Scrutiny of Acts and Regulations Committee

Alert Digest No 15 of 2007

Ministerial Correspondence

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Legislation Reform (Repeals No. 1) Bill 2007

The Bill was introduced into the Legislative Assembly on 21 August 2007 by the Hon. Rob Hulls MLA. The Committee considered the Bill on 17 September 2007 and made the following comments in Alert Digest No. 12 of 2007 tabled in the Parliament on 18 September 2007.

Committee’s Comment

The Committee noted that it had not received a reference from the Legislative Assembly to review the Legislation Reform (Repeals No. 1) Bill 2007. In absence of such a reference the Committee resolved to suspend deliberation on the Bill and write to the Minister.

Minister’s Response

Thank you for your letter dated 19 September 2007 regarding the referral of the Legislation Reform (Repeals No. 1) Bill (the Bill) to the Scrutiny of Acts and Regulations Committee. This Bill forms part of the Government’s initiative to reform and modernise Victoria’s legislation by repealing spent and redundant legislation.

I have noted that it has been customary for Bills characterised as Statute Law Revision Bills to be referred to the Committee for consideration and report to Parliament.

The Bill was not initially referred to the Committee because it was not considered to be a Statute Law Revision Bill, as it forms part of the Government’s wider Legislation Reform initiative. An earlier precedent for a like Bill was the Treasury Legislation (Repeal) Bill 2005, which repealed a number of redundant Acts in the Treasury portfolio, but was not referred to the Committee.

Whilst there is a distinction between Legislation Reform (Repeals) Bills and Statute Law Revision Bills, given the Committee’s role in reviewing redundant legislation, I propose that any future Legislation Reform (Repeals) Bills be referred to the Committee for consideration and report to Parliament.

Hon. John Brumby MP
Premier of Victoria

30 October 2007

The Committee thanks the Premier for this response.

Transport Accident and Accident Compensation Acts Amendment Bill 2007

The Bill was introduced into the Legislative Assembly on 18 September 2007 by the Hon. Peter Batchelor MLA. The Committee considered the Bill on 8 October 2007 and made the following comments in Alert Digest No. 13 of 2007 tabled in the Parliament on 9 October 2007.

Committee’s Comment

[19].

Explanatory memorandum – Retrospective application

The Committee notes that the relevant section of the 2004 amending Act provided that the amendments made by section 15(2) of the amending Act, which inserted new sections 60(2AA), 60(2AB) and 60(2AC) in the Act, were to apply to transport accidents regardless of when they occurred and to all applications regardless of when they were made.

The Committee does not consider that the explanatory memorandum adequately explains the apparent change in application to the provisions to the proposed new section 192(2) which limits the amendments made by the 2004 amending Act to post amending Act commencement injuries.

Given that the amendment sought has retrospective application the Committee is unable to determine whether any person may be adversely affected by theses amendments.
The Committee will seek further explanatory material from the Minister.

[21].

Explanatory material – statute law revision

The Committee refers to its Practice Note No. 2 of August 2007 which provided that an explanatory memorandum that failed to state the nature of a statute law revision amendment would engage the Committee’s terms of reference on the grounds that it not subject the exercise of legislative power to sufficient Parliamentary scrutiny. In this instance the Committee considers the explanatory memorandum is mechanical and not sufficiently explanatory or helpful.

The Committee will draw further attention to the requirement that Parliament be properly informed and will seek further explanatory material from the Minister.

The Committee will seek further explanatory material from the Minister.

Charter Report

The Committee will seek further advice from the Minister concerning the following matters:

1. What is the purpose of applying the removal of employer-paid superannuation from the definition of pre-injury weekly income retrospectively to all transport accident injuries (where proceedings have not yet commenced) and to workplace injuries that occur after 19 September 2007?

2. What is the purpose of applying the changes to how spinal injuries are assessed retrospectively to all transport injuries and to all workplace injuries (other than workplace injuries where both a claim has commenced and an assessment of the injury as been made?)

