purpose of protecting bus passengers from people who are found not guilty of crimes on the basis of mental impairment. Pending the Minister's response the Committee draws attention to clause 3(3}{d}.


6

7

8

For tier 1 offences, the Director must refuse applications and revoke accreditation: clauses 27(a)(i) & 49. For tier 2 offences, there is a presumption against accreditation and in favour of cancellation: clauses 28(1) & 50(4). For tier 3 offences, there is a discretion to refuse accreditation and automatic 'proper cause for taking disciplinary action': clauses 28(2)(a) & 50(2)

Charter s. 8(3). Discrimination is defined in the Equal Opportunity Act 1995 to include discrimination on the basis of 'impairment', including a 'mental or psychological disease or disorder.'

'Actus reus' means the physical side of the crime: the things the offender voluntarily did, the circumstances in which it occurred and the results that followed. That is distinct from the mental side of the crime: what the offender was thinking when he or she did those things.

Section 21(1) of the Crimes (Menta/Impairment and Unfitness to be Tried) Act 1997 c.f. R v Falconer (1990)171 CLR 30.

Charter s. 7(2) states: 'A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom .. .'

Charters. 7(2)(e).

Crrnmiroaii!Procedure Bill 2008


!Purpose

2 December 2008 4 December 2008 legislatjve Assembly Hon. Rob Hulls MLA Attorney-General

The purposes of the Bill are to -


1. Clarify, simplify and consolidate the laws relating to criminal procedure in the Magistrates' Court, the County Court and the Supreme Court;

2. Introduce a new procedure permitting the service of a notice to appear in the Magistrates' Court;

3. Provide new pre-trial disclosure requirements for the prosecution;

4. Provide for a 6-month time limit for the filing of charges for summary offences in the Children's Court;

5. Provide for the transfer to the County Court or Supreme Court of summary offences related to an offence to be tried on indictment by that court;

6. Abolish the procedure of indictment by grand jury;

7. Provide for interlocutory appeals in criminal proceedings in the County Court and the Supreme Court;

8. Clarify the tests relating to determination by the Court of Appeal of appeals;

9. Provide for the stay of sentences on appeal;

10. Amend the Sentencing Act 1991 to provide for a maximum fine that may be imposed for an indictable offence that is heard and determined summarily;

11. Amend the Crimes Act 1958, the Crimes (Menta/Impairment and Unfitness to be Tried) Act 1997, the Magistrates' Court Act 1989, the Children, Youth and Families Act 2005 and the Appeal Costs Act 1998;

12. Repeal the Crimes {Criminal Trials) Act 1999;

13. Make consequential and other amendments.

Content and! Committee comment

[Clauses]

Rights and freedoms- Liberty of the person -Arrest and Boil of persons

The Bill contains provisions that deal with Bail pending or during the course of proceedings or pending and after an appeal. [265], [310], [323], [359], [362]

A number of provisions give powers for a court to issue a warrant to arrest an accused to ensure his or her attendance at relevant proceedings. [80-81], [87], [268], [330]

Right to o fair hearing - Special procedural provisions for vulnerable witnesses in sexual offences - Time for commencement of summary offences abridged where accused is o child

There are special provisions in the Bill providing for the giving of evidence and cross-examination of child and cognitively impaired complainants in respect to sexual offences. Further there are shorter time limits for holding committal hearings, filing indictments and the holding of trials in respect to such complainants. [8], [17], [23], [24], [123], [163], [212]

9


There are shortened time limits of six months rather than twelve months within which a summary offence must be brought where the accused is a child. There is power to extend this to 12 months in appropriate cases. [376]

The Committee notes the special provisions in the Bill for child and cognitively impaired complaints and • considers that the question whether these special provisions are proportionate and rationally connected to protecting vulnerable witnesses with reduced capacity whilst preserving procedural fairness (found in other provisions of the Bill) for an accused is a matter for the consideration of Parliament.

Right to silence -Accused required to plead at conclusion of committal

At the end of a committal hearing the court must ask the accused whether he or she wishes to plead guilty or not guilty to the charge(s) but not whether they wish to reserve their plea. [144]

The Committee observes that it raised this issue in respect to the Criminal Procedure Legislation Amendment Bi/12007 and notes the Attorney-General's response to the Committee's concerns.

The Committee further observes the point made in the Statement that - in response to the Magistrate's question 'an accused may choose to answer or not answer. There is no mechanism to compel an answer'. A non-answer will be treated as a plea of not guilty.

Presumption of innocence - Prosecutorial responsibility to prove elements of offence - Whether defence disclosure compatible with that duty

The Bill includes a number of clauses that require the defence to disclose certain matters prior to trial. The defence must disclose (give prior notice) alibi evidence [51], [190] and expert evidence [SO], [189]. In addition the defence may be required to give information for case management purposes, such as any special requirements of witnesses and narrowing the disputed case against the accused by responding to the prosecutions outline of the case against the accused [55), [125], [179], [182], [183]

The Committee notes these provisions and accepts that it is desirable in all the circumstances to strike a balance between an accused's rights and efficient case management. The Committee does not consider that any of the provisions limit or abrogate the common law right that the prosecution prove each element of the offence(s).

Fair trial- Right to legal representation - No common law right to legal representation

The Committee observes that there is no common law right in Australia to be legally represented.9

The Bill proposes to re-enact section 360A of the Crimes Act 1958 which prevents courts from staying or adjourning trials because an accused has been refused legal assistance. The section arose from the decision of the High Court in R v Dietrich (1992) 177 ClR 292. There it was held that a court has an inherent jurisdiction to stay (even permanently) a trial where the absence of legal representation, at least in trials for very serious offences, may result in injustice. The Bill empowers the court to order Victorian legal Aid {VlA) to provide legal assistance. VlA may appeal such an order to the Court of Appeal. The burden of proof that an accused cannot afford legal assistance rests with the accused. Courts retain an inherent jurisdiction proceedings until representation is provided if a fair hearing cannot otherwise be assured. [197]

The Committee notes the decision in R v Dietrich and the State's response to overcome any impasse that may arise from a stay of proceedings. The Committee further recognizes that there may be circumstances where an accused refuses legal assistance even when eligible for legal aid and cases where an accused, whilst able to engage counsel will seek to represent themselves.

Mclnnis v R (1979)143 CLR 575; 27 ALR 449

10


The question whether the provisions achieve a fair and proportionate balance to ensure a fair trial is for Parliament to determine.

Right to be presumed innocent- Prosecution to prove the elements of the case against accused

The Bill re-enacts section 130 of the Magistrates' Court Act 1989. The section deals with cases where an offence makes provision for a proviso, exception, exemption, excuse or qualification. These type of offences, often involving a breach of regulatory schemes, place a reverse evidentiary onus of proof on an accused to point to or establish, on the balance of probabilities, some evidentiary matter within the peculiar knowledge of the accused (such as a reasonable excuse, exception or exemption). The provision has application to summary offences and indictable offences triable summarily. [72]

The Committee notes that reverse evidentiary onus provisions are frequently encountered in regulatory offences punishable by low to moderate levels of fine, foss of licence or permit but not ordinarily involving a term of imprisonment. The Committee accepts the desirability of including such a provision in the Bill to establish the procedure and law where such reverse evidential onus offences are provided.

The Committee will however seek to review each new or re-enacted offence where such a provision is included in the proposed legislation to ensure that in all the circumstances a reverse evidential onus is appropriate having regard to the particular regulatory scheme, the sanction provided for the breach, the public benefit ensuring effective prosecution of offences and other relevant matters.

Fair trial - Right to be informed of alleged offence in sufficient detail - Right to trial without unreasonable delay - Conviction on alternative less serious offence not contained in charge sheet or indictment - Right to an interpreter where custodial sentence a possible outcome -Prosecution refusal to disclose certain evidence - Right to be tried in person - Right to examine witnesses in person or by counsel

Notice of offence in sufficient detail- The Bill provides that the accused must be notified in sufficient detail concerning the charge{s) against him or her for both summary and indictable offences. [6], [13-17], [21], [24], [32], [159], [171]

Courts retain an inherent jurisdiction to adjourn proceedings or extend procedural time limits to ensure adequate information and time for preparation by an accused for committal and trial. [19], [35-49], [247], [313], [331]

Trial without unreasonable delay - The Bill contains a number of provisions that set time limits, for example, ensuring a reasonably prompt re-trial where this is ordered by the Court of Appeal [211-212] and for speedy resolution of interlocutory appeals before trials, and if necessary during a trial to resolve legal issues, such as questions on the admissibility of evidence. [295-301]

Alternative offence- In indictable proceedings and on appeal an accused may be convicted of a charge other than that with which they are charged if it is an alternative or lesser offence. The alternative offence must be a true alternative in that the elements of the alternative offence must also be the elements of the charged offence. [239], [277]

In summary proceedings the power extends only to a finding of attempt to commit the offence. [76]

Interpreter - The Bill provides for mandatory assistance by an interpreter if necessary in all cases where imprisonment is a possible outcome. [335]

Prosecution may seek to deny disclosure- The prosecution may seek to refuse disclosure of information, for example that may unreasonably impact of a witnesses privacy, jeopardize law enforcement, provide details of irrelevant convictions (character of witnesses) or otherwise may not be in the public interest to make disclosure. The accused may apply for an order requiring disclosure. [45-46], [48], [363]

11


All prosecutorial applications to deny full disclosure are reviewable by the courts. [46], [125], [181]

The pros.ecution has a continuing obligation of disclosure. [42], [111], [185]

Right to be tried in person- In summary proceedings, where the Magistrate considers it justified, the court may hear and determine the charge{s) in the absence of the accused [80-81]. However in these circumstances a convicted accused may apply for a re-hearing and the court is limited in the sentencing dispositions that may be imposed on an absent accused. [87], [94]

Further, a committal proceedings may be continued where an accused applies to be absent, absconds or is removed for misbehaviour [135-136]. However, an absent accused may not be committed for trial [137-138]. The Statement observes that the courts have common law powers to regulate their proceedings and the Bill does not limit powers to hear a charge for a summary offence or a committal proceedings in the absence of an accused.

Right to examine witnesses in person or by counsel- The Bill prohibits cross-examination of children and cognitively impaired complainants in sexual offences [123]. These complainants may be cross-examined for the purposes of the trial as part of the special hearings process found in sections 41G and 41H of the Evidence Act 1958. In appropriate circumstances a witness may give evidence by audio or audiovisual recording. [232]

Right not to be compelled to confess guilt- Sentence indication procedure

The Bill provides for sentence indications where the accused person requests the court to make one an indication of a likely sentence for the offence{s). The Committee has previously raised the issue of sentencing indications and posed the question whether the procedure may induce a person to plead guilty. The sentence indication procedure was introduced by the Criminal Procedure Legislation Amendment Bill 2007. [60-61], [207-209]

The Committee raised the question of sentencing indications in Alert Digest No. 16 of 2007 and wrote to the Attorney-General seeking further advice. The Attorney's response is published in Alert Digest No. 1 of 2008.

Right to appeal statutory or constitutional in nature

The Committee notes that at common law there is no absolute right to an appeal and that appeal rights are statutory or constitutional in nature. The Committee observes that in international law there is recognition of a convicted person's right to appeal the conviction and sentence to a higher tribunal/ court.

Note: Article 14.5- Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.

The Bill provides a comprehensive set of appeal and re-hearing rights.

The appeal rights are-

• An appeal by way of re-hearing de novo by the County Court from a decision of the Magistrates' Court either on conviction and sentence or sentence alone.

• An appeal to the Court .of Appeal from a decision of the County Court that imposed a custodial sentence where the original decision of the Magistrates' Court was a non-custodial disposition. [283]

• An appeal by an accused from a decision of the Magistrates' Court to the Supreme Court on a question of law. [272]

• Appeals from the County Court and the Supreme Court {Trial Division) to the Court of Appeal against conviction and sentence. An accused must seek leave to appeal to the Court of Appeal. For appeal against conviction, applications for leave are to be determined on the merits of the appeal, such as the nature of the error of a ruling by the presiding judge or failure to instruct or improperly instructing the

12

Alert Nos. 1 to 15 of 2009

jury. For appeals against sentence a single judge hears the application for leave but the accused may seek the application for leave to be reviewed by the full court. [280], [315]

Right not to be punished twice for the same offence - Double jeopardy - Crown appeal against sentence

The Committee notes the discussion in the Statement concerning whether a Crown appeal against sentence could be characterized as a form of double jeopardy in the sense that a Crown appeal exposes the accused to a greater sentence than imposed at trial. The Committee notes that the Statement prefers the rule in R v Morgentaler [1988] SCR 30, a decision of the Canadian Supreme Court which held that the right not to be subject to double jeopardy applies only after appeal proceedings are concluded. The Statement notes that double jeopardy is not invoked because - an increased sentence on appeal involves substituting one sentence for another, not imposing a second sentence on top of the first.

For the avoidance of any legal doubt the provisions in the Bill expressly remove any consideration of 'double jeopardy' as a factor on Crown appeals against sentence. [290]

The Committee accepts the argument in the Statement that re-sentencing as a consequence of a successful Crown appeal against sentence does not engage the right against double jeopardy in its ordinary meaning.

Presumption at common law that legislation applies prospectively - Presumption against retrospective application of laws without express ar clear implied intent

The Committee notes that the Statement makes it clear that the transitional provisions that may apply to the provisions in this Bill will be provided in a future Bill providing for those matters, and including further consequential amendments. The Committee notes that any issue of retrospectivity will be considered by the Committee in that Bill.

Commencement provisions

Chapter 1 (sections 1 to 4) comes into operation on the day after Royal Assent.

Clause 384 providing for the repeal of sentence indication procedures in the County and Supreme Courts comes into operation on 1 July 2010. The clause repeals the sentencing indication pilot scheme in the County Court and Supreme Court.

The other provisions are to commence on proclamation but not later than by 1 January 2011. [2]

Note: From the explanatory memorandum -lt is intended that this Bill (with the possible exception of several clauses, such as clauses 145* and 242*) will be proclaimed to commence on the same day as the Evidence Act 2008 is proclaimed to commence. As a result, the Bill includes reference to sections in the Evidence Act 2008. **

* Clauses 145 and 242 concern new processes respectively relating to the transfer of related summary offences to the County or Supreme Courts on committal of an accused for trial and jurisdiction for those Courts to hear ond determine related summary offences.

**The Evidence Act 2008 hos a forced commencement provision of 1 January 2010.

Delayed commencement -Inappropriate delegation of legislative power

The Committee notes that the explanatory memorandum draws attention to the possible delayed commencement of several clauses such as clauses 145 and 242.

The Committee refers to its Practice Note No. 1 concerning delayed commencement provisions exceeding . one year from introduction in the Parliament. In such circumstances the Committee will seek to ensure that • Parliament has sufficient information to determine whether a delay in commencement is justified.

13


The Committee will seek further information from the Attorney-General concerning clauses 145 and 242 and others that may have delayed commencement of greater than one year from introduction in the Parliament.

Sentence indication may be given - Decision whether to give an indication is final and no appeal lies to Supreme Court

Magistrates' Court

The Magistrates' Court may give an indication as to the type of sentence that will be imposed if the accused pleads guilty at that time.

If the accused does not plead guilty in response to the indication but instead chooses to go ahead with a contested hearing, the contested hearing will be conducted before a different magistrate, unless the parties otherwise agree.

The court has unfettered discretion to refuse to provide a sentence indication. Accordingly, if the material available is insufficient to provide an indication by which the court is prepared to be bound, it may decline to provide a sentence indication.

If a sentence indication is requested, a decision to give or not to give a sentence indication is final and conclusive and cannot be appealed. [60-61] (Refer to section 85 Constitution Act 1975 report below)

The Committee observes that it raised human rights issues. about appeals from sentence indications ln respect of the Criminal Procedure Legislation Amendment Bill 2007 and notes the Attorney-General's response to those concerns published in its Alert Digest No. 1 of 2008.

Supreme and County Courts

A court may provide a sentence indication as to whether the accused would or would not be likely to receive an immediately servable term of imprisonment, if the accused pleads guilty to the offence charged or another specified offence.

A decision to give or not to give a sentence indication is final and conclusive. [207-209) (Refer to the section 85, Constitution Act 1975 report below)

Discretion to allow evidence at trial not previously disclosed by prosecutor or accused

The trial judge may give leave to either party to introduce at the trial evidence not disclosed in accordance with the pre-trial procedures prescribed by the Act. Further, the trial judge may permit the prosecutor rebut evidence given by the accused that could not have been foreseen by the prosecution. [233]

Repeal, alteration or variation of s. 85 of the Constitution Act 1975

[365]. Declares that it is the intention of clauses 61(4) and 209(4) to alter or vary section 85 of the Constitution Act 1975.

Note: These clauses both state that a decision to give or not to give a sentence indication is final and conclusive.

The Committee notes the section 85 of the Constitution Act 1975 statement in the Minister's Second Reading Speech -

14

Clauses 61 and 209 of the Bill provide the Magistrates, Children's, County and Supreme courts with the capacity to provide a sentencing indication to an accused who is considering pleading guilty. In accordance with a recommendation from the Sentencing Advisory Council in its report, Sentence


Indication and Specified Sentence Discounts, these sections provide that a decision to give or not to give a sentence indication is final and conclusive.

A sentence indication should only be given where it is likely to be of benefit in concluding proceedings.

The reason for restricting review and appeal rights against a decision to give or not to give a sentence indication is to ensure that this decision is final and the substantive proceedings, whether a trial or a plea hearing, can proceed without delay. If review and appeal rights were not restricted, they could defeat the purpose for the introduction of this scheme. Importantly, when a sentence is imposed, each party has rights of appeal against the sentence imposed.

Constitution Act 1975, section 85 - Repeal, alteration or variation of the unlimited jurisdiction of the Supreme Court10

The Committee notes that clauses 61(4) and 209(4) prevent decisions made in the course of criminal proceedings from being appealed to the Supreme Court.

The Committee having reviewed the section 85 statement made in the Second Reading Speech, the declaratory and enabling clauses and the explanatory memorandum is of the opinion that the proposed provisions altering or varying section 85 of the Constitution Act 1975 are appropriate and desirable in all the circumstances.

Repeals, consequential and other amendments

Repeals certain provisions concerning sentence indications in the Supreme Court and County Court on 1 July 2010. [384]

Note: The provision effectively sunsets the sentence indication provisions in the Supreme and County Courts.

Charter Report

Rights in criminal proceedings - Provisions that permit or fail to prohibit potential rights limitations- Compatibility depends on maintenance of existing common law rules and practices

The Committee notes that several provisions of the Bill engage various Charter rights in criminal proceedings, by permitting or failing to prohibit potential breaches of those rights: ,

o Clause 76 gives the Magistrates Court a power to convict a person charged with a summary offence of the offence of attempting to commit that offence, whether or not the offender was promptly told of that possibility (as required by Charters. 25(2)(a).)

o Clause 247 gives courts the power to extend time limits for trials 'if it is in the interests of justice to do so', without any guarantee that the trial will not be unreasonably delayed (as required by Charter s. 25(2)(c).)

o Clauses 274 and 278 provide for appeals against conviction and sentence only on the granting of leave to appeal by the Court of Appeal, rather than as of right (as required by Charters. 25(4).)

The Statement of Compatibility argues that, in light of existing court practices, these Charter rights will not be limited (or will only be reasonably limited) by courts applying these provisions.

10 Section 85(1) of the Constitution Act 1975 provides that "Subject to this Act the Court shall have jurisdiction in or in relation to Victoria its dependencies and the areas adjacent thereto in all cases whatsoever and shall be the superior Court of Victoria with unlimited jurisdiction.

15


While the Committee accepts that existing practices will prot.ect defendants' Charter rights in this way, the Committee is concerned that such protection is not guaranteed against future changes in those practices, for example because of a change in the common law or Australian court practice mandated in a future High Court judgment. In particular, Charter s. 38(1), which obliges public authorities to act compatibly with rights, does not apply to courts in these circumstances, because their non-administrative functions are exempted from the definition of public authority by Charters. 4(1)(j).

The Committee therefore draws Parliament's attention to clauses 76, 247, 274 & 278.

Rights to an interpreter and to communication assistance - Provision barring un-interpreted hearings in circumstances that are narrower than the Charter's minimum guarantees - Whether restricted circumstances demonstrably justified

Summary: Clause 335 bars a court from hearing a criminal proceeding in the absence of a competent interpreter, but provides no protection for people who know but cannot speak English, or who can speak English but require assistance to communicate, or who are charged with offences that are not punishable by imprisonment. The Committee will write to the Minister seeking further information as to whether there is a demonstrable justification for the conditions in clause 335(a) & (b).

