Scrutiny of Acts and Regulations Committee

Alert Digest No 5 of 2006

Tuesday, 30 May 2006

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Charter of Human Rights and Responsibilities Bill

Introduced: 2 May 2006
Second Reading Speech: 4 May 2006
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibiliy: Attorney-General

Purpose

The purpose of the Charter of Human Rights and Responsibilities Bill (the ‘Charter’) is to establish a framework for the protection and promotion of human rights in Victoria.

Part 1 sets out the purpose and commencement of the Charter and provides key definitions to be used in the interpretation of the Charter.

Part 2 of the Charter sets out the civil and political human rights protected by the Charter. These rights primarily derive from the International Covenant on Civil and Political Rights 1966 (the ‘Covenant’).

Note: A reference in this report to ‘*Article’ is a reference to the relevant Article in the Covenant.

Part 3 of the Charter outlines the scheme by which human rights are protected by Parliament, courts and tribunals and public authorities.

• The Charter facilitates the protection and promotion of human rights by Parliament in the development of new legislation and increases transparency in the consideration of human rights in parliamentary procedures. All Bills introduced into Parliament must be accompanied by a statement of compatibility prepared by the relevant member of Parliament.

• The Scrutiny of Acts and Regulations Committee will also have a role in the process by examining all Bills introduced into the Parliament and report to the Parliament whether a Bill is incompatible with the Charter.

• The Charter imposes obligations on public authorities to act in a way that is compatible with the human rights protected by the Charter.

• The Charter requires courts and tribunals to interpret Victorian statutes and statutory instruments in a manner that is compatible with human rights so far as it is possible to do so in accordance with the purpose of the statute or statutory instrument.

Part 4 of the Charter changes the name of the Equal Opportunity Commission to the Victorian Equal Opportunity and Human Rights Commission and confers new functions on the Commission. The Victorian Equal Opportunity and Human Rights Commission is intended to act as an independent monitor of the operation of the Charter.

Part 5 of the Charter contains a number of general provisions including requirements for the Charter to be reviewed. It also grants the Governor in Council a power to make regulations and provides for consequential amendments and savings and transitional provisions.

Submissions

The Committee received submissions from the following persons and organisations –

• Rev Daniel J. Palmer, Church and Nation Committee, Presbyterian Church of Victoria

• Mrs Babette Francis, National & Overseas Co-ordinator, Endeavour Forum Inc.

• Dr Railton Hill, Interim State Director, Australian Christian Lobby

Content and Committee comment

[Clauses]

Part 1 – Preliminary

[1]. Provides that the Act may be cited as the Charter of Human Rights and Responsibilities (the ‘Charter’) and provides for the Charter’s purposes.

[2]. Other than Divisions 3 and 4 of Part 3 (clauses 32 to 39), the Charter will commence on 1 January 2007. The remaining provisions commence on 1 January 2008. These provisions govern the interpretation of laws and obligations on public authorities following the enactment of the Charter.

The Committee notes this extract from the explanatory memorandum –

The staggered commencement will allow for a period of approximately 18 months for government departments to review existing laws, policies and procedures to ensure compliance with the Charter.

[4]. Provides guidance concerning the meaning of public authority for the purposes of the Charter and contains the definition of public authority.

Charter rights are in addition to other rights and freedoms

[5]. Declares that the Charter does not limit any right or freedom (whether under international law, the Commonwealth constitution, a law of the Commonwealth, or under common law) that is not included in the Charter.

[6]. Outlines the application of the Charter. Under the Charter only natural persons have human rights. Corporations do not have human rights under the Charter. The provision applies regardless of whether a person is an Australian citizen and applies to all people physically present within the State. In brief, the relevant parts of the Charter apply to the Parliament, courts and tribunals and to public authorities as defined by clause 4.

Part 2 – Human rights

Human rights may be limited

[7]. The Charter provides a general limitation by recognising that no right is absolute and that there may be various limitations imposed on any right.

Under the Charter, a human right may only be subject to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.

The clause recognises that human rights are, in general, not absolute rights, but must be balanced against each other and against other competing public interests.

The factors that may be taken into account when assessing whether a human right may be limited include –

• the nature of the right,

• the importance of the purpose of the limitation,

• the nature and extent of the limitation,

• the relationship between the limitation and its purpose and

• any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

Note: Examples of laws that may reasonably limit human rights are those necessary to protect security, public order or public safety.

Nothing in the Charter gives a person, entity or public authority a right to limit or destroy the human rights of any person.

The Charter rights

Equality before the law

[8.1]. Declares that every person has the right to recognition as a person before the law. *Article 16

[8.2]. Declares that every person has the right to enjoy his or her human rights without discrimination. *Article 26.

Note: The definition of discrimination in the Charter has the same meaning as provided in section 6 of the Equal Opportunity Act 1995.

[8.3]. Declares that every person is equal before the law and is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination. *Article 26.

[8.4]. Provides that certain measures assisting disadvantaged persons does not constitute discrimination.

Right to life

[9]. Declares that every person has the right to life and must not be arbitrarily deprived of life. *Article 6(1).

Note 1: This is to be read together with the savings provision in clause 48 which states that nothing in the Charter affects any law applicable to abortion or child destruction.

Note 2: The right to life has been interpreted in some international judgments as encompassing a procedural obligation to undertake effective coronial investigations where required.

Protection from torture and cruel, inhuman or degrading treatment

[10]. Declares that a person must not be subjected to torture or treated or punished in a cruel, inhuman or degrading way. *Article 7.

Note: In accordance with clause 32(2), courts and tribunals may consider Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 when examining whether conduct amounts to torture.