3. Do any of the remaining provisions listed in clauses 2(2), 2(3), 2(4), new section 193 of the Transport Accident Act 1986 (inserted by clause 20) and new section 297 of the Accident Compensation Act 1985 (inserted by clause 28) change entitlements to compensation for injuries in a way that is (or is reasonably arguably) less generous to any class of injured persons than the law that existed at the time of their injuries?

4. In 3 above, in each such case, what is the purpose of applying the change retrospectively to any such class?

Pending the Minister’s response, the Committee draws attention to these provisions.

Minister’s Response

I refer to your letter to the Hon. Tim Holding MP, the Minister for Finance, WorlcCover and the Transport Accident Commission (TAC), regarding Transport Accident and Accident Compensation Acts Amendment Bill 2007.1 am responding to you as the Acting Minister for Finance, WorkCover and the TAC.

As the matters raised impact in different ways on the legislative regimes of the Victorian WorkCover Authority and the TAC, I have reported in the attached documents responses as they relate to each agency.

I can also advise that copies of the relevant Practice Notes have been provided to the legislation officers of both agencies.

I trust this information is of assistance to the Committee.

John Lenders MP
Acting Minister for Finance, WorkCover and the Transport Accident Commission

29 October 2007

Transport Accident Commission Response to the Scrutiny of Acts and Regulations Committee

Section 192 - Child Care

The Transport Accident (Amendment) Act 2004 introduced changes to child care and home services benefits. Section 15 of the amending act introduced two separate services:

1. Care of the child (60(2)(c)) and

2. Home services (60(2)(d)) and post acute support.

Section 192 of the Transport Accident Act 1986 (TA Act) requires that the revised child care and home services benefits apply only to persons injured on or after the 1 January 2005, when the 2004 Amendment Act came into force.

The 2004 Amendments also:

1. codified a VCAT ruling that a woman who was pregnant at the time of the accident was entitled to receive childcare assistance (s60(2AB);

2. introduced ongoing home services benefits for people with a severe injury (s60(2AC)); and

3. clarified that assistance under sections 60(2)(c) and 60(2)(d) could not exceed a combined total of 40 hours per week (s60(2AA))

The purpose of the proposed clause 19 in the 2007 Bill is to make a statute law revision amendment only to ensure that those injured before 1 January 2005 are subject to child care and housekeeping service provisions in place before the 2004 amendments, and that those injured after 1 January 2005 are subject to the revised arrangements, that being the clear intention of the 2004 amendments.

The provision does not reduce childcare or home services entitlements. The provision clarifies that for injuries that occurred prior to 1 January 2005, services are considered under the former criteria under sub-section 60(2)(c) and 60(2)(d) and thereafter considered under the provisions relating to childcare and home services as amended by the 2004 Act. These services are not available to anyone injured before 1 January 2005 as they are excluded by operation of section 192. People injured pre 1 January 2005 instead receive childcare services if, pre-accident, they had been mainly engaged in the care of a child, domestic assistance or housekeeping services.

The inclusion of 60(2AA), 60(2AB) and 60(2AC) in section 192 will make no difference to a person’s current entitlements:

• The TAC follows the VCAT ruling in relation to pregnancy in any event, notwithstanding the lack of clarity in the law prior to clear provision being included in 2004;

• People with a severe injury had an ongoing entitlement to domestic services under the former provisions and this was not disturbed by the 2004 amendments; and

• The combined cap of 40 hours per week in relation to childcare and housekeeping (pre 2005) and childcare and home services (post 2005) was contained in the former section 60(2)(d) and is now contained in section 60(2AA)

Section 134 - Statute Law revision

This clause is intended to replace the current definition of registered medical practitioner in Part 10 of the TA Act with a definition that defines a registered medical practitioner consistently by reference to the Health Professions Registration Act 2005, which came into effect on 1 July 2007.

The amendment was missed in the schedule of consequential amendments made by the Health Professions and Registration Act 2005. There are no adverse consequences arising from this amendment.

Charter Report

1. Definition of pre-injury weekly income

The proposed amendment does not remove employer paid superannuation contributions from the definition of pre-injury weekly income in section 6 of the TA Act.

In 2000, the TAC obtained senior counsel’s advice that the correct interpretation of the term ‘superannuation allowances’ in section 6 is a reference to the payment made by the trustee of the superannuation fund to a member and is not a reference to the employer superannuation guarantee contribution.