The Committee notes that clause 335 bars a court from hearing a criminal proceeding in the absence of a competent interpreter if two conditions are satisfied:

• s. 335(a): a person is charged with an offence punishable by imprisonment; and

• s. 335(b): that person does not have sufficient 'knowledge of the English language'

These conditions are more restrictive than the Charter s. 25's 'minimum guarantees' for all criminal defendants:

• Charter s. 25(2)(i): 'to have the free assistance of an interpreter if he or she cannot understand or speak English' .11

• Charters. 25{2)(j): 'to have the free assistance of assistants and specialised communications tools and technology if he or she has communication or speech difficulties that require such assistance'.

The Committee is concerned that clause 335 provides no protection for people who know but cannot speak English, or who can speak English but require assistance to communicate. Also, it doesn't protect people charged with offences that are not punishable by imprisonment. The Canadian Supreme Court, interpreting a similar right, has noted that it applies to 'all accused, irrespective of the gravity of the offence charged and its classification' .12

The Statement of Compatibility observes that the bill does not 'limit' the right to an interpreter and, more generally, that the bill operates in tandem with common law and other statutory rights, including the right to a fair hearing. However, the Committee is concerned that an express statutory protection protecting one of Charters. 25's 'minimum guarantees' only in some circumstances may be incompatible with the Charter

11

12

16

Charter s. 3 defines 'interpreter' to include either an accredited interpreter or, if none are 'readily available', a competent interpreter. The term relates to communication from one language to another and from one 'form of communication' to another.

R v Tran [1994] 2 SCR 951, [Part IV. Analysis]

unless that limited protection is demonstrably justified according to the test in Charters. 7(2).13 Also, a ban on uninterpreted proceedings only when people lack 'knowledge' (as opposed to other communication difficulties) may limit the Charter's right to equal protection of the law without discrimination on the basis of impairment.14

The Committee will write to the Minister seeking further information as to whether there is a demonstrable justification for the conditions in clause 335(a) & (b). Pending the Minister's response, the Committee draws attention to clause 335.

Statement of compatibility- Large and complex Bill- Clear, helpful and detailed analysis

The Committee notes that the Bill is a large and complex one that engages numerous Charter rights. The Statement of Compatibility provides a clear, helpful and detailed analysis of the many human rights issues that the Bill raises.


[)uties Amendment Bill 2008

Introduced Second Reading Speech House Member introducing Bill Minister responsible Portfolio responsibility

Purpose

2 December 2008 4 December 2008 Legislative Assembly Hon. Tim Holding MLA Hon. John Lenders MLC Treasurer

The Bill amends the Duties Act 2000 (the 'Act') to ensure that leases are not used as a mechanism for avoiding duty; clarify when duty is payable in relation to changes in beneficial ownership; and reduce the time period for the payment of duty.

Background

As an anti-avoidance measure the Bill amends the Act to ensure that duty is payable where effective control or ownership of real property is obtained, irrespective of the form of transaction. In particular, the Bill will ensure that duty is payable on certain long term lease arrangements used to avoid stamp-duty. The Bill clarifies when duty is payable in relation to changes in beneficial ownership. [3-8]

The Bill will reduce the period for the payment of duty to 14 days after the settlement of a dutiable transaction. Currently the Act allows three months for payment of duty after the dutiable transaction has taken place. [9-13]

13

14

Charters. 7(2) provides that a 'human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom'.

Charters. 8(3)

17



[Clauses]

[2]. Other than Part 2 (certain leases and beneficial ownership) the provisions commence on Royal Assent. Part 2 is deemed to have commenced on 21 November 2008.

Note: In respect to Part 2 the Second Reading Speech states- These anti-avoidance measures are to apply from the date of public announcement - 21 November 2008 ... The anti-avoidance measures will not bring any transaction to duty where there is no clear policy intent that duty should be payable. The transactions that may be affected do transfer effective economic ownership and should be dutiable. Applying the measuresfrom the day of announcement is reasonable given the risk to the revenue base.

Rights and freedoms - Retrospective application of public revenue measures to the time of public announcement in the media- Whether justified

The Committee notes that the anti-avoidance measures in Part 2 are deemed by the Bill to commence a few days prior to the introduction of the measure in the Parliament being the date of the ministerial announcement in the media. The Committee also notes the comments in the Minister's Second Reading Speech.

The Committee recognises that retrospective application in respect to taxation and revenue legislation may be justified by government in certain circumstances to avoid the potential of persons and corporations achieving windfall profits between the time of a public announcement and the time of the implementing enactment

The Committee refers the question whether retrospective application is appropriate in the circumstances for the consideration of the Parliament.


Equal Opportunity Amendment (Governance) Bill 2008


Background

2 December 2008 4 December 2008 Legislative Assembly Hon. Rob Hulls MLA Minister for Industrial Relations

The first Equal Opportunity Act was enacted in Victoria in 1977 creating the Equal Opportunity Board and the Office of Equal Opportunity Commissioner. The Act was amended in 1993 to make structural and operational changes including the replacement of the Commissioner with a five member Equ~l Opportunity

Commission.

Purpose

The Bill amends the Equal Opportunity Act 1995 (the 'Act') to alter the governance and complaint-handling arrangements for the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) under the Act.

In summary the Bill will-

18


1. Create a new full-time position of Commissioner of the VEOHRC Commission appointed by the Governor in Council for a renewable term of five years. [5]

2. Provide that the Commissioner will have control of the day to day administration of the affairs of the Commission in accordance with the policies, priorities and strategies determined by the Board. [5]

3. Provide that the Commissioner will chair a Board with between five and seven members. [5]

4. Provide that Board members will be appointed on a part-time basis by the Governor in Council on recommendation of the Minister with a renewable term of five years. [5]

5. Give the Board a clear strategic oversight function and the power to make strategic decisions and to set the organisation's strategic direction. [5]

6. Consistent with the Board's new strategic functions, remove the Board members' complaint-handling functions and powers completely, and allocate complaint-handling powers and functions to the Commissioner who can then delegate to appropriately skilled staff. [5]

7. Abolish the current Chief Conciliator/Chief Executive Officer position. [5]

8. Limit the unlimiteq jurisdiction of the Supreme Court of Victoria. [14]

9. Make consequential amendments to the Act, other Acts and transitional arrangements as a result of the new Commission governance amendments. [6 and 7], [9-13], [15-18]


Repeal, alteration or variation of s. 85 of the Constitution Act 1975

(14]. Declares it is the intention of section 211 to alter or vary section 85 of the Constitution Act 1975.

The Committee notes the section 85 statement in the Minister's Second Reading Speech-

Section 211 of the Equal Opportunity Act 1995 alters or varies section 85 of the Constitution Act 1975 to the extent necessary to prevent the bringing before the Supreme Court of any action in relation to a complaint dismissed by the commission under sections 108, 110, 113, 117 or 123 of the Equal Opportunity Act 1995.

The effect of section 211 is to limit a complainant's right ta pursue further legal action once the Commission has dismissed a complaint where the complainant has failed to request a referral to VCAT within 60 days af being advised by the Commission of his or her rights of referral. The 60-day time limit provides a complainant with sufficient time to consider his or her options and to seek legal advice if necessary. lt would create uncertainty and place an unfair burden on respondents if matters that have been dismissed by the Commission could be re-litigated.

The Bill inserts new section 211(2) into the Equal Opportunity Act 1995 so that decisions of the Commissioner pursuant to sections 108, 110, 113, 117 or 123 of the Equal Opportunity Act 1995 may not be brought before the Supreme Court. This is required because complaints will no longer be dismissed by the 'Commission' under the Equal Opportunity Act 1995; all complaint handling functions will rest with the Commissioner.

Section 211(c) of the Equal Opportunity Act 1995 alters or varies section 85 of the Constitution Act 1975 to the extent necessary to prevent the bringing before the Supreme Court of any action in relation to a complaint where a person has chosen another avenue under section 103 of the Public Sector Management Act 1992 in relation to the same subject matter. lt is appropriate that this Bill repeals section 211(c) because the reference to the Public Sector Management Act 1992 and section 103 of that Act is obsolete; the Public Sector Management Act 1992 has been repealed.

19


Constitution Act 1975, section 85 - Repeal, alteration or variation of the unlimited jurisdiction of the Supreme Court15

The Committee notes that clause 14 prevents the bringing of any action before the Supreme Court in relation to a complaint dismissed by the Commissioner under sections 108, 110, 113, 117 or 123.

The Committee having reviewed the section 85 statement made in the Second Reading Speech, the declaratory and enabling clauses and the explanatory memorandum is of the opinion that the proposed provisions altering or varying section 85 of the Constitution Act 1975 are appropriate and desirable in all the circumstances.


Fair Trading and Other Acts Amendment IBill 2008

Introduced 2 December 2008 Second Reading Speech

House

4 December 2008 Legislative Assembly

Member introducing Bill

Portfolio responsibility

Hon. Tony Robinson MLA Minister for Consumer Affairs

Purpose

This Bill amends the Fair Trading Act 1999; the Residential Tenancies Act 1997 and the Consumer Credit (Victoria) and Other Acts Amendment Act 2008.

The Bill amends the-

Fair Trading Act 1999

1.

2.

3.

4.

5.

6.

15

20

Clarify that courts can make "non-punitive" corrective advertising orders and "punitive" adverse publicity orders. [11 and 12]

Ensure that courts can make orders prohibiting a person who is subject to litigation from divesting his

or her assets or property. [13]

Increase the amount of compensation able to be awarded by a court or the VCAT for humiliation or distress arising from conduct which is an offence under the Act from $1,000 to $10,000. [15]

Amend Part 2B of the Act (unfair terms in contracts) to enable the Director of Consumer Affairs Victoria (Director) to apply to the County or Supreme Court as well as to the VCAT for an injunction or declaration under Part 2B. [7 to 9]

Provide a Court or the Tribunal with the capacity to make remedial orders such as an order that a refund be made or that property be transferred after having declared a term in a consumer contract to be an unfair term or a term in a standard form contract to be a prescribed unfair term. [9]

Provide a new presumptive provision that if it is alleged in any proceeding under Part 2B that a contract is a consumer contract or standard form contract to which Part 2B applies, it is to be presumed (unless the contrary is established) that Part 2B applies to the contract. [10]

Section 85(1) of the Constitution Act 1975 provides that "Subject to this Act the Court shall have jurisdiction in or in relation to Victoria its dependencies and the areas adjacent thereto in all cases whatsoever and shall be the superior Court of Victoria

with unlimited jurisdiction.


7. Extend the operation of Part 2B of the Act to credit contracts by ensuring that parties to credit contracts entered into after the commencement of the Bill will enjoy protection from unfair contract terms. The extension of operation will also apply to a term of a credit contract if that term is varied after the date of commencement. [4]

8. Make two statute law revision amendments being, an incorrect cross-reference and an incorrect alphabetical listing in Schedule 1. [17]

Residential Tenancies Act 1997

9. The Bill amends the Act in relation to residential premises that may or may not be formally affiliated with a school or institution which provides education and training by introducing new requirements that prescribed criteria be considered by a school or educational institution prior to entering into an agreement to formally affiliate a residential premises, and that where a residential premises is exempt from the operation of the Act by virtue of formal affiliation, notice of that exemption be prominently displayed in a public or common area. Offences relating to misrepresentation or engaging in misleading conduct in relation to formal residential affiliation are included. [18 to 21]

Consumer Credit (Victoria} and Other Acts Amendment Act 2008

10. The Bill amends the Act in respect to several unproclaimed provisions which are no longer necessary to bring into force. The provisions related to the introduction of an enhanced credit provider registration scheme and a default commencement of 1 July 2009 was originally provided. As a contingency measure the relevant provisions (sections 7 to 19, 21, 22 and 24) are not being repealed by the Bill. In the event the transfer of regulation of credit provider registration to the Commonwealth does not proceed the provisions may need to be proclaimed. Therefore the provisions will have no default commencement date. [22]

Note: From the ~econd Reading Speech - The commencement of these provisions is no longer necessary, as a comprehensive national credit provider and finance broker licensing scheme announced earlier this year by the Council of Australian Governments is being developed by the Commonwealth government for introduction in mid 2009. The Bill also makes technical amendments to ensure that related provisions introducing external dispute resolution requirements can come into operation on 1 July 2009, if not proclaimed ta come into operation earlier.

11. The Bill makes consequential amendments to the Consumer Credit (Victoria) Act 1995, the Retirement Villages Act 1986, the Relationships Act 2008 and the Veteran's Act 2005.


[Clauses]

With the exception of clauses 18, 20 and 21 the provisions in the Bill come into operation on the day after the day on which it receives the Royal Assent. Clauses 18, 20 and 21 (Residential Tenancies Act 1997) of the Bill commence on proclamation but not later than by 1 March 2010. [2]

Note: From the explanatory memorandum - Clauses 18, 20 and 21 will come into operation on a day or days to be proclaimed. Their commencement is deferred in order for consultation to be undertaken and regulations to be made prescribing criteria a school or institution must consider prior to entering on agreement referred to in section 21 of the Residential Tenancies Act 1997, the form of the notice required to be displayed under new section 5058 of that Act and the endorsement of such notices.

21


Delayed commencement -Inappropriate delegation of legislative power- Need for consultation and new regulations - Whether sufficient reason to delay commencement

The Committee notes that the explanatory memorandum draws attention to the delayed commencement of several clauses in the Consumer Credit (Victoria) and Other Acts Amendment Act 2008 and the Residential Tenancies Act 1997.

The Committee refers to its Practice Note No. 1 concerning delayed commencement provisions exceeding one year from introduction in the Parliament. In such circumstances the Committee will seek to ensure that Parliament has sufficient information to determine whether a delay in commencement is justified.

The Committees notes the explanatory material provided in clauses 2 and 22 of the Bill.

The Committee draws attention to the provisions.


Liquor Control Reform Amendment (Enforcement) Bill 2008


Purpose

2 December 2008 4 December 2008 legislative Assembly Hon. Tony Robinson lVI LA Minister for Consumer Affairs

The Bill amends the Liquor Control Reform Act 1998 (the 'Act') to make provision for the appointment of compliance inspectors; clarify the Director's powers in relation to security cameras; require associates of licensees to be declared and for other purposes.

Background

The provisions in the Bill-

1. Establish a new civilian compliance Directorate within the Department of Justice to complement those existing enforcement bodies (the Director and Victoria Police) under the Act. Compliance inspectors will be empowered with entry, search and seizure powers, power to require a person to state name and address or to demand proof of age, seize evidence of age, seize liquor from a minor and to serve infringement notices for most offences. However unlike police, inspectors will not be empowered to arrest under-age persons. [21], [26]

2. Provide a new power for the Director to suspend a licensee's licence for up to five days if the Director believes on reasonable grounds that the licensee has engaged in conduct that would constitute grounds for a VCAT inquiry and there is a danger that, unless the licence is suspended, a person may suffer substantial harm, loss or damage as a result of that conduct. The Director must give notice of an intention to suspend and state the reasons for doing so under this new power and allow the licensee to respond to the proposed course of action. [12 and 13]

3. Improve the operation of the Director's breach notice power by removing the requirement that the director must believe that the licensee will continue to engage in conduct that would constitute grounds for a VCAT inquiry before issuing a breach notice. lt will be sufficient for the director to believe that licensee has engaged in such conduct. [11]

22

4. Enable the Director to undertake a broad based inquiry into any matter relevant to the operation of the Act, including an inquiry into activities regulated by the Act in any area or locality of the State. [22]

5. Clarify that the Director may impose licence conditions requiring security cameras to be affixed to authorised premises, other premises, land (such as car parks), fixtures or other objects that are under the control of the licensee and not just to the licensed premise itself. [8]

6. Narrow the defence that is available for licensees or permittees who are charged with the offence of permitting drunken or disorderly persons to be on licensed or authorised premises to require a licensee or permittee to demonstrate that he or she did not know that drunken or disorderly persons were on the premises and that they had taken reasonable steps to ensure that such persons were not on the premises. The current provisions are satisfied if one of the limbs of the test is established. [16]


[Clauses]

Substitutes new provisions in respect to powers of authorised officers (new sections 129, 130 and 130A to 130F). The sections deal with right of entry, search warrants and like matters.

Protection against self incrimination - Protection in criminal proceedings but requires documents to be produced

New section 130F provides for protection against self incrimination in relation to the requirement to answer questions or provide information but does not protect a person from refusing or failing to produce any document, equipment or other thing that they are required to produce by or under the Act.

Where a person claims, before they produce the document, equipment or other thing that the production would tend to incriminate them, the document, equipment or other thing is not admissible in evidence against that person in criminal proceedings. [19]


Melbourne Cricket Ground Bill 2008


Purpose

2 December 2008 4 December 2008 Legislative Assembly Hon. James Merlino MLA Minister for Sport and Recreation

The Bill re-enacts and further provides for the law relating to the Melbourne Cricket Ground (MCG) in order to create a simpler legislative framework for the MCG and repeals the existing Acts relating to the MCG.

Background

The Bill includes a preamble that summarises the background to the Bill including key Orders in Council, Crown grants, reservations and legislation made and enacted in relation to the MCG since 1861.

The Bill establishes the Melbourne Cricket Ground Trust (the 'Trust') and provides that the Trust is a body corporate with perpetual succession; has a common seal; may sue or be sued in its corporate name; is

23


capable of acquiring, holding and disposing of real and personal property; and is capable of doing or suffering anything which by law bodies corporate may do or suffer.

The Acts to be repealed are the Melbourne Cricket Ground Act 1933, the Melbourne Cricket Ground Act 1951; the Melbourne Cricket Ground (Trustees) Act 1957, the Melbourne Cricket Ground Act 1983, the Melbourne Cricket Ground Act 1984, the Melbourne Cricket Ground (Guarantees) Act 1984; and the Melbourne Cricket Ground Trust Act 1989.

[Clauses]

Unauthorised commercial exploitation of name -A person, in the course of a trade or business, must not use the name "Melbourne Cricket Ground" or the initials "MCG" as the name or part of the name of another place, unless authorized by the Trust. The provision differs from section 8A of the Melbourne Cricket Ground Act 1933 in that a penalty for breach of the provision is now provided. [26]

Regulations- The Trust may make regulations concerning admission to the Ground, collection of fees and charges and the preservation of good order and behaviour. [32]

Existing rights preserved- Existing leases and licences made under the Melbourne Cricket Ground Act 1933 (to be repealed) are preserved. [33]

Pre-existing Trust continues - The Bill provides that the current Trust is deemed to continue in existence and its members continue to hold office for the remainder of their appointment. [33(2)]


Occupational Health and Safety Amendment (Employee Protection) Bill 2008


Purpose

2 December 2008 4 December 2008 Legislative Assembly Hon. Rob Hulls MLA Minister for Industrial Relations

The Bill amends the Occupational Health and Safety Act 2004 (the 'Act') to create a civil cause of action for employees or prospective employees who are discriminated against by an employer or prospective employer on grounds that relate to occupational health and safety (discrimination on the basis of OHS activity as defined in section 76(2) and new section 78B).

Background


1. Enable an employee or prospective employee to bring a civil action where the employer or prospective employer engages in discriminatory conduct (new sections 78A-78E). [6]

24

Notes:

1. Section 76 of the Act currently establishes such discrimination as a criminal offence with penalties, and section 78 enables a court to make orders for damages or other redress if the employer or prospective employer is convicted. However, the current provisions do not enable the employee or prospective employee who is discriminated against to commence their own

action to recover damages or seek other forms of redress in the event that the employer or prospective employer is not convicted of the criminal offence, or the court does not order the type or extent of redress the employee or prospective employee is seeking.

2. A successful civil action under new Subdivision 2 does not prevent a prosecution for the existing criminal offence (as modified by this Bill in Subdivision 1}.

3. An employee or prospective employee may only obtain damages or other redress once, either as a result of the criminal prosecution or from the civil action where the damages or redress are based on the same conduct.

4. The new civil action exists regardless of any criminal prosecution in respect to the same conduct.

5. In proceedings for a criminal offence under section 76 the defendant bears the onus of proving that that reason alleged in the charge was not the 'dominant reason' for engaging in the conduct. In the civil form of action the employer, prospective employer or third party bears the onus of proving that the reason alleged in the complaint was not the 'substantial reason' for the conduct.