The source of definition of “income from personal exertion” in section 6 of the TA Act is the original definition of income from personal exertion in the Income Tax Assessment Act 1936 (Cth).

In senior counsel’s opinion the term ‘superannuation allowances’ needs to be interpreted in its proper context of ‘pensions, superannuation allowances, retiring allowances’ and ‘retiring gratuities’ which all refer to post employment sources of income.

Consequently, the TAC has historically considered that it was unable to fund employer superannuation contributions as there was no statutory provision to take into account any employer contribution to a superannuation fund.

It was also understood that the TA Act could not have contemplated funding the compulsory employer contribution as the TA Act came into operation in 1986 before the introduction of the Superannuation Guarantee (Administration) Act 1992.

The purpose of the proposed amendment is to make it quite clear that the status quo prevails and to avoid any confusion by removing the reference to superannuation allowances in section 6 of the TA Act.

There is no decision of the AAT, VCAT, the Supreme Court or Court of Appeal that gives rise to any legitimate expectation that the TAC should fund the employer superannuation guarantee contribution.

The Northern Territory decision of Hasting Deering (Australia) Ltd V Smith [2004] NTCA 13 was concerned with the provisions of the Work Health Act 1992 (NT) (WH Act). The Northern Territory Court of Appeal held that a superannuation contribution was payable as the WH Act referred to normal weekly earnings and remuneration in whole or part other than by reference to the number of hours worked. This Northern Territory provision is quite different from the terms of section 6 of the TA Act.

Perhaps as a result of the Northern Territory decision, two applications for review were filed at VCAT by plaintiff lawyers to test if the reasoning in Hasting Deering could be applied to the TA Act. Those applications have been protected by clause 20, but this does not give rise to a legitimate expectation as they are in effect test cases.

The relevant provisions are deemed to have come into operation on 19 September (on Second Reading) to avoid the possibility of the receipt of many more applications for review in relation to current and past income assessments, all of which would then have been subject to the protection afforded to the current applicants under clause 20.

2. Assessment of Spinal Injuries

The Court of Appeal decision of Taylor only applies to the Accident Compensation Act 1985 (AC Act). The Court did not make any findings on how the direction in the AMA Guides to the Evaluation of Permanent Impairment 4th Edition (‘the Guides’) applied to the TA Act. Section 46A of the TA Act relating to the assessment of impairment is different from section 91 of the AC Act. Specifically, the legislation requires the TAC to determine impairment only once the condition is stabilised.

The Court of Appeal was given the opportunity to make findings on the application of the Guides to the TA Act when the TAC sought leave to intervene. However, the TAC’s application was refused by the Court of Appeal.

Moreover, the Supreme Court decision in Bayliss v Transport Accident Commission (2004) 9 VR 267 (‘Bayliss’), which held that the TAC was correct to ignore the direction in the Guides to assess spinal impairments pre-surgery, is still good law.

The TAC has, since the introduction of the Guides in May 1998, administered this provision consistently with that decision.

The proposed amendments to the TA Act enshrine the current practice and the Supreme Court’s interpretation. The amendments do not retrospectively change an existing entitlement or the method of assessing the permanent impairment of a person injured in a transport accident.

3. Reduction of benefits

No provision in the proposed Bill is less generous to any class of injured persons than the law that existed at the time of their transport accident.

4. Purpose of retrospective changes

a) Clause 2(2), as discussed above, is to make a statute law revision amendment only to ensure that those injured before 1 January 2005 are subject to child care and housekeeping service provisions in place before the 2004 amendments, and that those injured after 1 January 2005 are subject to the revised arrangements, that being the clear intention of the 2004 amendments. No entitlements are adversely affected.

b) Clause 2(3) is to enable CPI indexation of the new impairment lump sum compensation benefits introduced in the 2004 amendments. The indexation needs to be back-dated to enable the monetary value of the 2004 benefit to be brought up to current dollar value and to support benefit indexation already undertaken by the TAC.

c) Clause 2(4) is to avoid the possibility of the receipt of many more applications to VCAT for review in relation to current and past income assessments, all of which would then have been subject to the protection afforded to current applicants under clause 20. The legislative amendments do not alter the existing entitlements of persons injured in a transport accident.

d) Clause 20 - Section 193 is intended to give equal access to all injured persons, regardless of the date of their transport accident, to a variety of increased benefits from the date the Bill is given Royal Assent.