2. Provide protection for employees or prospective employees against discriminatory conduct instigated by third parties (new section 78C). [6]

3. Provide that the court may order the payment of damages or other redress to an employee or prospective employee whose civil action is successful. [6]

4. Remove the penalty of imprisonment from the existing criminal offence provisions of the Act in relation to discriminatory conduct. [4]

5. Amend the existing provisions of the Act in relation to discriminatory conduct to include authorised representatives of registered employee organisations among those with whom an employee or prospective employee may engage in activity related to occupational health and safety that is protected by the Act. [4]


[Clauses]

The Bill amends the existing criminal offence provisions in section 76 of the Act to extend the categories of people whom an employee or prospective employee may assist, provide with information or raise an occupational health and safety issue while being protected against discrimination by an employer to include an authorised representative of a registered employee organisation. The clause also removes the penalty of imprisonment of up to six months [4]. (Refer to the Charter Report below).

Note: Section 77 of the Act provides that for an offence against section 76 the defendant bears the onus of proving that the reason alleged in the charge was not the dominant reason why the defendant engaged in the conduct.

Presumption of innocence - Reverse onus to prove prohibited discrimination not the dominant reason to engage in the conduct

1. Rights and freedoms- Presumption of innocence- Criminal offence expanded

The Committee notes that the amendments made widen the application of the criminal offence provision in section 76 of the Act and that by virtue of section 77 of the Act the defendant in such proceedings bears the burden of proving that the prohibited conduct was not the dominant reason for engaging in the conduct.

The Committee observes that the explanatory memorandum does not refer to the expansion of the reverse onus offence in respect to the criminal offence under Subdivision 1, of Division 9 of Part 7.

• The Committee refers to the Charter Report below.

25


2. Rights and Freedoms - Fair civil proceedings

The Committee notes the reverse onus provision (new section 78£(2)) applies in proceedings under section 78A and 78V which respectively provides for a civil form of action against prohibited discriminatory conduct by an employer or prospective employer or by a third party.

The reverse onus provision requires the defendant to prove that the prohibited reason for the conduct alleged in the complaint was not the 'substantial reason' for the conduct.

The Committee has previously noted circumstances where a reverse onus may be justified in circumstances where alleged facts may be more conveniently disproved by one party or be in the exclusive or peculiar knowledge of that party than the party alleging, and therefore bearing the ordinary burden of proof of that fact.

The Committee refers the question of the appropriateness of the reverse onus provision for the consideration of the Parliament.

Charter Report

Presumption of innocence - Extension of existing criminal offence that places an onus of proof on defendants -Not addressed in statement of compatibility

Summary: Clauses 4(1) & (2) engage the Charter's presumption of innocence. The statement of compatibility does not address these clauses. The Committee will write to the Minister seeking further information as to whether and how the clauses are compatible with the Charter.

The Committee notes that clauses 4(1) & (2) extend the scope of an existing criminal offence in s. 76 of the Occupational Health and Safety Act 2004. Section 76 makes it an offence for an employer to take various actions against employees or prospective employees because of their role in relation to health and safety. Clauses 4(1) & (2) extend the offence to cover employees who assist, give information to or raise issues or concerns with an authorised representative of a registered employee organisation.

Section 77 provides that, in proceedings under s. 76, defendants bear the onus of proof on the issue of the reasons for their conduct. The Committee therefore considers that clauses 4(1) & (Z) may limit the Charter right of defendant's charged with an offence to be presumed innocent of that offence until proved guilty.16

.

Although the Statement of Compatibility addresses other clauses of the Bill that impose a similar reverse onus on civil defendants (who do not have a right to be presumed innocent), the Statement does not address whether and how clauses 4(1) & (Z) (which apply to criminal defendants) are compatible with the Charter.17 The Committee observes that, given the introduction of parallel civil proceedings for discrimination against employees on health and safety grounds, the usual justification for reverse onuses in regulatory offences- that they are necessary to ensure compliance with the regulations- may no longer apply. An evidential burden on the defendant may therefore be a 'less restrictive means reasonably available to achieve the purpose of the existing offence.18

The Committee will write to the Minister seeking further information about whether and how the reverse onus in s. 77 is compatible with the Charter. Pending the Ministers response, the Committee draws attention to clauses 4{1} & {2}.


16

17

18

26

Charters. 25(1)

Charter s. 28(3)(a) requires that the Statement state 'whether, in the member's opinion, the Bill is compatible with human rights and, if so, how it is compatible'.

Charters. 7(2)(e).

Alert

!Resources industry legisiation Amendment Act 2008


!Purpose

2 December 2008 4 December 2008 legislative Assembly Hon. Peter Batchelor MLA Minister for Energy and Recreation

Nos. 1 to 15 of 2009

The Bill amends the Mineral Resources (Sustainable Development) Act 1990 {the 'Act') to provide for the regulation of extractive industries under the Act and repeal the Extractive Industries Development Act 1995 which currently governs extractive industry activity. The Bill also makes necessary consequential amendments and removes redundant provisions.

!Background


1. Repeal the Extractive Industries Development Act 1995 and provide instead for the regulation of extractive industries through an amended Mineral Resources (Sustainable Development) Act 1990. [4-20], [41]

2. Extend the ability to make codes of conduct currently found in the Act to extractive industries. [32]

3. Partially deregulate work plan requirements for small quarries by exempting operators of sites up to five hectares in area and five metres in depth {where no clearing of native vegetation or use of explosives is required) from current work plan requirements and instead be required to comply with a code of practice that contains a set of standard work conditions. [20 and 40]

4. Establish a duty to consult with the community on matters that may effect the community throughout the period of any extractive industry work authority. [20]

5. Remove the requirement to apply for a planning permit where an Environment Effects Statement is required. [20]


Sa~arnes legisiation Amendment {Salary Sacrif~ce) Act 2(Q)(Q)3

Introduced Second Reading Speech Royal Assent House Member introducing Bill Portfolio responsibility

!Purpose

2 December 2008 2 December 2008 11 December 2008* legislative Assembly Hon. Tim Holding MLA Minister for Finance, WorkCover and TAC

The Act amended the Constitution Act 1975, the County Court Act 1958, the Magistrates' Court Act 1989, the Victorian Civil and Administrative Tribunal Act 1998, the Parliamentary Salaries and Superannuation Act 1968, the Attorney-General and Solicitor-Genera/ Act 1972, the Public Administration Act 2004 and the Public Prosecutions Act 1994 to permit salary sacrificing arrangements by various judicial officers, office holders and Members of Parliament and validated previous salary sacrifice arrangements entered into.

27


*Note: The Act received Royal Assent on 11 December 2008 and the Committee provides this report pursuant to section 17{ c) of the Parliamentary Committees Act 2003.

Background

The Act concerned the ability of the holders of certain offices and Members of Parliament to enter into effective salary sacrifice arrangements as defined by Australian Taxation Office {ATO) Ruling 2001/10.

The Act sought to ensure that arrangements already entered into, and similar arrangements if they are entered into in the future, meet the requirements of the ATO ruling.

The relevant office holders within the scope of this Bill are-

• office holders people appointed to public offices whose remuneration is fixed or determined by the Act creating the office, by the statutory instrument appointing them or by the Governor in Council;

• judicial officers, some of whom are covered by the Constitution Act 1975 and some under other Acts;

• Members of Parliament.

None of these categories of offices are employees. Parliament has established certain specific offices, and provided for a mechanism by which people can be appointed to those offices, and remunerated while holding the office. The remuneration arises from holding the office, not from performing any specific work.


[Clauses]

Rights and freedoms - Judicial independence - Separation of powers - Whether an executive discretion relating to remuneration limits judicial independence - Reality of and perception of judicial independence

The Committee notes that salary sacrifice arrangements as defined by the ATO are at the discretion of the employer or paying authority (the executive branch). The Committee observes that a hallmark of judicial independence is the inability of the executive to diminish remuneration during judicial tenure. To the extent that the executive retains any discretion to allow salary sacrifice or the extent of that arrangement under the ATO guidelines may be perceived as the exercise of a discretion or negotiation concerning judicial remuneration during tenure.

The Committee raises this matter more fully under the Charter Report below.

Rights and Freedoms - Retrospectivity- Deeming past arrangements to be valid

The Committee notes that throughout the Bill there are deeming provisions validating past arrangements entered into by the relevant office holder or Member. The Bill also deems that such arrangements are to be regarded as never constituting a reduction in salary of the relevant office holder or Member. For example see [3{2) and (4)], [7(2) and (4)] and [14].

Subject to issues relating to judicial independence, the separation of powers and the Committee's comments in the Charter Report the Committee accepts that the provisions may be beneficial to statutory office holders, the judiciary and members of Parliament and that therefore a retrospective deeming provision may be appropriate.

28

Charter !Report

Independent court or tribunal- Authorisation for judicial officers and tribunal members to enter into a salary sacrifice arrangement - Whether a negotiation over remuneration

Summary: Sections 3-5, 7-9 & 11-13 authorised various judicial officers and tribunal members to 'enter into an arrangement' to engage in salary sacrificing. The Committee is concerned that individual officers and members may now be required or permitted to negotiate with the executive about their remuneration. Such negotiations may limit the Charter right of litigants to a hearing before an 'independent' court or tribunal. The Committee will write to the Minister seeking further information about how salary sacrific[ng is arranged.

The Committee notes that ss. 3-5, 7-9 & 11-13, by amending other statutes, authorised various judicial officers and tribunal members to 'enter into an arrangement' to engage in salary sacrificing. The amendments provide that such arrangements cannot be initiated, varied or revoked without a notice by the officer or member. However, the amendments do not identify whether or not any other conditions, including discretionary considerations, must be satisfied or whether processes must be followed before a salary sacrificing arrangement can commence. The Committee is concerned that, if the consent of a member of the executive is necessary before officers and members can obtain the financial benefits of salary sacrificing, then individual officers and members may now be permitted or required to negotiate with the executive about their remuneration. Such negotiations may limit the Charter right of litigants to a hearing before an 'independent' court or tribunal.19

In relation to an equivalent right in Canada's Charter, that nation's Supreme Court has held20:

[U]nder no circumstances is it permissible for the judiciary - not only collectively through representative organizations, but also as individuals - to engage in negotiations over remuneration with the executive or representatives of the legislature. Any such negotiations would undermine the appearance of judicial independence, because the Crown is almost always a party to criminal prosecutions before provincial courts, and because salary negotiations engender a set of expectations about the behaviour of parties to those negotiations which are inimical to judicial independence.

The Court stated that its reasoning applies, not only to salaries, but to all'benefits'.21

Salary sacrificing is obviously beneficial to judicial officers and tribunal members; however, the Charter right to an independent court or tribunal is for the benefit of litigants, not officers or members. As the Supreme Court of Canada explained 22

:

The purpose of the collective or institutional dimension of financial security is not to guarantee a mechanism for the setting af judicial salaries which is fair to the economic interests of judges. Its purpose is ta protect an organ af the Constitution which in turn is charged with the responsibility of protecting that document and the fundamental values contained therein. If judges do not receive the level of remuneration that they would otherwise receive under a regime of salary negotiations, then this is a price that must be paid.

To avoid the risk of negotiation, the Canadian Court requires that all aspects of judicial remuneration be fixed by objective legal standards and that all alterations to those standards be preceded by a ruling from an independent commission.

19

20

21

22

Charters. 24(1)

Reference re Remuneration of Judges of the Provincial Court (P.E.I.), [1997) 3 S.C.R. 3, [134]

lbid at [136]

lbid at [190]

29


The Committee will write to the Minister seeking further information as to whether or not the entry into an arrangement to engage in salary sacrificing requires the consent of a member of the executive, the exercise of a discretion or the application of uncertain legal rules.

Pending the Minister's response, the Committee draws attention to ss. 3-5, 7-9 and 11-13.

Charter requires that the Committee report on every bill- Consequences of non-compliance

The Committee notes that it did not report on the compatibility of the Salaries Legislation Amendment (Salary Sacrifice) Bill 2008 while it was a bill, although it is now exercising its power to report on the bill now that it has become an Act?"

The Committee observes that Charters. 30 provides that the Committee 'must consider any bill' and 'must report ... as to whether the bill is incompatible with human rights.' The Committee is concerned that it is mandatory for the Committee to report on a bill while it is a bill. In contrast to other procedural provisions of the Charter, 24 there is no savings provision for the validity of a law that was passed without compliance with Charters. 30.

The Committee will write to the Attorney-General seeking further information as follows:

1. Has Charter s. 30 been complied with in relation to the Salaries Legislation (Salary Sacrifice} Bill 2008?

2. If not, what are the consequences of non-compliance?

3. Should Charters. 30 be amended to clarify its operation in light of the Committee's power to report on an Act under s. 17( c}(i} of the Parliamentary Committee Acts 2003?

4. Should the Charter be amended to clarify the consequences of any non-compliance with Charter s.30?

Pending the Attorney-General's response, the Committee draws attention to Charters. 30.


Transport Legislation Amendment (Driver and Industry Standards) Act 2008


Purpose

3 December 2008 3 December 2008 11 December 2008* Legislative Assembly Hon. Lynne Kosky MLA Minister for Public Transport

The Act amended the Transport Act 1983 (the 'Act') in relation to taxi industry and commercial passenger driver accreditations; and eliminated regulatory overlap by amending the Working with Children Act 2004

23

24

30

Parliamentary Committees Act 2003, s. 17(c)(ii)

E.g. Charter ss. 29, 31(9) & 36(5).


to provide for exemptions from also holding a working with children check for certain commercial passenger vehicle drivers who are accredited under the Act.

*Note: The Bill received Royal Assent on 11 December 2008 and the Committee provides this report pursuant to section 17{c) of the Parliamentary Committees Act 2003.


[Clauses]

[4]. Subclause (3) amended section 130A(2) of the Act with the effect that a finding under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 of not guilty by reason of mental impairment is brought within the taxi industry accreditation scheme to deem such a finding as a finding of guilt. The effect of the amendment is to make it mandatory for the Director of Public Transport (the 'Director') to refuse accreditation if the applicant has been found guilty of murder on the ground of insanity or mental impairment.

The Committee notes this extract from the Statement of Compatibility-

Previously the procedure for people falling within this class was that the Director could consider whether the person was not 'technically competent and sufficiently fit and healthy to provide the service' or did not satisfy the public care objective under s 164 of the Transport Act.

Note: A person may appeal a relevant finding of the Director, whether discretionary or mandatory, to VCAT pursuant to section 1600 of the Transport Act 1983.

[5]. Amended section 132D of the Transport Act 1983 relating to the accreditation of taxi industry participants.

Subclauses (1) and (2) contained provisions consequential to the amendments in clause 4. Subclause (1) omits providers of taxi-cab network services from the application of the mandatory refusal provision that relates to persons being found guilty of all tier 1 offences.

Subclause (2} inserted a new subsection to provide for the mandatory refusal of applications for accreditation for providers of taxi,cab network services if the person has been found guilty of a tier 1 offence other than an offence under section 318 of the Crimes Act 1958.

Subsection (3) inserted a new subsection in section 132D of the Transport Act 1983 to provide that the licensing authority must not refuse to issue an accreditation on a ground that has previously been found by VCAT not to be a bar to accreditation. The amendment overrides the mandatory refusal provisions in the Act that would otherwise apply.

[9]. Amended section 163(1} of the Act to provide that a finding under the Crimes (Menta/Impairment and Unfitness to be Tried) Act 1997 of "not guilty" because of mental impairment is deemed to be a finding of guilt for the purposes of the commercial passenger vehicle driver accreditation scheme.

,[15]. Inserted additional factors that VCAT must be satisfied of if it is to make an order to issue, reinstate or re-new accreditation.

VCAT must only make an order if it is satisfied that it is in the public interest to make an order and making the order would not pose an unjustifiable risk to the safety of persons using services. The specific range of factors that VCAT must have regard to are set out in section 168 of the Act.

Charter Report

The Committee notes that this Act raises the same concerns in relation to compliance with Charters. 30 as those raised by the Committee in relation to the Salaries Legislation (Salary Sacrifice) Act 2008.

31

Scrutiny of Acts and Committee

The Committee will therefore also write to the Attorney-General seeking the same information in relation to the Transport Legislation Amendment (Driver and Industry Standards) Bi/12008.

Impairment discrimination - Barriers to accreditation for people found not guilty of certain offences on the basis of mental impairment - Whether discrimination - Whether reasonable limit

Summary: Section 9 raises the same human rights concerns that the Committee raises in its report on clause 3{3)(d) concerning the Bus Safety Bill.

The Committee notes that s. 9, amending s. 163(1)(d) of the Transport Act 1983, extended an existing rule that equates people found not guilty on the basis of 'mental impairment' are to be treated as if they were found guilty for the purposes of the 'driver accreditation' provision of the Act. 25 Such people hence became subject to the various special barriers for certain offenders to accreditation (or continuing accreditation) as operators of commercial passenger vehicles under ss. 169, 169E & 169F of the Transport Act 1983.26 Section 9 raises the same human rights concerns that the Committee raises in its report in this Alert Digest on clause 3(3)(d) concerning the Bus Safety Bill.

The Committee will write to the Minister seeking further information as to whether or not the Director's general powers to refuse or cancel registration are a less restrictive means reasonably available to achieve the purpose of protecting taxi passengers from people who are found not guilty of crimes on the basis of mental impairment. Pending the Ministers response the Committee draws attention to s. 9.

Presumption of innocence - People charged with certain offences cannot be accredited unless they demonstrate that the accreditation is appropriate having regard to public care - Not addressed in statement of compatibility

Summary: The Committee considers that s. 11{2) engaged the Charter's right to be presumed innocent. The Statement of Compatibility did not address this section. The Committee will write to the Minister seeking further information as to whether and how s. 11(2) was compatible with the Charter.

The Committee notes s.11(2), which amended s. 169 of the Transport Act 1983, extended barriers to accreditation for people convicted of 'tier 2' offences to people charged (but not convicted) of 'tier 1' offences. The Director is now barred from accrediting such people unless they demonstrate that accreditation 'is appropriate having regard to the public care objective' (which is that commercial vehicle services be provided with safety, comfort, amenity and convenience; and be carried out without fraud or dishonesty.) The Committee considers that s. 11(2) engaged the Charter right of such persons to be presumed innocent of their charges until proved guilty. 27

While the statement of compatibility addressed sections of the Act that applied to people found not guilty· on the basis of mental impairment (who do not have the right to be presumed innocent), the. statement

25

26

27

32

The amendments extended s. 163(1)(d) to cover findings in relation to alternative offences and findings at a special hearing of someone who is not fit to be tried.

For tier 1 offences, the Director now must refuse or cancel accreditation: ss. 169(2) & 169E. For tier 2 and 3 offences there is now, respectively, a presumption against and a discretion to refuse accreditation, and a discretion to cancel accreditation: ss. 169(3) & (4) & 169F.

Charters. 25(1).


did not address whether and how s. 11(2) (which covers people who are currently criminal defendants) is compatible with the Charter.

The Committee reiterates its view that, while treating a charged person differently because of the events or evidence that led to their charge is compatible with the Charter, disadvantaging a person because of the mere fact that they are charged may limit their Charter right to be presumed innocent. Even if this principle is limited to public pronouncements that suggest that a person is guilty, the Committee is concerned that s. 11(2) amounts to a public pronouncement by the legislature that people are presumed to be a threat to public safety or amenity merely because they have been charged with tier 2 offences. The Committee observes that the accreditation provisions of the Bus Safety Bill 2008 do not contain an equivalent presumption and instead merely permit the Director to postpone an accreditation decision where the outcome of a charge may be relevant to that decision.28

The Committee will write to the Minister seeking further information about whether and how s. 11{2} was compatible with the Charter. Pending the Minister's response, the Committee draws attention to this section.


r~ransport legislation General Amendments Bm 2008

Introduced Second Reading Speech House Member introducing Bill Responsible Minister Portfolio responsibility


Transport Act .1983

4 December 2008 4 December 2008 Legislative Assembly Hon. Peter Batchelor MLA Hon. Lynne Kosky MLA Minister for Public Transport

To improve the administrative process of renewing the authorisation of enforcement officers in the rail, tram and bus sectors. The amendment will require the Director of Public Transport to consider the probity criteria which apply to initial authorisations when considering whether to renew an authorisation or to carry out an inquiry into an authorisation. The criteria cover issues of competence and character. [5]

Children, Youth and Families Act 2005

To provide the Registrar of the Children's Court the same powers as a magistrate to refer a young person to attend an approved program so that attendance at such a program can be used as an alternative sentencing arrangement for child offenders if the court considers it appropriate. [12]

Note: Children who commit transport offences are generally dealt with under a special infringement penalty process called CA YPINS (children and young persons' infringement notice system).

Rail Safety Act 2006

To enable the Director, Public Transport Safety to intervene and assess the safety environment in situations where a Rail operator has refused access to rail land for works (such as preventative maintenance to

28 Clause 29.

33


overhead bridges by VicRoads) or require works to cease where the Rail operator considers the works present safety issues the. The Director may issue directions on safe arrangements. The Director will essentially be undertaking a deadlock resolution role. [11]

Rail Corporations Act 1996

• to enable State parties to include in contracts with third parties, such as property developers, provisions requiring the third party to pay penalties if their works disrupt rail operations. [10]

• to provide for the abolition of the Southern Cross Station Authority, which was established to manage the now completed redevelopment of the former Spencer Street station. The Secretary of the Department of Transport, on behalf of the Crown, will carry out the authority's remaining functions and succeed to all its property, rights and liabilities. The Bill provides for the initial transfer of staff to the Department of Transport. [6 to 8]

Borrowing and Investment Powers Act 1987

To make amendments consequential upon the amendments made by the Bill to the Rail Corporations Act 1996 abolishing the Southern Cross Station Authority. [13]


Transport Legislation MisceUaneous Amendments Bill 2008

Introduced 2 December 2008 Second Reading Speech House

3 December 2008 legislative Assembly


Hon. Tim Pallas MLA Minister for Roads and Ports

Background

The Bill amends the following Acts.

Marine Act 1988

1. Extend the range of sanctions available to the Director of Marine Safety in the event of an actual or anticipated safety breach, primarily in the commercial boating and shipping area by making provision for inspectors to issue improvement notices and prohibition notices. lt is an offence to contravene such notices and VCAT is given a supervisory role in reviewing decisions concerning such notices. [4]

Note: Improvement notices require a person to remedy a contravention or likely contravention of a marine safety law within a specified period. Prohibition notices require a person to cease an activity which is considered to pose an immediate risk to the safety of a person until a clearance certificate is given.

2. Expand the range of sanctions available to courts in relation to convictions for breaches of marine safety laws. A court will be entitled to make three new categories of order:

34

• a commercial benefits penalty order, requiring a person to pay a fine where they have benefited financially from their commission of a marine safety offence;

• a supervisory intervention order, imposing conditions on a person's ongoing activities, in order to improve their safety compliance; and

• an exclusion order, banning persons for a certain period from carrying out marine operations. [4]

3. Give Marine Safety Victoria power to collect and disclose information for the purpose of assisting Consumer Affairs Victoria with the enforcement of a national marine safety standard developed by the National Marine Safety Committee. The standard is known as the Australian builders plate standard and will require an 'Australian builders plate' to be affixed to most recreational vessels bearing information about the vessel. [3]

Port Services Act 1995

4. Ensure that when carrying out their functions, port corporations are required to have appropriate regard to the benefits of competition among port service providers and that relevant long-term port development strategies are prepared and maintained for each commercial trading port. [6-8]

Transport Act 1983

5. Give the Chief Investigator a power to require persons to attend and answer questions during the investigation of a public transport or marine safety matter to facilitate the speedy investigation of a public transport or marine incident. Failure to attend before the Chief Investigator or a refusal to take an oath or make an affirmation or a refusal or failure to answer a question is an offence.

The answers to questions posed by the Chief Investigator are not admissible in evidence against the person in a criminal proceeding. The Bill provides that the exemption does not apply in the case of a coronia! inquiry or if the court considers that failure to admit a report into evidence in a criminal proceeding could prejudice the fair trial of the accused. [28-29]

Southern and Eastern Integrated Transport Authority Act 2003

6. Expand the role of the Southern and Eastern Integrated Transport Authority (established to deliver the Eastlink project) to enable it to undertake other road transport related projects. [ZS-27]

Road Management Act 2004

7. To give the Secretary of the Department of Transport the power to install, remove and relocate bus stops and bus stop infrastructure and empower the Secretary to prevent others from removing infrastructure installed by the Department, and prevents people from moving the location of bus stops without the secretary's consent.

The Secretary is given the power to develop guidelines for bus stops in consultation with VicRoads, municipal councils and other interested parties such as bus operators.

The amendments also allow better monitoring of bus stop infrastructure across the network by obliging councils to notify the secretary when a significant item such as a shelter or seat is installed, removed or relocated. [23]

8. Give in principle priority to designated modes of transport on specified parts of the road network with the objective of the road network being managed in a way that makes specified routes more attractive for certain modes of transport, increasing efficiencies in the road network. Relevant Ministers will have the power to specify that certain roads or parts of roads to be priority roads for trams, buses, bicycles, pedestrians and freight. [14-15]

9. Expand the membership of the Utilities Reference Panel to include a member representing the interests of bus operators. [11]

10. Clarify and strengthen rail safety requirements by addressing key safety issues at points of road-rail interface such as level crossings. The Bill expands the coverage of safety duties to ensure that all appropriate parties are subject to the duties and to ensure there are no 'gaps' in the legislation; replicates safety duties presently applying to road authorities to rail operators working near road infrastructure; sets benchmarks as to what it actually means to ensure safety 'so far as is reasonably

35


practicable' equivalent to provisions prescribed in the Rail Safety Act and the Occupational Health and Safety Act.

Establishes parameters on how notification of works must be given to appropriate persons, specifically what form notification must take and how far in advance it must be given. [18·21]


Workplace Rights Advocate (Repeal} Bill 2008


Purpose

2 December 2008 4 December 2008 legislative Assembly Hon. Rob Hulls MLA Minister for Industrial Relations

The Bill repeals the Workplace Rights Advocate Act 2005 (the 'Act') and makes consequential amendments to the Victorian Civil and Administrative Tribunal Act 1998 and the Public Sector Employment (Award Entitlements) Act 2006.

Background

The Act created the Office of the Workplace Rights Advocate (the Advocate) to provide information about, and promote and monitor the development of fair industrial relations practices in Victoria. The Act also provided for the Governor in Council to appoint a person to be the Advocate.

Amendments to Commonwealth industrial relations laws, including the abolition of Australian Workplace Agreements and the introduction of a new No Disadvantage Test for certified agreements has changed the role of the Advocate and as a consequence the Advocate is no longer required to apply a fairness test to public sector agreements.


36

Ministerial CorresfP)©Il\ltdJell'il<ece

Assisted Reproductive Treatment Bill 2008

The Bill was introduced into the Legislative Assembly on 9 September 2008 by the Hon. Rob Hulls MLA.

The Committee considered the Bill on 6 October 2008 and wrote to the Minister on 7 October 2008. The Committee wrote to the Minister again on 6 November 2008 in relation to a further matter reported in Alert Digest No. 12 of 2008.

Committee's Comment

Charter report

Freedom of expression - Offence to make certain statements about surrogacy - Altruistic surrogacy - Public expressions of personal views

The Committee notes that clause 45 makes it an offence to publish various statements about surrogacy. The Committee considers that clause 45 engages the Charter right to freedom of expression.

The Explanatory Memorandum states that clause 45 is:

... (i]n keeping with the need to ensure that surrogacy arrangements are not commercialised and are altruistic ...

While the Committee accepts that preventing the advertising of commercial surrogacy (which is banned by the Bill) is compatible with the Charter's right to freedom of expression, the Committee is concerned that clause 45 may go further than this purpose in two respects:

First, clause 45 also applies to publications about non-commercial surrogacy, which is permitted under Part 4 of the Bill. Other jurisdictions that permit altruistic surrogacy either restrict their ban to commercial surrogacy or advertisements, or distinguish between commercial and non-commercial surrogacy.

Second, the ban on publications is not limited to advertisements or publications intended to procure or facilitate a surrogacy arrangement. Rather, it includes 'statements' or 'documents' (including in the media or online) to 'the effect that' a person 'moy be willing' to be involved in a surrogacy arrangement either as a prospective parent (clause 45(1)(a)) or a as a surrogate mother (clause 45(1)(f)). Clause 45 may therefore criminalise public expressions of a person's personal views, e.g. a media column where a person criticises the existing law for impeding their desire to have a baby via a surrogate; or a blog post discussing the ethics of surrogacy where the author remarks that she'd be willing to be a surrogate if a close relative was infertile. The Committee observes that criminalising such statements may chill public discussions about an important social issue.

The Committee will seek further information from the Minister as to whether clause 45 will apply to people "'!ho publicly mention their own willingness to enter into a surrogacy arrangement as part of public discussions on the issues associated with surrogacy. Pending the Ministers response, the Committee draws attention to clause 45.

37


Minister's Response

I refer to your letter dated 6 November 2008 in relation to clause 45 of the Assisted Reproductive Treatment Bill 2008 (ART Bill} which provides that it is an offence to publish certain statements about surrogacy.

You have asked me to provide further information as to whether clause 45 will apply to people who publicly mention their own Willingness to enter into a surrogacy arrangement as part of public discussions on the issues associated with surrogacy.

The Report by the Scrutiny of Acts and Regulations Committee {Committee) in relation to the ART Bill contained in Alert Digest No 12 notes that the ban on publications is not limited to advertisements or publications intended to procure or facilitate a surrogacy arrangement. Rather, it includes 'statements' or 'documents' (including in the media or online) to 'the effect that' a person 'may be Willing' to be involved in a surrogacy arrangement either as a prospective parent or as a surrogate mother.

The Committee notes that clause 45 may criminalise public expression of a person's personal views, for example, a media column where a person criticises the existing law for impeding their desire to have a baby via a surrogate or a blog post discussing the ethics of surrogacy where the author remarks that she would be willing to be a surrogate if a close relative was infertile.

Clause 45 is not intended to prohibit conduct such as the examples that the Committee provided in its Report. I am advised that in interpreting the section, the general words highlighted by the Committee will be limited by the more specific words around them, such as:

• the scope of the words 'statement' and 'document' will be necessarily narrowed by their appearing in context with 'advertisement' and 'notice';

• paragraphs 45{1}{a) and 45{1}{f) will be read in conjunction with paragraphs 45 (l)(b}-(e) which clearly refer to someone trying to arrange a surrogacy arrangement; and

• all of clause 45 should be read in conjunction with the very specific requirements of the definition of "surrogacy agreement" in clause 4. I am advised that merely expressing an opinion In relation to surrogacy agreements or a desire to be a party to a hypothetical surrogacy agreement in hypothetical circumstances would not satisfy this definition or clause 45.

I also note that the offence in clause 45{1) is substantially a re-enactment of the offence in s. 60 Infertility Treatment Act 1995. The conduct you have outlined as potentially Infringing clause 45 has taken place while section 60 has been in operation, and I am informed that there have been no prosecutions for such conduct to date.

I trust that this satisfies your concerns,

HON. DANIEL ANDREWS MP MINISTER FOR HEALTH

8 December 2008

The Committee thanks the Minister for this response.

Relationships Amendment (Caring Relationships) Bill 2008

The Bill was introduced into the Legislative Assembly on 7 October 2008 by the Hon. Tony Robinson MLA. The Committee considered the Bill on 27 October 2008 and made the following comments in Alert Digest No. 13 of 2008 tabled in the Parliament on 28 October 2008.

38

Committee's Comment

Charter report

Marital status discrimination - Married or partnered people caring for a third party cannot register that caring relationship - Whether less favourable treatment- Whether reasonable

Summary: Under clause 9(2), only single people may register a caring relationship. The clause may treat married and partnered people less favourably than single people. This possible limitation of the Charter's equality rights does not appear to have been demonstrably justified. The Committee will write to the Attorney-General about the statement of compatibility. The question of possible Charter incompatibility is referred to Parliament.

The Committee notes that clause 9(2), amending s. 6, provides that caring relationships can only be registered if they satisfy the existing registration requirements, including that each person is:

o 'not married or in a registered relationship'; and

o 'not in another relationship that could be registered', e.g. in a domestic relationship with someone else (other than someone who is married, in a registered relationship or domiciled outside of Victoria)

In short, only single people can register a caring relationship. The Committee therefore considers that clause 9(2) engages the Charter's equality rights, by denying legal benefits on the basis of 'marital status'.


Preventing married people and people in domestic relationships from registering a caring relationship ... does not amount to less favourable treatment when compared to a person who is not married or in a domestic relationship being able to register a caring relationship. Marriage itself confers benefits, as does recognition as a domestic partner and, in most cases, spouses and domestic partners are treated equally across the statute book. The bill otherwise allows for the recognition of registered caring relationships in Victorian legislation where there has previously been on recognition.

Whilst the Committee recognises that the bill is beneficial, it is nevertheless concerned that clause 9(2} may treat married or partnered people less favourably than single people. For example, a middle-aged person may provide significant care for a disabled friend. If both are single, they will be able to register that relationship, allowing easy proof of that relationship and access to the property adjustment regime in Part 3 of the Relationships Act 2008. However, if the one happens to be married (e.g. to a long-term spouse with dementia who is living in a nursing home) or has an intimate relationship with a neighbour, then they will both be denied these legal benefits in respect of their caring relationship.

The Committee therefore considers that clause 9(2) may limit the Charter's right to 'equal enjoyment of human rights' and to 'equal protection of the law without discrimination' on the basis of marital status.

The Statement of Compatibility also remarks:

The requirements are reasonable given the purpose of the registration scheme is to allow people to register their primary relationship, which will be recognised as such for the purposes of Victorian laws. The registration scheme provides certainty about who the law applies to and it would become unworkable if someone could register numerous relationships.

The Committee observes that the purpose of allowing only allowing the registration of a 'primary' relationship appears merely to re-state the scheme's exclusion of married and partnered people. The statement that a broader scheme would be unworkable in not explained. The Committee therefore considers that the statement of compatibility does not appear to provide a

39

of Acts and Committee

demonstrable justification for any limitation on the Charters equality rights, according to the test in Charters. 7(2).

In its Practice Note No. 2, the Committee wrote that it 'will write to Ministers where, in the Committee's opinion, a Statement of Compatibility is inadequate or unhelpful in describing the purpose or effect of provisions in a Bill that may engage or infringe a Charter right.' The Committee will write to the Attorney-General expressing its concern about the Statement of Compatibility.

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

1. Whether or not clause 9{2)1 by preventing the registration of caring relationships when either caring partner is married or in a domestic relationship1 limits the right of both partners to equal protection of the law without discrimination on the basis of marital status.

2. If so~ whether or not clause 9{2) is a demonstrably justified limit on the Charters equality rights according to the test set out in Charters. 7{2}.

Minister's Response

40

Thank you for your letter of 2 December 2008 enclosing a copy of the report of the Scrutiny of Acts and Regulations Committee (the Committee) in Alert Digest No. 15 of 2008 regarding the Relationships Amendment (Caring Relationships) Bil/2008 (the Bill).

The Bill amends the Relationships Act 2008 to allow for the registration of caring relationships on the Relationships Register. The Bill also provides for the recognition, where appropriate, of registered caring relationships across the Statute Book.

The Committee's report considers whether clause 9{2} of the Bill is incompatible with the Charter of Human Rights and Responsibilities (the Charter). Clause 9 amends the Relationships Act to allow people in a registrable caring relationship to apply for registration of their relationship. As is the case for applications to register a registrable domestic relationship, the applicants to register a registrable caring relationship cannot be married or be in a relationship already registered in Victoria, or be in another relationship that could be registered in Victoria.

As a result, the Committee states that only single people can register a caring relationship, denying married or partnered people legal benefits on the basis of their "marital status". The Committee is concerned that the clause may therefore limit the Charter right to equal enjoyment of human rights and equal protection of the law without discrimination on the basis of marital status.

The Committee has referred the question of possible Charter incompatibility to Parliament and written to request further advice about whether the Statement of Compatibility for the Bill (the Statement) provides a demonstrable justification for any Charter limitation. I am happy to provide the Committee with this further advice.

The Statement notes that clause 9 raises the Charter right to equality but concludes that the clause does not amount to a limitation on this right. I consider that the Statement adequately describes the purpose and effect of the clause in relation to the Charter right.

Under the Charter, every person is entitled to the equal protection of the law without discrimination. Discrimination means discrimination within the meaning of the Equal Opportunity Act 1995 on the basis of an attribute set out in section 6 of that Act. The attributes include a person's marital status, which includes being single, married or being a domestic partner. Direct discrimination occurs if a person treats someone with an attribute less favourably than the person treats someone without that attribute, or with a different attribute, in the same or similar circumstances.

While preventing married people and people in domestic relationships from registering a caring relationship raises an argument of differential treatment on the basis of a person's marital status, it does not amount to less favourable treatment in the same or similar circumstances. Marriage confers benefits on the partners in that marriage, as does recognition of a domestic relationship on


the partners to that relationship, and in most cases, spouses and domestic partners are treated equally across the Statute Book. No detriment would therefore be suffered by one of those partners not being able to register a different, non-couple relationship.

The Statement also provides further context for clause 9 by explaining that the purpose of the registration scheme is to allow people to register their primary relationship, which will be recognised as such for the purposes of Victorian laws. The registration scheme therefore provides certainty about who Victorian laws apply to and demonstrates proof of the relationship where these laws apply. Registration allows recognition in an immediate way across a number of laws rather than leaving this up to a consideration of the nature of the relationship in each case.

This purpose would be undermined if a person could be married and also register a relationship, or if a person could register more than one relationship, as each Act would need to specify which relationship takes precedence in the particular circumstances. For example, the Guardianship and Administration Act 1986 sets out a hierarchy of people who may be the "person responsible" for a patient in relation to a proposed medical research procedure or proposed medical or dental treatment. The patient's spouse or domestic partner currently forms part of this list. lt is intended that a registered caring partner be in the same position as a spouse or domestic partner in relation to this issue. If a patient has both a spouse and a registered caring partner, there would be uncertainty about whether the spouse or the registered caring partner is the person responsible for the patient and would require consideration of the numerous and complex factors that surround each of those relationships to determine this question.

' The Statement also makes the important point that the registration scheme is voluntary and a person may choose not to register a caring relationship, instead making arrangements to benefit others in particular circumstances, such as by making a will or appointing a power of attorney.

Lastly, as set out in the Statement, I restate the beneficial nature of the Bill, which acknowledges that people form a diverse range of relationships and allows them to define which of their personal relationships is most important. The Bill recognises registered caring relationships in Victorian legislation where there has previously been no such recognition and by according them with a range of legal rights and obligations.

Given this, it is my opinion that the Statement adequately demonstrates that clause 9 does not amount to a limitation on the Charter right to equality.

Thank you for the opportunity to respond to the issues raised by the Committee in relation to this Bill. If you would be assisted by a further briefing from officers from my Department, please contact Dallas Henderson, Departmental Liaison Officer in my office (96511131) to arrange a suitable time.

ROB HULLS MP Attorney-General

19 December 2008

The Committee thanks the Attorney-General for this response.

Committee Room 2 !February 2009

41


42


Tuesday, 24 February 2009

Gambling Regulation Amendment (Licensing) Bill 2009 Serious Sex Offenders Monitoring Amendment Act 2009

43


Gambling Regulation Amendment (Licensing) Bill 2009

Introduced 3 February 2009 Second Reading Speech House

5 February 2009 legislative Assembly Hon. Tony Robinson MLA Minister for Gaming


Purpose

The Bill amends the Gambling Regulation Act 2003 (the 'Act') to -

• substantially restructure the gaming industry by-

o providing for a new licence for the monitoring of the conduct of gaming;

o providing for the creation and allocation of gaming machine entitlements under which gaming by means of gaming machines will be authorised; and

o imposing certain ownership and related person restrictions in relation to licensees and persons on the Roll;

• authorise the conduct of a betting exchange;

• make further provision in relation to simulated games and simulated racing events; and

Background

Extracts from the Second Reading Speech (relevant [clause] references added)-

44

1. The Commission will continue to approve and regulate venue operator licensing. This approval process will also continue to require a planning permit and involve a social and economic impact assessment.