Victorian WorkCover Authority Response to the Scrutiny of Acts and Regulations Committee

Charter Report

1. Clause 24 regarding clarification of employer superannuation as excluded from the definition of pre-injury average weekly income.

The proposed amendment does not remove employer paid superannuation contributions from the definition of pre-injury weekly income in section 5A of the Accident Compensation Act 1985 (“the Act”). The amendment clarifies the historical approach to assessing pre-injury average weekly earnings under the WorkCover scheme.

The relevant provisions are deemed to have come into operation on 19 September (on Second Reading) to avoid the possibility of the receipt of many more applications for review in relation to current and past income assessments.

2. Retrospective effect of Clause 28 in relation to assessment of spinal injuries

The retrospective operation of Clause 28 in relation to spinal injury assessment under the WorkCover scheme is necessary in order to avoid the reopening of past claims before the Bill commences, which could mean the re-determining of past claims in line with the Court of Appeal decision of Mountain Pine Furniture Pty Ltd v Taylor.

3. Less generous entitlements for injured workers pursuant to Clause 28

The Bill changes the way in which permanent impairment is assessed for injured workers with spinal injuries who have surgery. Of these workers, those whose level of impairment decreases (i.e. their condition improves) as a result of surgery, may receive less compensation under Clause 28.

4. Purpose of retrospective change to a class of injured workers in Question 3

The Bill changes the approach to assessment of workers’ spinal injuries following the Taylor decision and does this retrospectively, subject to the preservation of rights under Clause 28. The Bill applies retrospectively to this general group of injured workers and does not seek to distinguish in its effect, between workers whose spinal injuries improve, deteriorate or remain unchanged following surgical treatment. To do so would have the effect of magnifying inconsistencies in the approach to assessing spinal injury under the WorkCover system.

The Committee thanks the Minister for this response.

Transport Legislation Amendment Bill 2007

The Bill was introduced into the Legislative Assembly on 18 September 2007 by the Hon. Tim Holding MLA. The Committee considered the Bill on 8 October 2007 and made the following comments in Alert Digest No. 13 of 2007 tabled in the Parliament on 9 October 2007.

Committee’s Comment

[13]

The Committee reports to Parliament pursuant to a term of reference provided in section 17(a)(vi) of the Parliamentary Committees Act 2003, – ‘inappropriately delegates legislative power’.

The Committee notes the potential for the commencement of some provisions to be delayed for more than one year. In the present case subsection (13) of the commencement provision allows for some provisions to commence before 1 January 2009. The Committee draws attention to its Practice Note No. 1 of October 2005 in which it stated that it would routinely seek further advice from Ministers introducing legislative measures with delayed commencement of more than one year.
The Committee will seek further advice form the Minister.

Pending the Minister’s response the Committee draws attention to the provision.

[14]

The Committee reports to Parliament pursuant to a term of reference provided in section 17(a)(vii) of the Parliamentary Committees Act 2003, – ‘insufficiently subjects the exercise of legislative power to parliamentary scrutiny’.

Explanatory material

The Committee notes that clause 14 appears to have policy implications in respect to the exercise of administrative determination concerning the circumstances in which a person may claim ‘a change of circumstances’ to make an application following disqualification. The Committee is aware of the additional grounds of review of this administrative decision by VCAT (clause 17).

The Committee considers that this matter should have been brought to the attention of the Parliament.

The Committee will seek further explanatory material from the Minister so that Parliament may be informed as to the purpose of these amendments.