2. Following the expiry of the existing gaming operators' licences in 2012, the State will not issue any further gaming operator licences. Rather, approved hotels and clubs will be able to bid directly for 10-year gaming machine entitlements, which will authorise venues to possess and operate gaming machines. [18], [25], [27]

3. The State will allocate gaming machine entitlements to approved venue operators through a competitive bidding process, which is expected to be completed in 2010. Only persons holding a venue operator's licence will be permitted to bid for gaming machine entitlements. [25]

4. The Bill provides for the term of all venue operator licences to be extended from o current term of 5 years to 10 years to bring them into line with the term of gaming machine entitlements. [18]

5. The amendments also provide that venue operators' licences will only be granted to applicants who are not natural persons. [15 and 17]

6. The Bill includes prohibitions on profit-sharing arrangements between a venue operator and certain participants in the gaming machine industry .... In addition to these restrictions, the Melbourne casino licensee wi/1 not be allowed to operate gaming machines outside the casino. Nor will the casino licensee be permitted to apply for the monitoring licence . ... the Bill places a restriction on the ownership of hotel gaming machine entitlements so that no one will be able to own more than 35 per cent of hotel gaming machine entitlements. [10]

7. The Bill provides that venue operators will be able to transfer their gaming machine entitlements to other licensed venue operators . ... To deter speculative bidding in gaming


machine entitlements, the Bill provides that, from the period following the initial allocation of entitlements in 2010 until six months after the commencement of the new industry structure, a venue operator who transfers their gaming machine entitlements for a profit will be required to pay a tax of 50 per cent of the profit made. [25]

8. . .. the taxation revenue collected from gaming machines will go into the Hospitals and Charities Fund to support Victoria's public health system. [25], [32-33]

9. An independent monitoring function will also be established by this legislation to monitor gaming machine transactions in venues and ensure the integrity and transparency of gaming venues. The Bill provides for a new monitoring licence, which ensures that gaming machine monitoring services are provided independently of venues ..... the monitor cannot hold a venue operator's licence or be a manufacturer of gaming machines at the same time. ... Similar restrictions will apply to venue operators and persons listed on the roll of manufacturers, suppliers and testers. [10], [13], [23], [28], [41.]

10. The Bill includes amendments that will tighten up the laws against advertising that, either directly or indirectly, promotes the playing of gaming machines. The prohibition in the Bill will provide for a complete ban on gaming machine advertising by the current gaming operators. [63 and 64], [76]

11. The Bill includes a prohibition on gaming operators from conducting trade promotion lotteries. [65 to 68], [77]

12 .... the government has provided for the successful post-2012 wagering and betting licensee to establish and operate a betting exchange in Victoria, and also provided the right to offer approved simulated racing games . ... Simulated racing products will be able to be provided by the successful licensees under both the wagering and betting licence and the keno licence. The wagering and betting licensee will only be able to conduct simulated horse, harness and greyhound racing games. Oversight of these products is ensured by requiring both licensees to apply to the Commission for approval of these games before they can be offered to the public under the relevant licence. [44 to 62]

13. The Bill also implements the government's announcement of a 60 per cent drop in wagering taxes post-2012, when the gaming and wagering licences will be separated. [60 to 62]


Serious Sex Offenders Monitoring Amendment Act 2009


3 February 2009 3 February 2009 10 February 2009* Legislative Assembly Hon. Bob Cameron MLA Minister for Corrections

*Note: The Act received Royal Assent on 10 February 2009 and the Committee provides this report pursuant to section 17(c) of the Parliamentary Committees Act 2003.

45


Purpose and background

[Sections of the ~mending Act]

Test to be applied for making or reviewing an extended supervision order

Following the Court of Appeals decision in RJE v. Secretary to the Department of Justice this amending Act clarifies the legal test as to when a court may make or review an extended supervision order under the Serious Sex Offenders Monitorim;; Act 2005 (the 'Act').

The amending Act inserted new subsections in sections 11 and 23 (making and reviewing extended supervision orders) of the Act to provide that for the purposes of subsection (1) in each of those sections, an offender is likely to commit a relevant offence if there is a risk of the offender committing a relevant offence and that risk is both real and ongoing and cannot sensibly be ignored having regard to the nature and gravity of the possible offending.

Further new subsections to each of those sections provide that for the avoidance of doubt those sections permit a determination that an offender is likely to commit a relevant offence on the basis of a lower threshold than a threshold of more likely than not. [4 & 5]

Declaratory savings provisions catching previous orders but preserving existing rights

The Act provided a saving provision that to avoid any doubt sections 11 and 23 as in force before the commencement day of the amending Act are taken always to have permitted a determination that an offender is likely to commit a relevant offence on the basis of a lower threshold than a threshold of more likely than not. [6(1}]

Additionally the amending Act provides that the declaratory savings provision in [6(1)] does not affect the rights of the parties in the proceeding known as RJE v Secretary to the Department of Justice (No. 131 of 2008) in the Court of Appeal. [6(2)]

Charter Report

Limiting rights - Procedure for deprivation of liberty - Extended supervision orders - Risk that 'cannot sensibly be ignored' - Whether demonstrably justified in a free society - Whether limitation 'under law'- Adequacy of statement of compatibility

Summary: The Act allows a court to make an extended supervision order if there is a risk of reoffending that 'cannot sensibly be ignored having regard to the nature and gravity of the possible offending'. The Committee is concerned that this test maybe too low for a significant rights limitation and may be overly susceptible to varying application amongst individual judges. The Committee is also concerned that the statement of compatibility does not address the factors set out in the Charter's test for reasonable limits on rights.

The Committee notes that s. 4 defined the term 'likely to commit a relevant offence' in s. 11 of the principal Act, with the result that a court can now impose an extended supervision order if it is satisfied that there is a risk that an offender will commit a relevant offence that:

• 'is both real and ongoing'; and

• 'cannot sensibly be ignored having regard to the nature and gravity of the possible offending'

As the Committee observed in its Alert Digest No. 5 of 2008, extended supervision orders involve a number of significant limits on Charter rights.

46


The Statement of Compatibility observes:

Section 7(2} of the charter requires a balance between the rights of offenders as well as the rights of the community, particularly potentially vulnerable victims including children. Whether it is reasonable and justifiable to impose restrictions upon rights of offenders depends not only on the likelihood of reo/fending but also on the nature and gravity of the potential reo/fending. In my view the test should reflect this, and enable ESOs to be made even where it cannot be proved that an individual is more likely than not to re-offend.

While agreeing that protecting others' rights is a legitimate reason to limit an offender's rights, the Committee feels that s. 4 raised separate Charter concerns:

First, under the Charter all measures that limit rights, including those that promote others' rights, must be ones that 'can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom'.1 The Committee observes that extended supervision orders, which impose significant rights limitations beyond those provided for by the criminal justice system, raise the question of the minimum threshold of risk that can ever justify such measures. One judge of the Court of Appeal recently held that there can be no justification for imposing significant limits on people who probably won't re-offend.2 While the Committee agrees with the statement of compatibility that extended supervision orders may be justifiable in such circumstances for very serious offences such as the rape of a child, the Committee is concerned that a threshold requirement that a risk 'cannot sensibly be ignored' may be too low for such significant rights limitations in a 'society based on human dignity, equality and freedom'.

Second, even for reasonable limits, the Charter requires that all rights restrictions be made 'under law' and specifically that 'a person must not be deprived of his or her liberty except on grounds, and in accordance with procedures, established by law'.3 The Committee is concerned that the test of whether or not a risk 'cannot sensibly be ignored' may be overly susceptible to varying application amongst indiYidual judges, based on their own views of what is and isn't 'sensible' in this unusual context. While all extended supervision orders are reviewed at least every three years and all decisions may be appealed, the Committee feels such processes may be too slow and onerous to prevent the development of significant discrepancies in the imposition of orders. The Committee is also concerned that the Victorian Court of Appeal, in ruling that the unamended legislation imposes a higher threshold, also held:

If the undisputed opinion of the expert assessor was that the offender was likely to commit a relevant sex offence if released unsupervised, it is difficult to imagine on what other grounds a judge might fail to be satisfied that the likelihood existed.4

Such deference to expert assessments of likelihood appears to be inappropriate in light of the new definition inserted by s. 4, which is much lower and contains a significant qualitative component. While the Court of Appeal will doubtless eventually review this remark, lower courts may, in the meantime, feel obliged to follow it in applying the new test.

Finally, the Committee is concerned that the statement of compatibility does not address the factors set out in Charter s. 7(2).5 In particular, there is no assessment of 'reasonably available' alternatives, such as

4

Charters. 7(2).

R 1 E v Secretary to the Department of Justice [2008] VSCA 265, [107]

Charter ss. 7(2) & 21(3}.

R J E v Secretary to the Department of Justice [2008] VSCA 265, [19]

These factors are '(a) the nature of the right; and (b) the importance of the purpose of the limitation; and (c) the nature and extent of the limitation; and (d) the relationship between the limitation and the purpose'; and (e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve'.

47


the 'unacceptable risk' test recommended by the Victorian Sentencing Advisory Council.6 The Committee is also concerned that the statement of compatibility described the bill's provisions defining 'likely' as 'clarifying' that definition. The Committee observes that new test differs significantly from both previous interpretations by the Victorian Court of Appeal, by replacing a wholly quantitative assessment of probability with a partially qualitative risk assessment.

The Committee will write to the Minister seeking further information as to whether or not the Court of Appeal's remarks on the 'undisputed opinion of the expert assessor' continue to bind judges applying the new test introduced in sections 4 and 5. lt will also write expressing its concern about the statement of compatibility. Pending the Minister's response, the Committee draws attention to ss. 4 and 5 and the requirements of Charter ss. 7(2) and 21{3}.

Retrospective penalties - Procedures for deprivation of liberty - Amendments apply to offences committed and orders made before commencement

Summary: The Committee reiterates its view that an extended supervision order may amount to a 'penalty' for the purposes of the Charter's right against retrospective increases in penalties. The Committee is also concerned that the changed rules for existing orders may be contrary to the procedural rights of persons subject to those orders.

The Committee notes that s. 4 amended rules that regulate whether or not 'eligible offenders' can be subject to an extended supervision orders. The change may result in some existing offenders being subject to orders that wouldn't have been made under the previous rules. The Committee is concerned that such changes in the law may cause significant unfairness, for example because some people may have decided to plead guilty on the basis of the legal advice about the state of the previous law.

The Statement of Compatibility remarks that:

... an ESO ... does not impose a retrospective punishment on the offender contrary to section 27 of the Charter, because the making of an ESO is protective rather than punitive in nature (see especially Fardon v. Attorney-General (Qid) {2004} 223 CLR 575.)

The Committee reiterates its observation, stated in Alert Digest No. 5 of 2008, that an extended supervision order may amount to a 'penalty' for the purposes of the Charter's right against retrospective increases in penalties.7 Indeed, such a ruling was made in the very New Zealand case that developed the definition of 'likely' inserted by ss. 4 and 5.8

The Committee also notes that s. 5 amended rules for when an extended supervision order can be renewed or revoked. If this change applies to people who are currently the subject of extended supervision orders, then orders made for a duration determined by the previous definition of 'likely' will now be subject to review under a different definition. The Committee is concerned that changing the rules for· review or revocation of existing orders may be contrary to the Charter right of people presently subject to such orders not to 'be deprived of his or her liberty except on grounds, and in accordance with procedures, established by law'.9

9

48

Sentencing Advisory Council, High-Risk Offenders: Post-Sentence Supervision and Detention: Final Report, May 2007, Recommendation 17-A (1).

Charters. 27(2).

Be/cher v Department of Corrections [2006] NZCA 262, [11], [49]

Charters. 21(3).

The Committee will write to the Minister seeking further information as to whether or not the amendments made by s. 5 apply to extended supervision orders in place prior to the Act's commencement date. Pending the Minister's response, the Committee draws attention to the retrospective operation of the Act.

Dialogue about human rights- Whether Charter operating as intended

Summary: The Committee will write to the Attorney-General expressing its concern about the operation of the Charter's human rights dialogue in relation to this Act.

The Committee notes that the Act is the first occasion where Parliament has responded to a major court judgment where the Charter was raised and extensively debated at the hearing. The Charter's intended operation in this circumstance was described at its enactment as follows: 10

/t is a model which encourages and promotes dialogue about human rights between all the institutions of government -- the Parliament, the courts and the executive. /t ensures that human rights are taken into account when developing new laws and policies. lt ensures that the courts consider human rights when interpreting laws. And above all else, it promotes the need to respect and promote human rights across government and in the community.

The Committee is concerned that the Charter may not have operated as intended in relation to this Act in three respects:

First, the majority of the Court of Appeal did not consider the Charter when interpreting the previous versions of ss., 11 and 23 of the principal Act. Rather, the majority held that its 'interpretative task does not attract the operation of s. 32(1) of the Charter'. The Committee observes that, as a result, the Parliament did not have the benefit of an authoritative judicial ruling on the compatibility of the existing ss. 11 and 23 with human rights when considering the enactment of amendments to those sections that lower the· threshold for making extended supervision orders.

Second, the Bill's statement of compatibility did not follow the format used in other statements. In particular, as already outlined, the statement, despite concluding that the Bill limited some rights, referred only to the concept of balancing competing rights and did not address the factors set out in Charters. 7(2)'s test for limiting rights. The Committee is concerned that the bill many not have complied with the requirement in Charter s. 28 that every bill be accompanied by a statement explaining 'how' it is compatible with human rights. The Committee considers that a fully compliant statement of compatibility is especially important when legislation that engages many human rights is developed and enacted speedily.

Third, the Bill was enacted without a report by this Committee. The Committee reiterates its concern stated in Alert Digest No. 1 of 2009 about non-compliance with Charters. 30.

The Committee will write to the Attorney-General expressing its concern about the operation of the • Charter's human rights dialogue in relation to this Act. Pending the Attorney-General's response, the

! Committee draws attention to Charter ss. 28, 30 and 32.


Committee Room 23 February 2009

10 Second Reading Speech for the Charter of Human Rights and Responsibilities Bill2006, 41

h May 2006.

49


50


Tuesday, 10 March 2009

Major Sporting Events Bill 2009 Melbourne University Amendment Bill 2009


Criminal Procedure Bill 2008 Major Crime legislation Amendment Bill 2008

51


Major Sporting Events Bill 2009

Introduced 26 February 2009 Second Reading Speech House

26 February 2009 Legislative Assembly


Hon. James Merlino MLA Minister for Sport and Recreation

Purpose

The purpose of the Bill is to support the acquisition, retention, staging and management of major sporting events in Victoria by including all provisions that may be required to control and protect an event within a single Act.

The Bill consolidates the existing general legislation relating to major sporting events - the Major Events (Aerial Advertising) Act 2007, the Major Events {Crpwd Management) Act 2003 and the Sports Event Ticketing (Fair Access) Act 2002 into one Act. In addition, the Bill includes provisions relating to the operational requirements of major sporting events, the protection of commercial interests of those events, including control of advertising other than aerial advertising, protections from claims for economic loss and regulation of the application of other laws to major sporting events.

Background

Extracts from the Second Reading Speech-

52

1. The Sports Event Ticketing (Fair Access) Act 2002, the Major Events (Crowd Management) Act 2003 and the Major Events (Aerial Advertising) Act 2007 will be repealed and their provisions incorporated into one Act.

2. . . .it adds the AFL finals series to the list of events that are routinely protected by the aerial advertising provisions of the Bill in recognition of the importance of those events and the potential for ambush aerial advertising.

3. The Bill also improves the crowd management provision in the Bill that allows an authorised officer to direct a person to leave a sporting venue because the person has engaged in disruptive behaviour to make it more compatible with the Charter of Human Rights and Responsibilities. A key part of the clause now requires that a person cause 'unreasonable disruption or unreasonable interference' to spectators or event organisers rather than 'annoyance to spectators' as in section 15 of the Major Events {Crowd Management) Act 2003.

4. Broadly, the Bill will provide protection for various commercial arrangements relating to major sporting events, facilitate the operational arrangements required for events, provide limited protection for events against claims for economic compensation, regulate how other acts apply to the staging and conduct of major sporting events and protect against types of ambush advertising. For example, the Bill includes prohibitions against unauthorised broadcasting of an event.

5. Similarly, the Bill sets out other protections and requirements that can be activated when appropriate. These include: prohibition of unauthorised use of event logos, images and references and related enforcement provisions; suspension of the application of other acts to event venues or event areas for limited periods to facilitate the delivery of a major sporting event.

6. The Bill provides for the Governor in Council to make orders, on the recommendation of the Minister, indicating which parts and provisions of the Bill are to apply to a particular event, depending on the requirements for each event. This reflects the Governor in Council's existing


powers under the crowd management and aerial advertising legislation and applies those arrangements to the range of additional provisions described earlier.

7. All major sporting event orders must be published in the Government Gazette. Major sporting event orders that apply provisions relating to commercial arrangements, advertising other than aerial advertising and aerial advertising to an event, orders that prescribe the non-application of other laws ('acts non-application orders') and no compensation orders must be laid before each house of Parliament. Acts non-application orders and no compensation orders may be disallowed in whole or in part by either house of Parliament.

8. Not all protections will be required or applied to every event. lt is anticipated that only the most significant of major sporting events would require the full range of protections provided by the Bill to be activated.


Part 1 (clauses 1 to 6) deal with preliminary matters such as the purpose and commencement of the Act and provide for major definitions used throughout the Act.

Part 2 (clauses 7 to 26) provides that the Governor in Council may make a major sporting event order, on the recommendation of the Minister. The order must be published in the Government Gazette (gazetted) and may make provision for the event area, aerial advertising, commercial arrangements, the nonapplication of other Acts (a non-application order) which must be gazetted and no compensation orders (a no compensation order) for loss or damage as a consequence of a major sporting event, other than for death or personal injury which must also be gazetted.

A non-application or no compensation order may be disallowed by the Parliament and the relevant provisions of the Subordinate Legislation Act 1994 apply accordingly.

The Minister may also provide for event guidelines which are to be gazetted and tabled in the Parliament.

Part 3 - Commercial Arrangements (clauses 27 to 60) deal with commercial arrangements and related offences and enforcement provisions relevant to major events, including provisions concerning the protection of logos, images and references and the authorisation of broadcasting. Enforcement powers include provisions concerning seizure of goods and equipment, the retention of recordings and films, injunctive powers and forfeiture orders.

The Part provides that without the proper authorisation it is an offence to engage in conduct that suggests sponsorship, approval or affiliation; use a protected logo, image or event or to broadcast or record an event.

Part 4 - Crowd Management {clauses 61 to 91) of the Bill deal with crowd management and largely reproduces the provisions of the Major Events (Crowd Management) Act 2003, with some modifications. The Part will apply to certain specified events and in certain specified circumstances.

Clause 62 provides an offence for the unauthorised possession of a prohibited item {excluding distress signals and fireworks) as defined in clause 3. Prohibited items include certain animals {excluding guide or police dogs or animals competing in the event), laser pointers, dangerous goods, whistles or loud hailers, bicycles {except a police or competition bicycle), scooters, skateboards, roller skates or roller blades, horns or bugles, flags or banners larger than 1 metre by 1 metre or possessing a handle longer than 1 metre, any items which are in such a quantity that a reasonable person could infer that those items are to be used for commercial purposes and a public address system, electronic equipment, broadcast equipment or similar devices which may interfere with equipment being used to run an event.

53


Prohibited weapons within the meaning of the Control of Weapons Act 1990 and firearms within the meaning of the Firearms Act 1996 are also prohibited items, regardless of whether a person is licensed or otherwise permitted to carry them.

Clauses 63 to 74 make provision for specific offences such as possession of fireworks, alcohol, unauthorised entry onto the competition space, throwing projectiles, obstructing the view of a seated person and a number of other offences found in cur~ent legislation.

Clause 79 provides that venue managers may prohibit items, in addition to those items specified in the definition of prohibited item, from being brought into an event venue or area for which they are responsible. The venue manager must display signs setting out details of additional prohibited items and as far as practicable ensure that those signs are displayed in such a manner that the details are reasonably likely to be seen by people affected by them. lt is not an offence to possess an item prohibited by a venue manager in an event venue or area, but a person may be asked to surrender the item and if he or she does not, may be asked to leave or to have the item confiscated by a police officer.

Clauses 83 to 85 provides that an authorised officer may direct a person to leave and not re-enter or not to enter an event venue or area, if the authorised officer believes on reasonable grounds that the person has committed an offence against clause 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73 or 74 or if the person engages in disruptive behaviour. lt is an offence to fail to comply with a lawful direction.

Clauses 86 and 87 deal with repeat offenders who have already been convicted of certain offences and provides for a court to make a ban order in relation to persons convicted of certain offences.

Clauses 88 to 90 provides for powers to request name and address and for inspection.

Clause 91 provides that a member of the police force may serve an infringement notice on a person who the member of the police force has reason to believe has committed a relevant offence.