[Charter report]

Keywords: Effective protection against discrimination – Decisions about international students’ eligibility for public transport concessions deemed not to be race discrimination – Identification of classes of overseas students on the basis of colour, descent, ancestry, nationality, national origin, ethnicity or ethnic origin – Reduction of Charter’s protections against discrimination

Charter s.8(3) provides that every person is entitled to ‘effective protection against discrimination.’ Discrimination is defined in Charter s.3 to mean discrimination ‘within the meaning of the Equal Opportunity Act 1995’. Section 7 of that Act defines discrimination as meaning ‘direct or indirect discrimination on the basis of an attribute’. Section 6(i) includes ‘race’ as such an attribute and s.4 defines race to include colour, descent, ancestry, nationality, national origin, ethnicity and ethnic origin. Charter s.31 provides that Parliament may override the Charter with respect to a statutory provision and one or more human rights, but declares Parliament’s then intention ‘that an override declaration will only be made in exceptional circumstances’ and provides for scrutiny procedures, including a timely statement in Parliament and a sunset clause.

The Committee notes that clause 23 (inserting new section 220DA into the Transport Act 1983) authorises the Director of Public Transport to determine that ‘overseas students or specified classes of overseas students’ are ineligible for student concessions for public transport and that new section 220DA(3) provides that any such determination ‘does not constitute discrimination on the basis of race for the purposes of the Equal Opportunity Act 1995’. The Committee observes that ‘race’ is a much broader set of attributes than ‘nationality’, which was the sole attribute raised in the adverse finding against the NSW student concession scheme (SUPRA v Minister for Transport Services [2006] NSWADT 83, [53].)

The Committee also observes that the effect of new section 220DA(3) may be to permit the Director, in future, to specify particular classes of overseas students as ineligible for student concessions on public transport on the basis of race, colour, descent, ancestry, nationality, national origin, ethnicity or ethnic origin.

The Committee further observes that the extent of the Charter’s protections against discrimination is defined in terms of the Equal Opportunity Act 1995’s definition of discrimination. The Committee is therefore concerned that clause 23 may operate to reduce the protections against discrimination presently provided for by the Charter.

The Committee will seek further advice from the Minister concerning the following matters:

1. Why does clause 23 deem the Director’s decisions to not be discrimination on the basis of ‘race’, rather than ‘nationality’?

2. Will clause 23 permit the Director to specify a class of overseas students as ineligible for student concessions on public transport on the basis of race, colour, descent, ancestry, nationality, national origin, ethnicity or ethnic origin?

3. Will clause 23 alter the definition of discrimination for the purposes of the Charter?

4. If so, why hasn’t Charter s.31 (override by Parliament) been complied with?

Pending the Minister’s response, the Committee draws attention to this provision.

Minister’s Response

Thank you for your letter of 9 October 2007 regarding the Transport Legislation Amendment Bill 2007.

I make the following comments in response to the Committee’s observations on the Bill.

Delayed commencement of greater than one year

The Committee noted the potential for the commencement of some provisions of the Bill to be delayed for more than one year.

I note that the bulk of the provisions in the Bill commence within 12 months of passage. For example, many provisions commence on the day after the day of the Royal Assent. However, clause 2(13) provides that some residual provisions; that is, those which do have a commencement nominated elsewhere in the section, will not commence before 1 January 2009 unless proclaimed to commence earlier. This approach has been taken for a minority of provisions. These provisions require a lead time just beyond 12 months due to the complexity of the proposals and, in particular, due to the matters required for implementation such as staff training, IT changes, preparation of guidelines and circulars, communications issues and other things.

Inadequate explanatory material

The Committee considers that the explanatory material for clause 14 is inadequate.

Clause 17 of the Bill added disqualification decisions to the list of decisions that can be reviewed by VCAT in relation to commercial passenger vehicle driver accreditation. This led to an examination of the disqualification section itself in section 169C of the Transport Act 1983. That section currently contains some incorrect text and clause 14 corrects this.

There is no point disqualifying a person who was refused driver accreditation mandatorily because they had a category 1 prior conviction, or because they are on a sex offender’s register. The person is already excluded from eligibility so there is no point in any further action. So, text in the current Act concerning this scenario is misconceived and should be removed. On the other hand, when a person with a category 2 or category 3 prior convictions is refused, there is every point examining the prior convictions more closely to see if a disqualification is appropriate.

Clause 14(1) removes the unnecessary reference to category 1 from section 169(3)(b) and inserts necessary references to categories 2 and 3. Clause 14(2) removes from section 169C(5) two paragraphs that are only relevant to a person who was mandatorily refused because of being on a sex offenders register.

These changes are by way of correction only. They are policy neutral. For this reason, the Committee’s comment that the clause “appears to have policy implications” which “should have been brought to the attention of the Parliament” is not correct.

However, the clause note does contain a small error. It states that the amendments are “to align” the disqualifying circumstances with circumstances of mandatory refusal. In fact, the clause note should refer to discretionary refusal.

Rights in criminal proceedings - evidentiary provisions relating to smartcards

The Committee asserts that the statement of compatibility for the Bill fails to address whether or not the new ticketing solution or myki smartcard amendments in the Bill deal with whether or not the provisions are compatible with the rights in the Charter in relation to criminal proceedings.

It was not necessary to deal with this issue in the statement of compatibility for the Bill for the reasons set out in detail in Attachment 1 to this letter. In particular, the ticketing offences to which the provisions relate are not criminal proceedings for the purpose of applying the Charter.

Queries about provisions relating to concessions for full fee-paying overseas students

The Committee has raised some questions in relation to clause 23 of the Bill as follows -

1. Why does clause 23 deem the Director’s decisions to not be discrimination on the basis of “race”, rather than nationality?

The purpose of the amendments is to confirm current policy in this area and, as part of that, to confirm that the policy is not discriminatory.

The new provision enables the Director of Public Transport to formally make conditions relating to entitlement to travel which give effect to the policy. The power only extends to overseas students. Overseas students are defined explicitly in the provision by reference to visa status not by reference to nationality or, obviously, race. The provision creates an exclusion from discrimination on the basis of “race” in the Equal Opportunity Act 1995 in order to dovetail with that Act but only in the very limited way permitted in the amendment.

The amendment does not actually create an exemption that would permit discrimination on the basis of race globally. The power of the Director of Public Transport to make a condition to effect the policy only extends to its coverage of overseas students who are defined narrowly as described earlier. It goes no further It only applies to overseas students defined in terms of their relevant visa status.

The Government obviously has no intention of sanctioning racial discrimination in relation to this concession. The amendment is tied purely to visa status in order to avoid discrimination.

2. Will clause 23 permit the Director to specify a class of overseas students as ineligible for student concessions on public transport on the basis of race, colour, descent, ancestry, nationality, national origin, ethnicity or ethnic origin?

No. See explanation above.

3. Will clause 23 alter the definition of discrimination for the purposes of the Charter?

This is complex issue. It is a matter of statutory interpretation. Similar to the approach taken when the Charter was developed, it is best left to the courts to consider and determine should the issue arise in any future litigation.

4. If so, why hasn’t Charter s.31 (sic) (override by Parliament) been complied with?

An override declaration under this section is only required where Parliament wishes to exclude the jurisdiction of the Supreme Court to make a declaration of incompatibility. There is no need for any action of this type. The Government is not seeking to override the Charter or, as part of that, to exclude the jurisdiction of the Supreme Court in this area. On the contrary, the Government is merely seeking to provide a secure statutory platform under section 32 of the Charter for its policy.

As the Committee has observed itself in its comments, the proposal complies with the Charter as it constitutes a reasonable limitation under section 7(2). As a result, the issue of overriding the Charter does not arise.

I trust this satisfies your queries. If you have any further queries, please contact Ian Shepherd, Deputy General Manager, PTD Legal (Statutory Policy & Legal), on 9655 1701.

Lynne Kosky MP
Minister

30 October 2007

Attachment 1 – Rights in criminal proceedings - evidentiary provisions relating to smartcards

The Statement of Compatibility is correct in relation to these provisions.

Clause 5 and 6 of the Bill insert new evidentiary provisions in respect of Smartcards. These provisions enable certificates to be issued by certain authorised persons in respect of matters such as: card number; card type; the name of the card holder; the use of the card; the entitlement to use public transport; and the accuracy of Smartcard devices.