Part 5 (clauses 92 to 100) of the Bill provides for the suspension of the application of certain other Acts to event venues or event areas for limited periods to facilitate the delivery of a major sporting event. Similar provisions were included in the World Swimming Championships Act 2004 and in the Commonwealth Games Arrangements Act 2001.

Part 6 (clauses 101 to 114) make provisions relating to general operational arrangements such as a power to remove offenders, vehicles and vessels at an event venue or event area. The Part also makes provision for temporary road closures, temporary road modifications and the restoration of event venues and event areas at the conclusion of an event.

Part 7 (clauses 115 to 123) seeks to protect event organisers from ambush (unauthorised) advertising on buildings, structures and vessels other than aerial advertising. The Part includes injunctive powers to restrain or prevent unauthorised conduct and makes provision for an action for damages.

Part 8 (clauses 124 to 150) incorporates the provisions of the Major Events (Aerial Advertising) Act 2007 to provide for the regulation, management and control of aerial advertising at major sporting events in Victoria. The provisions include injunctive powers, powers of search and seizure.

Part 9 (clauses 151 to 182) incorporates the provisions of the Sports Event Ticketing {Fair Access) Act 2002 and allows the Minister to make sports ticketing declarations which regulate the sale of tickets in respect to a declared sports event by means of approved ticketing schemes. lt is an offence to sell tickets contrary to the approved scheme. VCAT has a supervisory appellate function under the Part. The Part also provides for enforcement powers including search and seizure powers.

Part 10 {clauses 183 to 187) establishes a regime for the appointment and identification of authorised officers and related offences for obstructing and impersonating authorised officers.

54

Part 11 (clauses 188 to 192) establishes a regime for enforcement in relation to offences under the Act. The provisions are largely a combination of provisions from the Major Events (Aerial Advertising) Act 2007

and the Sports Event Ticketing (Fair Access) Act 2002.

Part i2 (clauses 192 to 194) provides for matters including interaction of the Bill with the Australian Grands

Prix Act 1994, service of documents and regulations.

Part 13 (clauses 195 to 206) provides for consequential and other amendments, transitional provisions and repeals the following Acts, the-

o Major Events (Crowd Management) Act 2003;

o Major Events (Aerial Advertising) Act 2007;

o Sports Event Ticketing (Fair Access) Act 2002.

Privilege against self incrimination

Clauses 146 and 176 are provisions relevant to the privilege against self-incrimination for a natural person. The provisions are respectively in relation to aerial advertising (Part 8) and sports event ticketing (Part 9).

Clause 146 provides for the privilege in all cases except in respect to documents required to be produced under the Part and clause 176 allows the privilege without any qualification.

Charter Report

Freedom of expression - Public life - Public speech at sporting events - Offence to possess large banners - Power to immediately exclude people who engage in unsafe, disruptive or interfering behaviour

Summary: A number of the bill's provisions may limit the ability of Victorians to engage in public speech (including political protests and other participation in public debate) at some sporting venues during major sporting events. The Committee is concerned that provisions criminalising the possession of all large banners in all sporting areas and venue and authorising officials to immediately expel people who engage in unsafe, disruptive or interfering behaviour may be unreasonable limits on Victorians' Charter rights to freedom of expression and to public life.

The Committee notes that a number of the bill's provisions may limit the ability of Victorians to engage in public speech (including political protests and other participation in public debate) at some sporting venues during major sporting events. These provisions engage the Charter rights of Victorians to freedom of expression and to public life.1


1

In relation to crowd management provisions, there are no less restrictive means available to achieve a safe and orderly environment at major sporting events. The behaviours that are proscribed are all unacceptable to event organisers, venue managers and the community for various reasons including the need for public order and safety. The minimum consequences of these behaviours - a direction to leave for 24 hours- is the least restrictive response that would achieve the purpose.

Charter s. 15(2) provides that 'Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Victoria and whether - ... (e) in another medium chosen by him or her.' Charter s. 18(1) provides that 'Every person in Victoria has the right, and is to have the opportunity, without discrimination, to participate in the conduct of public affairs, directly .. .'

55


While the Committee considers that the majority of the bill's limitations on public speech are proportionate ways of protecting compelling government interests, in particular the public enjoyment of sporting events, it is concerned about two provisions:

First, clause 62 makes it a criminal offence to possess 'prohibited items' at an event area or venue without authorisation. Item (I) of the definition of 'prohibited item' in clause 3 is:

a flag or banner which (i) is larger than 1 metre by 1 metre; or (ii) has a handle longer than 1 metre.

This item does not appear in the equivalent provision of the Major Events {Crowd Management) Act 20032

Large banners are a potentially important form of public expression and can be used without significant disruption in some parts of sporting venues (e.g. in open areas or plazas surrounding stadiums.) Given that other clauses of the bill already prohibit behaviour that blocks views or disturbs or interferes with spectators or workers (e.g. by inappropriately placed banners), the Committee is concerned that additionally criminalising the possession of all large banners in all parts of sporting areas or venues may be an unreasonable limit on the rights to freedom of expression and public life. The Committee is also concerned that spectators (including overseas spectators) may be unaware that the possession of large banners and flags at sporting venues and areas is a criminal offence.

Second, clause 84 provides that an authorised officer may exclude a person from an event venue or area for 24 hours if the officer reasonably believes that the person is:

• disrupting or interrupting a sporting event

• risking the safety of that person or other spectators

• causing unreasonable disruption or interference to spectators or workers

While the Committee accepts that these are appropriate grounds for limiting expression (and welcomes the refinement of the current provision of the Major Events (Crowd Management) Act 2003), it is concerned that potential protesters will be unable to predict in advance what behaviours will lead to exclusion. The result may be that people are expelled for behaviour without realising that it was unsafe, disturbing or interfering, or may avoid acceptable expression to remove the risk of summary exclusion. The Committee therefore considers that clause 84 may result in unreasonable limits on the rights to freedom of expression and public life. In particular, the purpose of s. 84 might be reasonably achieved by a less restrictive means: if the power to expel only became available once the person had been warned that his or her behaviour was unacceptable and nevertheless persisted in it.3


lt should be noted that these restrictions are not as great as the restrictions that may be imposed by land or venue managers, without the bill. Under clause 75 of the bill an individual may seek authorisation forsome of these behaviours ...

The Committee observes that overseas courts have held that events or venues attended by large numbers of people are very significant to political speech, especially for people and causes without media access, so that even the exercise of property rights may infringe the right to freedom of expression.4 Given that the speech may be a protest against the event organisers or the government, authorisation and official

4

56

s. 3 (definition of 'prohibited item'.) Large banners and flags are prohibited items under the World Swimming Championships

Act2004.

Charter s. 7(2) states: 'A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including ... {e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to

achieve.'

E.g. Committee for the Commonwealth of Canada v Canada [1991] 1 SCR 139; Ramsden v Peterborough (City), [1993] 2 SCR 1084.


discretion may not be sufficient mechanisms to avoid concerns about the rights to expression and public life.

The Committee considers that item (I) of clause 3's definition of 'prohibited item' and clauses 62 and 84 may be incompatible with the Charter's rights to freedom of expression and to public life.

The Committee will write to the Minister seeking further information as follows:

1. In light of other provisions barring obstruction of views and other disruptive behaviour, why is it necessary to criminalise the possession of all large banners at all parts of sporting areas and venues?

2. What steps will be taken to make spectators (including overseas spectators) aware of the requirements of item(/) of clause 3's definition of 'prohibited item' combined with clause 62?

3. Would empowering an official to expel a person only if they persist in behaviour after being asked to stop be a reasonably available less restrictive alternative to the present clause 84?

Pending the Minister's response, the Committee refers to Parliament for its consideration the questions of:

1. Whether or not item (I) of clause 3's definition of 'prohibited item' and clause 62, by criminalising the possession of all large banners at all parts of sporting venues or areas, limits the Charter rights of Victorians to freedom of expression and participation in public life.

2. Whether or not clause 84, by authorising officials to immediately eJtpel people who engage in unsafe, disruptive or interfering behaviour, limits the Charter rights of Victorians to freedom of expression in public life.

3. If so, whether or not these clauses are reasonable limits on Victorians' Charter rights and, in particular, whether there are less restrictive alternatives reasonably available to achieve the purpose of facilitating the public enjoyment of sporting events.


Meibou11rne University Amendment Bm 2009


I?IUIII"IPOSe aundl Background

26 February 2009 · 26 February 2009 Legislative Assembly Hon. Jacinta Allan MLA Minister for Skills and Workforce Participation

The Bill amends the Melbourne University Act 1958 to facilitate the amalgamation between the Faculty of the Victorian College ofthe Arts and the Faculty of Music at The University of Melbourne.


57


Minis'lterial Correspondence


The Bill was introduced into the Legislative Assembly on 2 December 2008 by the Hon. Rob Hulls MLA. The Committee considered the Bill on 2 February 2009 and made the following comments in Alert Digest I'Jo. 1 of 2009 tabled in the Parliament on 3 February 2009.

Committee's Comments

58

[2] Delayed commencement- Inappropriate delegation of legislative power

The Committee notes that the explanatory memorandum draws attention to the possible delayed commencement of several clauses such as clauses 145 and 242.


The Committee will seek further information from the Attorney-General concerning clauses 145 and 242 and others that may have delayed commencement of greater than one year from introduction in the Parliament.

Charter report

Rights to an interpreter and to communication assistance - Provision barring un-interpreted hearings in circumstances that are narrower than the Charter's minimum guarantees - Whether restricted circumstances demonstrably justified

Summary: Clause 335 bars a court from hearing a criminal proceeding in the absence of a competent interpreter, but provides no protection for people who know but cannot speak English, or who can speak English but require assistance to communicate, or who are charged with offences that are not punishable by imprisonment. The Committee will write to the Minister seeking further information as to whether there is a demonstrable justification for the conditions in clause 335(a) & (b).

The Committee notes that clause 335 bars a court from hearing a criminal proceeding in the absence of a competent interpreter if two conditions are satisfied:

• s. 335{a): a person is charged with an offence punishable by imprisonment; and

• s. 335{b): that person does not have sufficient 'knowledge of the English language'

These conditions are more restrictive than the Charters. 25's''minimum guarantees' for all criminal defendants:

• Charters. 25{2}{i): 'to have the free assistance of an interpreter if he or she cannot understand or speak English'.


o Charter s. 25{2}(j): 'to have the free assistance of assistants and specialised communications tools and technology if he or she has communication or speech difficulties that require such

· assistance'.

The Committee is concerned that clause 335 provides no protection for people who know but cannot speak English, or who can speak English but require assistance to communicate. Also, it doesn't protect people charged with offences that are not punishable by imprisonment. The Canadian Supreme Court, interpreting a similar right, has noted that it applies to 'all accused, irrespective of the gravity of the offence charged and its classification'.

The Statement of Compatibility observes that the bill does not 'limit' the right to an interpreter and, more generally, that the bill operates in tandem with common law and other statutory rights, including the right to a fair hearing. However, the Committee is concerned that an express statutory protection protecting one of Charters. 25's 'minimum guarantees' only in some circumstances may be incompatible with the Charter unless that limited protection is demonstrably justified according to the test in Charter s. 7{2). Also, a ban on uninterpreted proceedings only when people lack 'knowledge' (as opposed to other communication difficulties) may limit the Charter's right to equal protection of the law without discrimination on the basis of impairment.

The Committee will write to the Minister seeking further information as to whether there is a demonstrable justification for the conditions in clause 335{a) & (b). Pending the Minister's response, the Committee draws attention to clause 335.

Ministe~r's Response

I refer to your letter dated 4 December 2007 regarding your Committee's consideration of the Criminal Procedure Bill2008 (the Bill).

The Committee has asked for my response to two issues, namely delayed commencement of the Bill and the consistency of clause 335 (Interpreters) with the Charter.

Delayed Commencement

The Bill has a forced commencement date of 1 January 2011. The Bill represents a comprehensive reform to criminal procedure in Victoria. As a result, a significant lead-in period to commencement is needed to ensure that key agencies are in a position to implement the reforms effectively. In particular, all of Victoria's criminal courts will need to develop new forms, court rules and practices to accommodate the changes.

Further, in order to simplify implementation and to help agencies and people with the change process, it is intended that the Bill will commence on the same date as the Evidence Act 2008. Based on extensive consultation by my Departmental officers with relevant agencies, it is intended that this joint commencement will occur in October 2009.

As the Committee notes, the forced commencement date for the Evidence Act 2008 is 1 January 2010. The reason for the different date in the Bill is to provide some flexibility to delay the commencement of a small number of provisions, most likely clauses 145 and 242 which relate to the transfer of related summary offences from the Magistrates' Court to the Supreme Court or the County Court. These new processes will require significant information technology changes. Significant efficiencies may be achieved by introducing these changes simultaneously with the introduction of the Integrated Court Management System· {ICMS}. The extended commencement date will provide the flexibility necessary for that to occur.

Clause 335 -Interpreters

Clause 335 applies to a~/ proceedings punishable by imprisonment and prohibits a court from hearing and determining the proceeding without an interpreter if the accused does not have a knowledge of English sufficient to allow them to understand or participate in the proceeding.

59


The Committee is concerned that clause 335 gives less protection to an accused with language difficulties than the Charter. This is for two primary reasons, which I will respond to in turn.

The first reason is that, because clause 335(b) only refers to a "knowledge" of the English language, it will not provide protection to an accused who knows but cannot speak English. This is said to stand in contrast with section 25(2}{i) of the Charter which applies to a person who "cannot understand or speak English".

I do not consider that clause 335{b) is limited in this way. When read in full, clause 335{b) refers to a knowledge of the English language sufficient to enable the person to "understand or participate in the proceeding". The accused's knowledge should not be considered in the abstract, but is directly linked to understanding and participation. When considering whether the accused can "participate" in the proceeding, the court would necessarily consider whether the accused can speak English. As a result, I consider that clause 335(b) reflects and complements section 25{2}{i), rather than limiting it.

The Committee's second concern is that, because clause 335 is limited to cases where an accused is at risk of imprisonment, it limits the Charter protections for those accused that are not at risk of imprisonment. I do not agree that douse 335 has that effect because I do not consider that Charter rights for some people are capable of being limited by implication in the way suggested.

Clause 335 gives additional protection to accused who at risk of imprisonment by expressly prohibiting the court from proceeding without on interpreter in those cases. However, in providing for this express additional protection, the clause could not reasonably be interpreted as limiting the rights of other accused. This reasoning applies equally to the Committee's concern about a possible implied limiting of section 25{2}{j) of the Charter.

Importantly, the right to a fair trial is a fundamental part of Victoria's criminal justice system. This concept of a fair trial has long included the idea that an accused should be able to participate in their trial and understand the criminal process. For this reason, interpreters have been regularly used in criminal cases for many decades.

The Court of Appeal recently affirmed this long-standing principle in R v Yasso [2007] VSCA 306 {14 December 2007} in the following way:

lt is, of course, an elementary requirement of natural justice that a defendant in criminal proceedings be able to participate fully, to present argument and answer questions, and to understand everything that is said by the bench and by opposing counsel. For a non-English speaking defendant, accurate interpreting is vitally important.

Clause 335 does not change these protections, nor does it weaken or limit Charter rights. lt simply declares that where someone is at risk of imprisonment the court cannot proceed without an interpreter.

Finally, I note that clause 335 is based on section 40 of the Magistrates' Court Act 1989. lt has worked effectively for a long time and it has not previously been suggested that its presence weakens the common law right of an accused to a fair trial. The only substantive change in the Bill is that the clause applies to all criminal courts, not just to the Magistrates' Court.

Given these factors, I consider that clause 335 enhances and promotes the rights in the Charter, rather than limiting them in the manner suggested. For that reason, I do not consider that clause 335 requires a justification under section 7 of the Charter as requested by SA RC.

If you would be assisted by a briefing from officers from my Department on the details of the issues you have raised, please contact Mr Stan Winford from my office {965 11146} to arrange a suitable time.


23 February 2009


60

Major Crime legislation Amendment Bill 2008

The Bill was introduced into the Legislative Assembly on 11 November 2008 by the Hon. Rob Hulls MLA. The Committee considered the Bill on 1 December 2008 and made the following comments in Alert Digest No. 15 of 2008 tabled in the Parliament on 2 December 2008.

Committee's comments

Charter report

Adequacy of statement of compatibility - Extension of scope of coercive powers scheme -Organised crime offence involving sexual gratification where the victim is a child

Summary: The Statement of Compatibility does not address clause 3(2), which extends an existing scheme that engages Charter rights. The Committee will write to the Minister about the statement of compatibility. lt draws attention to clause 3(2).

The Committee notes that clause 3(2), amending s. 3 of the Major Crime (Investigative Powers) Act 2004, extends the definition of 'organised crime offence' to include offences that have the purpose 'of sexual gratification where the victim is a child'. The Second Reading Speech remarks:

This bill inserts an additional element into the final limb of the definition to ensure that serious and organised crime involving the abuse of children and paedophilia networks is captured for the purpose of the coercive questioning powers. This will be achieved by expanding the purposes for the offending to include sexual gratification where the victim is a child. The amendment is necessary as organised crime groups involved in child abuse and pornography are not necessarily motivated by profit, gain, power or influence.

The Committee is concerned that the Statement of Compatibility does not address the compatibility or otherwise of clause 3(2)'s extension of the coercive powers scheme with human rights. In its Alert Digest No 9 of 2004, the Committee identified numerous concerns about the (then) Bill creating the scheme under its 'trespasses unduly on rights and freedoms' term of reference. Some of these concerns, notably those relating to privacy and self-incrimination, obviously also engage rights under the Charter, e.g. Charter ss. 13(a), 24 and 25(2)(k). Indeed, the compatibility of aspects of the existing scheme with the Charter is currently being litigated in the Supreme Court.

The Committee considers that when anything more than a technical extension is made to an existing scheme that engages human rights, Charter s. 28 requires that the Statement of Compatibility include an explanation of the compatibility or otherwise of the scheme (in its extended form) with human rights. The Committee feels that clause 3(2)'s extension of a significant, unusual and coercive scheme, enacted before the commencement of the Charter, to a new category of criminal offence is an especially important instance of this principle.

The Committee will therefore write to the Minister expressing its concern about the statement of compatibility. Pending the Minister's response, the Committee draws attention to clause 3(2).

Fair hearing - Proceedings for revoking or reviewing certain orders - Proceedings may be determined on the basis of information that is not revealed to the applicant - Whether reasonable limit

Summary: Clauses 4, 14 and 15 allow a court to determine some proceedings on the basis of evidence that is kept secret from one party and his or her lawyers. In some instances, this may result in the matter being determined without a fair hearing. The Statement of Compatibility does not address why less intrusive schemes aren't available. The Committee refers the question of possible Charter incompatibility to Parliament.

61


62

The Committee notes that clauses 4, 14 and 15, providing for the revocation or review of certain orders in the Supreme Court, contain procedures that apply when the Chief Commissioner 'objects to the disclosure or production of protected information at the hearing of the application'. Of the four options available to the Supreme Court in such a circumstance, three of them involve the Supreme Court potentially determining the proceedings on the basis of information that is not revealed to the applicant or his or her legal representative, either because 'a confidential affidavit... is not disclosed to one or more of the parties or any representative of those parties' or because the application is determined 'at a hearing held without notice to, and without the presence of, one or more of the parties, or any representative of those parties'.

Clauses 4, 14 and 15 go considerably further than the provisions of the Police Integrity Act 2008 on which they are based. Under the Police Integrity Act 2008, information that a court determines cannot be disclosed to a litigant is excluded from the proceedings altogether. By contrast, under clauses 4, 14 and 15, such evidence is considered by the court in the revocation or review proceedings, and may even be determinative of those proceedings, even though the applicant doesn't know what the evidence is and has had no opportunity to respond to it.

The Committee therefore considers that clauses 4, 14 and 15 may limit such applicants' Charter right to have civil proceedings determined after a fair hearing. To the extent that they hinder the effective review of orders made against applicants, they may also engage Charter rights affected by those orders, such as the many rights limited by coercive powers orders made under the Major Crimes (Investigative Powers) Act 2004. The Committee observes that clause 4 was not recommended by the Special Investigations Monitor in his report on the coercive powers regime.

The Committee considers that the compatibility of clauses 4, 14 and 15 with the Charter may depend on whether or not they satisfy the test for limiting rights set out in Charters. 7(2).


{T]he court would only determine the application without notice to and without the presence of certain parties if it was in the public interest to do so .... {T]he interests of parties seeking the revocation of orders will be protected by the appointment of a special counsel to represent the interests of a party to the proceeding at the hearing, where the court decides to proceed by way of a hearing held without notice to and without the present of a party, which provides an additional safeguard.

The Committee is concerned that, in some cases, the information at issue may be both too sensitive to reveal to the applicant and too crucial to consider fairly without the applicant's personal input. The special counsel procedure cannot always resolve this problem, because counsel is barred from taking instructions from the applicant once the information is disclosed. In such circumstances, the provisions may require the court to resolve the matter without a fair hearing. Last year, the House of Lords held that a similar regime would be incompatible with the right to a fair hearing, unless the court had additional powers, on fairness grounds alone, to either disclose the information to the applicant or to resolve the matter in the applicant's favour.

The Statement of Compatibility also remarks:

There are no less restrictive means to reasonably achieve the purpose of protecting confidential intelligence information.

The Committee notes the following regimes from other jurisdictions:

• The National Security Information (Civil and Criminal Proceedings) Act 2004 (Cth}, which governs all federal matters (including the making of control orders in relation to suspected terrorist acts) provides for ex parte procedures for the redaction or summarising of protected documents. However, substantive proceedings are determined solely on the basis of information that is released to all the parties.

o Canada's Security Intelligence Review Committee, which first developed the special counsel procedure in the context of deportation proceedings, requires the special counsel to negotiate a statement of the 'gist' of the evidence contained in the confidential document, which is immediately handed to the excluded party and his or her lawyer to facilitate vigorous advocacy about the protected evidence.

o The Prevention of Terrorism Act 2005 (UK) requires the court to consider requiring the state to provide a summary of the protected information to the subject of the order and, in the event the summary isn't provided, to withdraw the protected information from its consideration. As interpreted by the House of Lords, the legislation also empowers the courts to either disclose any information or to quash the control order if doing so is necessary to protect that party's right to a fair hearing.

The Committee observes that the statement of compatibility does not address why these alternatives are not reasonable available in relation to proceedings for revoking or reviewing coercion or exclusion orders.

The Committee will write to the Attorney-General seeking further information as to whether the Commonwealth, Canadian or United Kingdom schemes would reasonably achieve the purpose of protecting confidential intelligence information.

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

1. Whether or not clauses 4, 14 and 15, by permitting a court to determine certain proceedings on the basis of evidence that is kept secret from one party and his or her lawyers, may limit that party's Charter rights to a fair hearing and to other rights at stake in the proceeding.

2. If so, whether or not clauses 4, 14 and 15 are reasonable limits on the applicant's Charter rights under the test in Charter s. 7{2) and, in particular, whether or not there are less restrictive means reasonably available to achieve the purpose of protecting confidential intelligence information.


Minister's !Response

I write in reference to the Scrutiny of Acts and Regulations Committee (the Committee) Alert Digest No 15 of 2008 regarding the Major Crime Legislation Amendment Bi/12008 (the Bill).

The Alert Digest report makes a number of 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 Margaret Byrne of Justice Policy, Department of Justice (8684 1034).


23 February 2009

With reference to the queries raised by SARC I make the following remarks.

The Committee is concerned that the Statement of Compatibility does not address the compatibility or otherwise of clause 3{2)'s extension of the coercive powers scheme with human rights

Clause 3(2) extends the definition of 'organised crime offence' to ensure that serious and organised crime involving the abuse of children and paedophilia networks are captured as relevant offences for the purpose of coercive questioning powers under the Act. Clause 3(2) therefore extends the

63


64

statutory scheme of the Major Crime (Investigative Powers) Act 2004 (Major Crime Act) to a new category of criminal offence. The amendment made by the Bill does not of itself engage any Charter rights and I consider, for the reasons set out below, that the compulsory questioning powers set out in the Act are compatible with human rights in the Charter.

The statutory scheme of the Major Crime Act

Section 29 of the Major Crime Act confers power on the Chief Examiner to conduct an examination of a person in relation to an organised crime offence5 if he has received a copy of a coercive powers order made by the Supreme Court6 in relation to that offence. If a coercive powers order is in force, the Supreme Court (under s 14}, or the Chief Examiner (under s 15} may issue a witness summons for the attendance of a witness at an examination by the Chief Examiner to give evidence and/or produce documents or other things.

Section 39 provides that, at an examination by the Chief Examiner, the common law privileg~ against self-incrimination is expressly abrogated. lt provides:

A person is not excusedfrom answering a question or giving information at an examination, or from producing a document or other thing at an examination or in accordance with a witness summons, on the ground that the answer to the question, the information, or the production of document or other thing, might tend to incriminate the person or make the person liable to a penalty.

The Major Crime Act envisages that the witness may already have been charged. 7 Fairness of the criminal proceedings are safeguarded through an obligation on the Chief Examiner to take all reasonable steps to ensure that the conduct of the examination does not prejudice those proceedings.

Sub-section (3} of s 39 prohibits the direct use of any answer, document or thing in evidence against the witness in a criminal proceeding or a proceeding for the imposition of a penalty. lt creates a "direct use immunity". There is no prohibition on the "derivative use" of the answers given by the person summonsed. This means that, although the actual answers will be inadmissible, evidence discovered as a result of the answers given can be used against that person in criminal proceedings.

Privilege against self incrimination

Section 25(2)(k) of the Charter provides that a person cannot be compelled to testify against himself or herself or to confess guilt. In addition, section 24(1) guarantees the right to a fair trial, which some jurisdictions have interpreted as including a protection against self-incrimination.

The Victorian Courts have yet to consider the scope of these rights in 'the context of powers to conduct compulsory questioning.

In other jurisdictions equivalent rights have been interpreted as being limited to 'testimonial disclosures' and therefore would apply to requirements to answer questions but not to the production of documents or 'things'.

In relation to answering questions, the United States Supreme Court has interpreted the right as requiring not only a direct use immunity, as is provided in the Act, but also a derivative use immunity. However, this approach has not been followed by other jurisdictions where a direct use immunity is generally regarded as sufficient to protect the right: see particularly the decision of the Court of Final Appeal of Hong Kong (including Sir Anthony Mason) in HKSAR v Lee Ming Tee {2001} HKFCA 14.

Sees 3 for a definition of "organised crime offence".

Section 8 confers power on the Supreme Court to make a coercive powers order.

See s 18 and s 29(2).

The Supreme Court of Canada has considered that the use of compulsory questioning powers for an improper purpose, including to obtain an advantage in the prosecution of existing criminal proceedings, could amount to a breach of the right to fundamental justice in s 7 of the Canadian Charter. In such cases, the Court can exclude evidence that has been improperly obtained or, if the improper purpose is apparent at the time of questioning, prevent the questioning from occurring. The Canadian courts also provide a partial derivative use immunity, with courts having the discretion to exclude derivative evidence in a criminal trial.

The right to fundamental justice in the Canadian Charter is a much broader right than the right to a fair hearing in s 24(1) of the Victorian Charter. The Hong Kong Court of Final Appeal has declined to give such a broad interpretation to its fair hearing right. In any event, there remains a common law discretion to restrain questions in cases where the examination is being conducted for an improper purpose or constitutes an abuse of process: see Hamilton v Oades (1989) 166 CLR 486. Similarly, there remains the common law discretion ta exclude evidence to protect against an unfair trio/ although this would not extend to exclusion of derivative evidence simply on the basis of it being derivative evidence where the privilege has been abrogated by statute.

In light of the case law, I consider that the privilege against self incrimination protected by s 25(2)(k) and/or s 24(1) of the Charter is not limited.

Even if a broader view of the scope of the rights were adopted, I consider that the limits placed upon them would be reasonable and justified having regard to the factors set out in s 7(2) of the Charter. The difficulties in investigating and prosecuting organised crime are well-known. While the privilege against self-incrimination is an important right, the compulsory questioning scheme set out in the Act avoids the risks and concerns to which the right is principally directed, namely the risk of torture and other improper means by which incriminating answers may be obtained and the unreliabi/ity of forced confessions. The Act prescribes a scheme under which the questioning must be authorised by a Supreme Court judge, is conducted by an independent person (the Chief Examiner), is subject to scrutiny by the Special Investigations Monitor, contains a direct use immunity, and contains a number of other procedural protections.

Accordingly, I consider the provisions are compatible with the privilege against self incrimination protected by s 25(2)(k) and/or s 24(1) of the Charter.

Fair hearing and prejudicial publicity

The ability to use compulsory questioning powers in respect of persons who have been charged with an offence has the potential to prejudice a fair trial, particularly if the evidence of that person were to be published. However, the Act contains a number of safeguards to ensure a person's fair trial is not prejudiced, including the requirement to hold examinations in private (s 35), the restrictions on publication (s 43) and the obligation on the Chief Examiner to take all reasonable steps to ensure that the conduct of the examination does not prejudice criminal proceedings of which the Chief Examiner is aware (s 29(3)).

Accordingly, I consider that the provisions are compatible with the right to a fair hearing in s 24(1) of the Charter.

Other rights engaged by the Charter. There is no incompatibility between s 39(1) of the Major Crime Act

The compulsory questioning powers engage a number of other rights protected by the Charter, including:

1. the right to freedom of movement, through the requirement to attend for questioning; and

2. the rights to privacy and freedom of expression, through the requirement to provide information and answer questions.

65


66

However, I consider that the right to privacy is not limited as any interference is neither unlawful nor arbitrary and any limits on freedom of movement and freedom of expression are reasonable and justified in light of the importance of and difficulties in investigating and prosecuting criminal offences of this nature.

The Committee seeks further information as to whether the Commonwealth, Canadian or United Kingdom schemes would reasonably achieve the purpose of protecting confidential intelligence information

The schemes referred to by the Committee in relation to the Commonwealth, Canada and the United Kingdom are significantly different to the statutory scheme of the Major Crime Act and, in my view, are not comparable. The Major Crimes Act provides for compulsory questioning powers in the context of investigations into serious crime. By way of contrast the schemes referred to by the Committee involve court proceedings with the potential to impose very significant and ongoing restrictions on a person's rights, including their liberty.

In relation to the United Kingdom scheme, for example, a person subject to a control order under the Prevention of Terrorism Act 2005 is subjected to severe restrictions. In Secretary of the State for the Home Department v MB, AF was subject to a control order that, among other obligations, confined him to· a flat for 18 hours a day. 8

Given the nature of such severe restrictions and the consequences of a control order being made by a Court, it is understandable that the House of Lords considered that the Court should have the power to disclose confidential information to a person seeking to challenge such an order where necessary to protect that person's right to a fair hearing.

In relation to the Major Crime Act, a person to whom a coercive powers order applies may be issued with a witness summons to attend an examination with the Chief Examiner to give evidence and/or produce documents or other things. For the reasons already discussed, I consider the statutory scheme of the Major Crime Act is compatible with the Charter. A summons to answer questions does not involve the same extent of restrictions upon liberty, movement or privacy as a control order. The consequences of a person not succeeding in an application for the revocation of a coercive powers order are far less extreme than the consequences of a person not succeeding in challenging a control order.

A more comparable scheme in the United Kingdom would be the investigation powers of the Serious Fraud Office under the Criminal Justice Act 1987 (UK). That Act does not contemplate any disclosure whatsoever of investigatory material nor any ability to challenge the use of co-ercive powers. The co-ercive powers are able to be exercised without a court order.

However, as I stated in the Statement of Compatibility, a person's rights under s 24(1} of the Charter are limited by clauses 4, 14 and 15 of the Bill, as such clauses potentially prevent a person from fully presenting his or her case to a court and from knowing the case against him or her. I consider the limitations are reasonable and justifiable, given that the purpose of the limitations is to protect confidential information, and ultimately to protect the safety of individuals, including members of the police force; persons who have been called or who have appeared as witnesses; informants and persons whose names appears in evidence given.

The Committee also referred to the Police Integrity Act 2008 (Police Integrity Act) and stated that, under that Act, information that a court determines cannot be disclosed to a litigant is excluded from the proceedings altogether. The comparable provisions of the Police Integrity Act relate to the production of protected documents. Where a person subpoenas a 'protected person' (including a person who is or was: the Director; the Acting Director; or a member of staff of the Office of Police Integrity), and the protected person objects to the production of the document or other thing, the

[2007] UKHL46 (31 October 2007) at [6].

protected person must give notice of the objection to each party to the proceeding, indicating the category of the document or other thing, and apply to the court to determine the application:

(a) by confidential affidavit that is not disclosed to one or more of the parties or any representative of those parties; or

(b) at a hearing held in closed court in which the protected person and each party to the proceeding has a right to be heard by the court regarding the objection; or

(c) at a hearing held without notice to, and without the presence of, one or more of the parties or any representative of those parties; or

(d) by any combination ofthe methods set out in paragraphs (a), (b) and (c).

The court must refuse to require production of the document or other thing, or to allow a party to the proceeding to inspect the document or other thing if the court determines that the document or other thing is a protected document or other thing. In such a case, the court's decision to refuse to require production (and to prevent the document or other thing forming part of the evidence of a proceeding) does not assist the person seeking production, as the person is seeking access to the document or other thing to support his or her case. Such a situation is not analogous to one in which the court is considering whether or not to revoke a coercive powers orders and whether or not to allow a person subject to, or potentially subject to, such an order access to confidential information which formed the basis of that order of which the person is probably not aware and which may not relate, in large part, to the person seeking the revocation of the order. lt would not be appropriate for a court in such circumstances to not have regard to the confidential information, as it is the confidential information that originally supported the making of the coercive powers order and thus which the court will also need to have regard to when determining whether or not to revoke the relevant order.

The Committee thanks the Attorney-General for this response.

Committee Room 10 March 2008

67


68


Tuesday, 31 March 2009

Bushfires Royal Commission (Report) Bill 2009 Crimes Amendment (Identity Crime) Bill2009

Electricity Industry Amendment (Premium Solar Feed-in Tariff) Bill 2009 Human Services (Complex Needs) Bill 2009 Legislation Reform (Repeals No. 4) Bill 2009

Statute Law Amendment (Charter of Human Rights and Responsibilities) Bill 2009


Primary Industries Legislation Amendment Bill 2008

69

of Acts and Committee

Bushfires Royal Commission (Report) Bill 2009


Purpose and Background

10 March 2009 12 March 2009 Legislative Assembly Hon. John Brumby MLA Premier

The Bill makes provision for the publication of a Report of the Bushfires Royal Commission and provides a process for publishing and attaching Parliamentary privilege to those Reports when parliament in not sitting by allowing the Minister to give a copy of the Report to the clerk of each House of the Parliament. A Report that is given to the clerk in this way is deemed to have been ordered by the House to be printed.

The Bill requires that, as soon as practicable, the clerk of each House must notify all members of the House that the Report has been received and is available on request and to give a copy of the Report to any member of the house upon request to the clerk.

The Report must also be tabled in the House on the next sitting day ofthe House.

Note: Where the procedure provided in the Bill is followed, sections 73 and 74 of the Constitution Act 1975 apply to the publication of the Report, as does any other law relating to the publication of the proceedings of Parliament. This provides absolute privilege to the publication of the Report and protects any person from civil or crimina/liability arising from the publication of the Report or copies of the Report.


Crimes Amendment (Identity Crime) Bill 2009



[Clauses]


10 March 2009 12 March 2009 Legislative Assembly Hon. Rob Hulls MLA Attorney-~eneral

• Crimes Act 1958 to create offences in relation to identity crime and the Sentencing Act 1991 to provide for the issue of certificates to victims of identity crime; [3, 4, 6 and 7]

• Children, Youth and Families Act 2005and the Sentencing Act 1991 to make technical amendments concerning sentencing procedures where a court reduces a sentence in circumstances where the offender has pleaded guilty. The procedure will allow a court to record a statement in writing or any other form concerning the sentence it would have imposed but for the guilty plea. [5, 8 and 9]

70

Extracts from the Second Reading Speech with cross-references to relevant clauses-

Existing Victorian Jaws cover aspects of identity crime, including obtaining property or financial advantage by deception, but they do not comprehensively criminalise identity crime. This bill will redress this situation by enacting three specific identity crime offences.

The new offences will cover-

o making, using or supplying identification information with intent to commit an indictable offence;

o possessing identification information with intent to commit an indictable offence; and

o possessing equipment capable of making identification documentation with intent to commit an indictable offence. [3 and 4]

The requirement to prove intent to commit an indictable offence will ensure that the Bill does not capture innocent possession (such as holding a friend's licence at her request) or relatively minor offending behaviour (such as using fake ID to buy alcohol).

Rather, the offences will target preparatory behaviour that is specific to identity crime and that is often not covered by current Victorian law. For example, if a shop employee uses a skimming device to download customers' credit card information with the intention of then using that information to buy goods illegally, he or she would not be guilty of fraud or theft until the information is used. However, he or she would be captured by the new possession offence. This will allow police to be more proactive in their investigation of such offences, and will also facilitate the prosecution of offenders. [3 and 4]

The certificate provisions in the Bill will allow victims of identity crime to obtain a court certificate to assist them in remedying the effects of the crime .... Courts will be able to issue certificates following a finding of guilt for an identity crime offence. This is consistent with provisions in Queensland and South Australia .... the government has decided to opt for a scheme that allows certificates to be issued after an offender has been found guilty. [6]

Charter Report

Rights in criminal proceedings - Notice of charges -Alternative verdict

Summary: The Committee considers that clause 4 engages defendants' Charter right to be informed promptly of the nature of the charge. The Committee will write to the Minister expressing its concern about the Statement of Compatibility in respect of clause 4.

The Committee notes that clause 4, inserting a new section 426 into the Crimes Act 1958 (Vie), provides that a jury may find a person charged with one offence (making, using or supplying identification information) guilty of an alternative offence (possession of identification information.) The Committee considers that clause 4 engages defendants' Charter right to be informed promptly of the nature of the charge. 1


1

New Zealand courts have held that the right refers to the charges actually laid, not charges that the police might be in a position to make but have not yet made: R v. K {1995} NZLR 440, 447 (HC). On

Charter s. 25(2)(a) provides that: 'A person charged with a criminal offence is entitled without discrimination... to be informed promptly and in detail of the nature and reason for the charge .. .'

71


this view, the right does not extend to lesser included offences, therefore clause 4 does not limit an accused's right to be informed.

The Committee observes that R v K held that the defendant did not have to be notified of charges before he was 'in peril of them'. 2 However, the effect of clause 4 is that a defendant will be 'in peril of' being found guilty of possessing identification information whenever he or she is charged with making, using or supplying identification information.

The Committee considers that the Statement of Compatibility to the Criminal Procedure Bill correctly concluded that alternative verdict provisions 'limit an accused's right to be properly informed promptly and in detail of the nature of the charge'.

The Committee will write to the Minister expressing its concern about the Statement of Compatibility in respect of clause 4. Pending the Minister's response, the Committee draws attention to clause 4.

Privacy and reputation - Fair hearing - Rights in criminal proceedings - Retrospective penalties -Identity crime certificates - Procedures at hearing -Naming of defendant- Appeals

Summary: Clause 6 makes no provision for procedural rights of defendants, for whether or not the defendant can be named and for appeal rights, in respect of identity crime certificates. lt therefore may engage a number of the defendant's Charter rights. The Committee wiJJ'write to the Minister seeking further information.

The Committee notes that clause 6, inserting a new Part 4A into the Sentencing Act 1991, provides that a court, after it finds a person guilty of an identity crime offence, may issue a certificate to the victim of the offence. However, no provision is made for any role for the defendant in the hearing or for any appeals in respect of identity crime certificates. This contrasts with other 'orders in addition to sentence', all of which can be appealed as part of the defendant's sentence and many of which provide for express rights for the defendant to appear, make submissions and test evidence at the hearing, or for constraints on fact-finding by the court.3


Charter section 25{2)(d) protects the right of an accused to be tried and to defend himself or herself in person or through legal assistance. Clause 6 permits a court that has found an accused guilty of an identity crime offence. to issue a certificate to a person who is a victim of the offence. This clause does not engage the right to be tried in person, it is contingent on a finding of guilt.

The Committee observes that the issuing of a certificate is not only contingent on a finding of guilt, but also requires the court to make additional findings about the offence the defendant committed:

• that the use of identification information was a necessary element of the offence;

• that the victim's identification information was used in connection with the commission of the

offence; and

• that the victim did not consent to that use.