A procedure is prescribed whereby notice is given by the Informant of the matters. A person who is a defendant to the proceedings may within a specified timeframe give notice that he or she requires the person giving the certificate to be called as a witness or that he or she intends to produce evidence rebutting the matters and the certificate.
If no notice is given, the certificate may be produced as evidence, without the maker being called, and is conclusive proof of the matters contained in it.

If a Defendant gives notice to the Informant that he or she requires the person to be called as a witness or that he or she intends to adduce evidence in rebuttal the certificate is merely deemed to be evidence of the facts contained in it.

However, in the case of a certificate in respect of prescribed processes under new section 230AD is issued, even where notice is given, the certificate will be conclusive proof where the witness is dead, unfit by reason of his or her bodily or mental condition, has ceased to be a person authorised and it is not reasonably practicable to secure his or her attendance, or cannot with reasonable diligence be found.

The relevant Charter rights

Section 24 of the Charter provides that “a person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing”.

Section 25 (1) provides that “a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law”.

Section 25 (2) provides that a person charged with a criminal offence is entitled without discrimination to examine or have examined, witnesses against him or her, unless otherwise provided for by law”.

Is a ticketing offence a criminal offence?

Section 25 only applies to persons charged with a ‘criminal offence’.

It is questionable whether ticketing offences are ‘criminal’ offences for the purpose of section 25. It is arguable that the offences are civil penalties rather than criminal offences.

The only decision to date on the application of the Charter is R v Carl Williams.[1] Williams concerned sections 24 and 25 of the Charter in the context of an application for an adjournment of a criminal trial by the accused on the grounds that the adjournment was required to ensure the availability of “counsel of choice”. In that context, King J briefly described the scope of section 24 as follows:

Section 24 of the Act has the heading “Fair hearing” and gives the person charged with a criminal offence or a party to a civil proceeding the right to have the charge or proceeding decided by a competent independent and impartial court or tribunal after a fair and public hearing. This section thus equates the rights of a person charged with a criminal offence to the rights of a person who is a party to a civil proceeding. A civil proceeding is commenced by the issue of a writ or originating process and a person becomes a party to that process when the writ or originating motion is served upon them. A person is charged with a criminal offence either by way of arrest and information or by summons which is then served upon the person. At either of those stages a person becomes charged with a criminal offence.

Ticketing offences are infringement offences within the meaning of the Infringements Act 2006 (Section 212 Transport Act 1983). Neither an “information” nor a summons is necessary. Based upon King J’s approach, ticketing offences would not come within the scope of section 24 or the criminal limb of section 25.

The jurisprudence of other jurisdictions does not support as narrow approach as that suggested by King J. However, even applying a broader approach, ticketing offences may be regarded as ‘civil penalties’ rather than ‘criminal offences’. It is not within the scope of this advice to provide a detailed analysis of the comparative jurisdictions. However, the following summary is provided in relation to other jurisdictions for your reference.

New Zealand

In New Zealand, it has been held that the equivalent criminal process rights do not apply to parking infringement notices.[2]

United Nations and the ICCPR

In respect of the International Covenant on Civil and Political Rights, the United Nations Human Rights Committee has not limited the application of the criminal limb of the fair trial and/or the criminal process rights to charges brought by way of summons or indictment. It has applied the rights to proceedings of military tribunals.[3] It has also indicated that the scope of the right is not limited to matters classified in domestic law as criminal offences: see draft General Comment 32[4]; citing Perterer v. Austria.[5]

However, the Committee has considered that the criminal process rights did not apply to penalties under the French Bankrupcy Act which it said were civil-law and not criminal-law penalties.[6]

Canada

In Canada, the leading authority is R v Wigglesworth.[7] In that case, Wilson J recognised that it is difficult to formulate a precise test to determine whether proceedings are criminal or penal and instead offered a more general formulation: a matter falls within the section “either because by its very nature it is a criminal proceeding or because a conviction in respect of the offence may lead to a true penal consequence.” According to Wilson J, penal consequences include “imprisonment or a fine which by its magnitude would appear to be imposed for the purpose of redressing the wrong done to society rather than to the maintenance of internal discipline within that limited sphere of activity.” The Court in R v Wigglesworth distinguished between those matters which are “of a public nature, intended to promote public order and welfare within a public sphere of activity” and those that are “primarily intended to maintain discipline, professional integrity and professional standards or to regulate conduct within a limited private sphere of activity.”[8] It is these latter matters that do not fall within the scope of section 11 of the Canadian Charter unless such matters include penalties that are punitive.[9] A penalty may be punitive if it is of a kind intended to address a social harm resulting from the conduct.[10] Such a penalty could be in the form of a fine or a term of imprisonment.