Moreover, new section 89G{b) permits a court to include 'any other matter the court considers relevant' in the certificate. These findings and matters may have legal implications for the defendant in subsequent

72

R v K [1995] 2 NZLR 440

See definition of 'sentence' in s. 566 of the Crimes Act 1958 and ss. 83, 84(7), 85F, 85G, 87A(6), 87G, 871, 89C of the

Sentencing Act 1991.


proceedings, e.g. civil litigation between the victim and the defendant, or in professional discipline matters. The Committee therefore considers that clause 6 may engage the defendant's Charter rights to a fair hearing and to minimum procedural guarantees in criminal proceedings.4

The Committee also observes that clause 61acks a provision (contained in the exposure draft and MCLOC model laws) barring the court from naming the defendant in the certificate. The Committee is concerned that naming the defendant, at least where the certificate includes matters that go beyond the mere fact that the defendant is guilty of an offence, may (in the absence of procedural protections) amount to an unlawful attack on the defendant's reputation. 5 In extreme cases, such a certificate may even be a 'penalty' for the purposes of the Charter's right against retrospective increases in criminal penalties6 (so that clause 7, providing for the retrospective operation of clause 6, may limit that right.)

Finally, the Committee is concerned that the absence of a mechanism to appeal the making of a certificate may limit the defendant's Charter right to a fair hearing and to have convictions and sentences reviewed by a higher court in accordance with the law.7 In particular, there is no express provision governing what happens to an identity crime certificate if the defendant successfully appeals against the offence in respect of which the certificate was issued.


1. What procedural rights will a defendant have at a hearing for the issuing of an identity crime certificate?

2. Will the court be able ta include the defendant's name in the identity crime certificate?

3. Will the defendant be able to appeal against the issuing of an identity crime certificate?

4. What happens if an identity crime certificate is issued and the defendant successfully appeals against the conviction for the identity crime offence?

Pending the Minister's response, the Committee draws attention to clauses 6 and 7.


Electricity Industry Amendment (Premium Solar Feedaftffij 1~1roff~ ~am 2[))(Qlg)


!Purpose and Background

11 March 2009 12 March 2009 legislative Assembly Hon. Peter Batchelor MLA Minister for Energy and Resources

The Bill facilitates and regulates the payment of a premium feed-in tariff to Victorian residential electricity customers with grid connected, small scale solar photovoltaic systems to assist Victorian households in making a personal contribution to tackling climate change. The Bill will amend the Electricity Industry Act 2000 and the National Electricity (Victoria) Act 2005 to provide for the establishment of this scheme.

4

5

6

7

Charter ss. 24( 1) & 25(2).

Charters. 13(b) provides that: 'A person has the right ... not to have his or her reputation unlawfully attacked.'

Charters. 27(2) provides that: 'A penalty must not be imposed on any person for a criminal offence that is greater than the penalty that applied to the offence when it was committed.' .

Charter ss. 24(1) & 25(4).

73


Key points from the Second Reading Speech-

This Bill will introduce a premium solar feed-in tariff scheme to support Victorian households who choose to invest in solar photovoltaic systems.

Feed-in tariffs apply to power generated by customers and supplied to the electricity network. The Bill provides for Victorian households with small scale solar power systems to be credited a premium rate of no less than 60 cents for every unused kilowatt hour of power fed back into the grid. The credit will apply to all systems of up to 3.2 kilowatts capacity installed at a customer's principal place of residence. The scheme will run for 15 years and have a cap of 100 megawatts of generating capacity.

Clauses 5 to 13 make consequential amendments to the existing provisions and insert new sections that set out the various elements of the premium solar feed-in tariff scheme. These new sections largely mirror the existing provisions.


Clause 2 provides that the Act on proclamation but not later than by 1 July 2011. Neither the Explanatory Memorandum nor the Second Reading Speech explain the necessity or desirability for a potential two year delay in commencement.

Delayed commencement -Inappropriate delegation of legislative power


The Committee will seek further information from the Minister.


Human Services (Complex Needs) Bill 2009



10 March 2009 12 March 2009 Legislative Assembly Hon. Daniel Andrews MLA Minister for Health

The purpose of the Act is to facilitate the delivery of welfare services, health services, mental health services, disability services, drug and alcohol treatment services and housing and support services to certain persons with multiple and complex needs by providing for the assessment of such persons and the development and implementation of appropriate care plans.

The proposed Act makes provision for the assessment of eligibility and the preparation and monitoring of care plans.

The Bill will repeal the Human Services {Complex Needs) Act 2003.

74

Notes:

Clause 7 provides the criteria for the determination of who is an eligible person for the purposes of the Act.

An eligible person must have attained at least 16 years of age and appear to satisfy 2 or more of the following criteria -

o has a mental disorder within the meaning of the Mental Health Act 1986;

o has an acquired brain injury;

o has an intellectual impairment;

o is an alcoholic or drug-dependent person within the meaning of the Alcoholics and Drug-dependant Persons Act 1968.

In addition, the person must have exhibited violent or dangerous behaviour that caused serious harm to himself or herself or some other person or is exhibiting behaviour which is reasonably likely to place himself or herself or some other person at risk of serious harm and be in need of intensive supervision and support.

Clause 8 provides that a person must not be determined to be an eligible person if they refuse to be considered for eligibility.


llegislation Reform (Repeals No. 4} Bill 2009


Purpose and Backgrqund

10 March 2009 12 March 2009 Legislative Assembly Hon. John Brumby MLA Premier

The Bill repeals 50 spent or redundant Acts relating to land amongst them are forty-five (45) principal Acts.

The Committee notes the following extracts from the Second Reading Speech -

The Schedule to the Bill lists the spent and redundant Acts to be repealed. The focus of this Bill is on land. The Acts identified for repeal largely relate to legislation that revoked permanent reservations over, and grants ot Crown land to provide changes in land status to support government or projects supported by government. A number of the Acts provided leasing powers that are now contained in the Crown Land (Reserves) Act 1978.

The Acts to be repealed have been identified as suitable for repeal following a review of Victoria's legislation by the Office of Chief Parliamentary Counsel and the Department of Sustainability and Environment.


Rights and obligations -In respect to the repeal of Acts that may have included provisions creating rights or imposing obligations the Committee notes the operation of section 14(2)(e) of the Interpretation of Legislation Act 1984. The section relevantly provides that-

75


Where an Act or a provision of an Act is repealed or amended or expires, lapses or otherwise ceases to have effect the repeal, expiry, lapsing or ceasing to have effect of that Act or provision shall not unless the contrary intention expressly appears affect any right, privilege, obligation or liability acquired, accrued or incurred under that Act or provision.

No compensation and specific compensation provisions - A number of the Acts to be repealed include provisions providing that the Crown has no obligation to pay compensation and some Acts make provision for specific compensation. These Acts are noted in the explanatory memorandum which, in each case notes that any compensation rights are preserved by the operation of section 14 of the Interpretation of Legislation Act 1984.

Section 85, Constitution Act 1975 - The Committee further notes that a number of these Acts contain a section 85. Constitution Act 1975 declaratory provision varying or altering the jurisdiction of the Supreme Court. The explanatory memorandum refers to these Acts at items 1.28 to 1.34.

Further Committee report- On 12 March 2009 the Legislative Assembly referred this Bill to the Committee for further consideration, inquiry and report and the Committee expects to table its report in May 2009.


Statute Law Amendment (Charter of Human Rights and Responsibilities} Bill 2009


Purpose

10 March 2009 12 March 2009 Legislative Assembly Hon. Rob Hulls MLA Attorney-General

The Bill amends seven Acts to ensure their compatibility with the Charter of Human Rights and Responsibilities Act 2006 (the 'Charter').

The Acts to be amended contain provisions that are potentially incompatible with the human rights contained in the Charter and the Bill seeks to ensure that each of these Acts can be read compatibly with Charter rights.

The Bill amends these Acts in respect to the right to equality (section 8), right to freedom of expression (section 15}, and the right to the presumption of innocence (section 25(1) of the Charter).


Right to equality- Charter, section 8 (refer to clauses 5 and 6 of the Bill)

Education and Training Reform Act 2006

Extract from the Second Reading Speech-

76

The section requiring amendment currently provides that only people under the age of 65 are entitled to be re-employed on an ongoing basis in the teaching service. Instead, re-employment will be based on competence, capacity and satisfaction of the criteria for registration as a teacher, rather than age.

Right to freedom of expression- Charter, section 15 (refer to clauses 17 and 13 of the IBill)

Victorian Urban Development Authority Act 2003 Project Development and Construction Management Act 1994

Extract from the Second Reading Speech -

[the Acts].contain confidentiality provisions which limit freedom of expression, by making it an offence for a person to communicate any information obtained because of their connection with the relevant agency or a particular development, except when carrying out official duties. The offence provision currently criminalises the disclosure of all information. The Bill* will be amended so that it will be an offence to communicate confidential information, rather than all information.

*semble. These Acts will be amended.

Right to the presumption of innocence- Charter, section 25(1)

Extract from the Second Reading Speech-

Four of the seven Acts to be amended contain 'reverse onus' provisions which limit the right to be presumed innocent under the Charter. Most criminal offences require the prosecution to prove all elements of the offence beyond reasonable doubt. 'Reverse onus offence' is an umbrella term for offences which require the defendant to prove a defence, disprove a presumption or disprove an element of the offence, in order to escape liability. In the context of a reverse onus offence, a distinction can be drawn between a legal onus and an evidential onus. A legal onus requires the defendant to prove a defence. An evidential onus requires the defendant to simply point to evidence that raises their defence. Reverse onus offences may limit the right to be presumed innocent under the charter, because of the risk that a person may be found guilty through their inability to prove their defence even where there is reasonable doubt that they are guilty. An evidential onus on the defendant is much more likely to be compatible with the right to be presumed innocent than a legal onus.

The proposed amendments will ensure compatibility with the right to be presumed innocent by making amendments which change reverse legal onus provisions to reverse evidential onus provisions where appropriate, or removing the reverse onus altogether.

Australian Grands Prix Act 1994

Clauses 3 and 4 amend section 51(5)(a) and (b) of the Act which deals with offences against a regulation made under the Act and provides a transitional provision to cover any existing but incomplete proceedings.

The amended section will respectively provide that an allegation in a complaint that a person named in the complaint was the owner of a specified vehicle, or was the person who parked the vehicle on specified land, is deemed to be proved in the absence of evidence to the contrary (not proof to the contrary as is currently provided).

Fair Trading Act 1999

Clause 7 inserts a new subsection 4(2A) to qualify the current section 4(2) and provides that in any proceedings under the Act concerning a representation made by a natural person about a future matter, the person making the representation is taken not to have had reasonable grounds for making the representation unless the person adduces evidence to the contrary. Currently section 4(2) imposes a legal burden of proof on a defendant in respect to a representation about a future matter and the qualification makes it clear that the section only imposes an evidential burden.

77


Clause 8 inserts a new subsection 14(3). The section concerns false or misleading representations and as in clause 7 above this clause clarifies that a natural person bears only an evidential burden in having to adduce evidence to the contrary.

Clause 9 provides transitional provisions to cover any existing but incomplete proceedings under sections 4 and 14.

Forests Act 1968

Clauses 10 and 11 amend sections 59 and 61 of the Act to remove any reverse onus requirements provided currently in those sections, effectively requiring the prosecution to prove all elements of the offence.

Clause 12 provides transitional provisions to ensure that the amendments apply only to proceedings commenced after the amendments come into force.

Transport Act 1983

Clause 14 amends section 228ZL which currently allows a transport safety officer (the officer) to direct a relevant person to provide assistance to the officer to enable the officer effectively to exercise a power under the Division of that Act. lt is an offence not to comply with such a direction and currently there is a legal burden on the defendant to prove that the direction was unreasonable or the direction given was outside the scope of the business or other activity of the defendant. The amendment removes the legal burden and the defendant needs only present or point to evidence that the direction was unreasonable or on the balance of probabilities that the direction was outside the scope of the business or other activities of the defendant.

Clause 15 amends section 228ZN which deals with an offence to fail to state a person's business address when an officer requires the person to provide it (involving a relevant rail operations business). The section currently places a legal burden on the defendant to establish that they did not have a business address or the person's business address was not connected with rail operations.

Clause 16 provides any necessary transitional provisions to cover any existing but incomplete proceedings involving prosecutions under the relevant sections in clauses 14 and 15 above.

The Committee accepts that the question whether it is justifiable to place an evidential burden on a defendant is one to be considered on a case by case basis. The Committee has previously accepted that a reverse onus provision may be justified whether the offence is regulatory in nature, and where the penalty is a relatively low level fine and does not involve imprisonment and where the evidence to be adduced by the defendant is more easily within his or her knowledge and that evidence would be unreasonably difficult for the prosecution to prove.

The Committee accepts that a proportionate balance must be struck between the effective prosecution of regulatory offences and the rights of a defendant in criminal or pecuniary penalty proceedings.

The Committee draws attention to these provisions and to it's Charter Report below.

Charter Report

Presumption of innocence - Preservation of reverse onuses in current proceedings - Meaning of 'commenced'

Summary: Clauses 4, 9, 12 and 16 preserve current limitations on defendants' Charter rights for proceedings that have already commenced. The Statement of Compatibility does not address these clauses. The Committee will write to the Minister seeking further information.

78

The Committee notes that clauses 3, 10, 11, 14 and 15 repeal existing 'reverse onus' provisions that may limit defendants' Charter right to be presumed innocent until proved guilty.8 However, clauses 4, 9, 12 and 16 preserve the existing provisions - and, hence, any limitations on defendants' Charter rights - for proceedings that have already 'commenced'. The Statement of Compatibility does not address these clauses.

While it is common for ongoing proceedings to be exempted from changes to procedural rules, the Committee observes that such exemptions may be unnecessary with respect to alterations to the burden of proof, which only affect the final, verdict stage of any criminal proceeding. The effect of clauses 4, 9, 12 and 16 (and, hence, the extent of any limitation on the Charter right to be presumed innocence) is unclear, because 'commenced' may refer to the laying of charges, or a variety of later events in criminal proceedings.9


1. Do clauses 4, 9, 12 and 16 limit the Charter's right to be presumed innocent .until proven guilty and, if so, are those limits reasonable according to the test in Charters. 7(2}?

2. When do proceedings 'commence' for the purposes of clauses 4, 9, 12 and 16?

Pending the Minister's response, the Committee draws attention to clauses 4, 9, 12 and 1.6.

Presumption of innocence - Reverse onus provision - Overlapping defences - Transitional operation

Summary: New sub-section 228ZL{5) engages the Charter right of defendants to be presumed innocent until proven guilty. The statement of compatibility does not address this provision. The Committee will write to the Minister seeking further information.

The Committee notes that clause 14, amending s. 228ZL of the Transport Act 1983- a criminal offence for failing to obey a direction from a transport safety office- replaces the following provision that sets out two defences:

(4) In proceedings for an offence against subsection (3), it is a defence if the person charged establishes thot-

(a) the direction was unreasonable; or

(b) without limiting paragraph (a), the direction or its subject-matter was outside the scope of the business or other activities of the person.

New sub-section 228ZL(4) re-enacts s. 228ZL(4)(a) as a traditional defence (where the prosecution bears the burden of proof.) By contrast, new sub-section 228ZL(S) re-enacts s. 228ZL(4)(b) as an express 'reverse onus' provision, with the defendant bearing the burden of proof. The Committee considers that new subsection 228ZL(S) may limit defendants' Charter right to be presumed innocent until proved guilty.10

The Committee has three concerns about the new sub-section 228ZL(S):

8

9

10

Charters. 27(2) provides that: 'A penalty must not be imposed on any person for a criminal offence that is greater than the penalty that applied to the offence when it was committed.'

SeeR v BDW [2009] VSCA 28, [154]-[157].

Charters. 25(1) provides that 'A person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.'

79


First, the statement of compatibility does not address this provision and, in particular, whether or not it is a reasonable limit on the Charter's right to be presumed innocent until proved guilty according to the test in Charters. 7(2).11

Second, the existing defence in s. 228ZL(4)(b) uses the term 'establishes', which is capable of being reinterpreted under Charters. 32 in a way that doesn't limit the Charter's right to be presumed innocent. By contrast, the new sub-section 228ZL(S) uses express language that is not capable of such reinterpretation.12 Clause 14 may, therefore, have widened the definition of the criminal offence ins. 228ZL. The Committee is concerned that it may not be possible for a court to read new sub-section 228ZL(5), which may widen criminal liability, as only applying prospectively, as it is not severable from new subsection 228ZL(4), which is clearly intended to apply retrospectively. New sub-section 228ZL(5) may therefore engage the right of defendants not to be subject to wider criminal liability than applied when they committed the alleged criminal conduct. 13

Third, the subject-matter of the defence in sub-section 228ZL(5) appears to overlap with the subject-matter of the defence in sub-section 228ZL(4). lt is unclear who bears the burden of proof if the defence adduces evidence suggesting that the defence was unreasonable because its scope was outside the business or other activities of the defendant.


1. Is new sub-section 22BZL{S) a reasonable limit on the Charter's right to be presumed innocent until proven guilty according to the test in Charters. 7{2)?

2. Will new sub-section 22BZL{5) apply to offences committed before the commencement of the Bill?

3. What is the relationship between new sub-sections 22BZL{4) and 22BZL{5)?

Pending the Minister's response, the Committee draws attention to clause 14.


11

12

13

80

Charters. 7(2) provides that 'A human right may be subject under law only to such reasonable limits as can be demonstrably

justified in a free and democratic society based on human dignity, equality and freedom .. .'.

Charters. 32(1) provides that 'So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.'

Charter s. 27(1) provides that 'A person must not be found guilty of a criminal offence because of conduct that was not a criminal offence when it was engaged in.' 'Criminal offence' includes the burden of proof for particular elements of the

offence: see Ca/der v Bull, 3 US 386 (1798).


Ministerial CortrEl$IP(Q)!lilcdl~ll'il<e~

Primary Industries Legislation Amendment Bill 2008

The Bill was introduced into the Legislative Assembly on 7 October 2008 by the Hon. Joe Helper MLA.

The Committee considered the Bill on 27 October 2008 and made the following comments in Alert Digest No. 13 of 2008 tabled in the Parliament on 28 October 2008. The Committee wrote to the Minister again on 2 December 2008 in relation to a further matter reported in Alert Digest No. 15 of 2008.

Committee's Further Comments

The Committee notes that the response does not address the issue that the Committee wrote to the Minister about, which concerned the headings to clause 68 and existing s116 of the Fisheries Act 1995. In its Alert Digest no 13 of 2008, the Committee remarked:

that the headings of the existing offence - 'Safe of fish taken in contravention of this Act or corresponding law'- and clause 68 do not adequately describe the scope of the offence, which extends to the possession of such fish. Overseas courts have held that adequate notification of laws is an essential precondition for any law that limits a human right. The Committee considers that it should be made clear that mere possession of a fish, with no intention to sell, may expose the possessor to liability and imprisonment in the absence of an affirmative defence.

The Committee also expresses its surprise at the Minister's remark that existing s116 was found to be reasonable and justifiable when it was reviewed for Charter compatibility in 2007. The Committee reiterates its concern that exposing ordinary end sellers and consumers to a potential prison sentence merely for possessing a fish that someone else has handled illegally, unless they establish a complex defence in court, may go beyond what is necessary to achieve the purpose of protecting environmental resources. The Committee therefore considers that clause 68 may be incompatible with the Charter's right for criminal defendants to be presumed innocent until proven guilty.

The Committee will write to the Minister again concerning the headings to clause 68 and s. 116 of the Fisheries Act 1995, and also expressing its concern about these provisions' Charter compatibility. Pending the Minister's response, the Committee draws attention to clause 68.

Minister's Response

Thank you for your letter of 2 December 2008 concerning the Committee's further comments on the above Bill.

On the first matter- the headings to clause 68 of the Bill and section 116 of the Fisheries Act 1995-the Committee's point is well-made. I have asked the Department of Primary Industries to ensure this matter is addressed at the earliest opportunity in an appropriate amending Bill.

81


On the Second matter, I note the Committee's further comments. I reiterate that, for the reasons set out in the Statement of Compatibility, I am of the opinion that the Bill is compatible with the Charter of Human Rights and Responsibilities.

Joe Helper MP Minister for Agriculture

10 March 2009

Committee Room 30 March 2009

82

Nos. 1 to 15 of 2009 - · PDF fileNos. 1 to 15 of 2009 ... Mr Colin Brooks M lA Mr Khalil...

Documents

Transcript of Nos. 1 to 15 of 2009 - · PDF fileNos. 1 to 15 of 2009 ... Mr Colin Brooks M lA Mr Khalil...