In R v Richard[11] the criminal process rights were held to apply to offences under the Motor Vehicle Act. However, proceedings for such offences could be commenced in a number of ways: by laying of an information before a judge; or by service of a ticket, which had to be accompanied by a notice of prosecution. The prosecution proceeded unless the amount stated in the ticket was paid.

United Kingdom and Europe

The fair trial rights in Article 6(1) of the European Convention on Human Rights applies “in the determination . . . of any criminal charge” against a person. Article 6(2) applies to “everyone charged with a criminal offence”.

In construing that article, the European Court of Human Rights applies three criteria (the “Engel” criteria):

• the classification of the proceedings in domestic law;

• the nature of the offence;

• the nature and severity of the penalty.

• Domestic classification of a matter as civil or criminal is not determinative as to whether the rights under Article 6(1) or 6(2) apply

Applying these criteria, proceedings for tax evasion leading to large financial penalties, commitment to prison for non-payment of the community charge, the penalty regime imposed by the Immigration and Asylum Act 1999 on those responsible for clandestine entrants to the UK, contempt proceedings, and court martial proceedings have all been held to be criminal proceedings for the purposes of art 6. Proceedings in England and Wales whereby a defendant may be bound over to keep the peace or to be of good behaviour involve the determination of a criminal charge. On the other hand, forfeiture orders made against third parties, regulatory offences resulting only in disqualification, the imposition of a special supervision order designed to prevent rather than punish the commission of criminal offences, registration under the Sex Offenders Act 1997 anti-social behaviour orders, a decision of the Parole Board to recall a prisoner released on licence, and a determination under s 4A of Criminal Procedure (Insanity) Act 1964 have been held not to constitute criminal charges under art 6(1).

In Ozturk v Germany, the European Court of Human Rights held that the regulatory offence of careless driving which carried a penalty of a fine only.

There are a number of features of the ticketing offence regime that arguably make the scheme a civil penalty rather than a criminal offence, including:

• Penalties are very small;

• The offences relate to the conditions of carriage, rather than public welfare. They are there to encourage compliance with the public transport scheme, which is now partly a private activity.

• Penalties are generally imposed by way of ticket, rather than criminal prosecution. It is the offender who initiates the review by the Court

On the other hand, we understand that if the person elects to proceeds court, a conviction is recorded against the person. This is a strong indicator of a criminal offence.

Whether the rights are limited

Even if the courts take a broader approach than King J to the scope of the fair hearing and criminal process rights we consider that neither right is limited or any limit is justified. In particular, King J notes:

The right to a fair hearing in s 24 does not incorporate a right of the defence to surprise the prosecution. Although there is a history in Victorian criminal law of requiring full disclosure by the prosecution but not by the defence, this is not a practice shared by many other jurisdictions. Section 24 incorporates the principle of ‘equality of arms’. Where the prosecution is required to disclose all evidence in advance of a hearing, it cannot be said that the principle of equality of arms is breached by also requiring limited (or even full) disclosure by the defence.

The Committee thanks the Minister for this response.

The Committee observes that the definition of a ‘criminal offence’ for the purposes of Charter s.25 is not settled. The Committee also observes that many of the guarantees in Charter s.25(2) are also required by the right to a fair hearing in Charter s.24, which is applicable to both criminal and civil proceedings. The Committee therefore considers that, where a provision of a Bill engages or infringes Charter s.25(2) with respect to a matter that even arguably fits the definition of a criminal offence, the Statement of Compatibility should address whether and, if so, how that provision is compatible with Charter ss. 24 and 25(2).

Committee Room
19 November 2007

Scrutiny of Acts and Regulations Committee
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