Paragraph (c) establishes a right not to be subject to medical or scientific experimentation or treatment without full, free and informed consent. *Article 7.

Note: This clause expands on Article 7 of the Covenant as it also includes a prohibition on medical or scientific treatment without consent. In addition it has been modified to provide that consent must be full, free and informed. This modification is intended to reflect the requirements for consent outlined in section 5(1) of the Medical Treatment Act 1988.

It is intended that the rights in this clause may be subject under law to reasonable limitations. For example, under Victorian law there are some well recognised situations where full, free and informed consent to medical treatment is not required. These include where there is an emergency or where a person is incapable of giving consent and consent is provided by a substitute decision-maker. Some procedures are also permitted without consent in accordance with Divisions 4 and 6 of the Guardianship and Administration Act 1986. These procedures will not breach the Charter since they are reasonable limitations under law and can be demonstrably justified in a free and democratic society.

Freedom from forced work

[11]. Declares that a person must not be held in slavery or servitude and establishes a right to be free from forced or compulsory labour. *Article 8(3)(a).

Note: The Charter qualifies the right to freedom from forced or compulsory labour by providing three exceptions to these prohibitions. For example work or service normally required of a person who is under detention because of a lawful court order, or who, under a lawful court order, has been conditionally released from detention or has been ordered to perform work in the community or work or service required because of an emergency threatening the Victorian community or part of the Victorian community or work or service that forms part of normal civil obligations. An example of normal civil obligations is jury service pursuant to the Juries Act 2000.

Freedom of movement

[12]. Declares that every person within Victoria has the right to move freely within the State and to enter and leave it and to choose where to live. *Article 12

Note: Exceptions include restrictions on the freedom of movement of persons lawfully detained, such as prisoners and persons who are subject to a lawful order restricting their movement or where they may live such as those made by the Adult Parole Board.

Privacy and reputation

[13]. Declares a right to privacy and the right not to have his or her reputation unlawfully attacked. *Article 17

Freedom of thought, conscience, religion and belief

[14]. Establishes the right to freedom of thought, conscience, religion and belief and includes the freedom to have or to adopt a religion or belief of a person's choice and the freedom to demonstrate his or her religion or belief in worship, observance, practice and teaching, either individually or as part of a community, in public or in private. The clause also provides that a person must not be coerced or restrained in a way that limits his or her freedom to have or adopt a religion or belief in worship, observance, practice or teaching. *Article 18

Freedom of expression

[15]. Declares that every person has the right to hold and express an opinion without interference. There may be reasonable limitations imposed in respect to this right. *Article 19.

Note: The right to freedom of expression may be subject to lawful restrictions reasonably necessary to respect the rights and reputation of other persons, or to protect national security, public order, public health or public morality.

Peaceful assembly and freedom of association

[16]. Declares that peaceful assembly is the right of every person. Article 21, the clause also establishes the right to freedom of association with others. *Article 22.

Note: Reasonable limits may be justified in order to ensure the safety and security of prison facilities in Victoria .

Protection of families and children

[17]. Declares that families are the fundamental group unit of society and are entitled to be protected by society and the State. *Article 23(1). The clause also declares that every child, without discrimination, has the right to such protection as is in the best interests of the child and which is needed by reason of being a child. *Article 24(1).

Taking part in public life

[18]. Declares that it is every persons right to participate in the conduct of public affairs, directly or through freely chosen representatives and provides that every eligible person has without discrimination, the right to vote and to be elected at periodic State and municipal elections that guarantee the free expression of the will of the electors, and the right to have access, on general terms of equality, to the Victorian public service and public office. *Article 25.

Cultural rights

[19]. Declares that all persons with a cultural, religious, racial or linguistic background must not be denied the right, in community with other members of that background, to enjoy his or her culture, to declare and practise his or her religion, or to use his or her language. *Article 27.

Note: The provision is also based on section 4 of the Multicultural Victoria Act 2004 which enshrines in law a number of important principles of multiculturalism.

The clause recognises and provides specific rights for Aboriginal persons in Victoria. Article 25 of the United Nations Draft Declaration on Indigenous Rights.

Property rights

[20]. Declares that a person must not be deprived of property other than in accordance with the law.

Note: This right does not provide a right to compensation and reflects the constitutional legislative powers of States in respect to ‘fair and just compensation’ confirmed in the recent decision of the High Court in Durham Holdings v New South Wales [2001] 75 ALJR 501.

Right to liberty and security of person

[21]. Declares that every person has the right to liberty and security of the person and must not be subjected to arbitrary arrest or detention.

The clause also establishes a prohibition on the deprivation of liberty, except on grounds and in accordance with procedures established by law.

A person must be informed at the time of arrest or detention of the reason for the arrest or detention and about any proceedings to be brought against the person.

The clause provides a number of procedural rights for persons arrested or detained on a criminal charge such as prompt appearance before a court and no unreasonable delay before a trial. The clause also establishes a number of procedural rights for persons awaiting trial.

A person may seek a declaration or order regarding the lawfulness of a person's detention and requires a court to make a decision without delay and order the release of the person if the court finds that the detention is unlawful.

A person must not be imprisoned only because of his or her inability to perform a contractual obligation. *Articles 9 and 11

Humane treatment when deprived of liberty

[22]. Declares that all persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.

An accused person who has been detained or a person detained without charge, must be segregated from persons convicted of offences, except where reasonably necessary.

An accused person who has been detained or a person detained without charge, has the right to be treated in a way that is appropriate for a person who has not been convicted. *Article 10

Children in the criminal process

[23]. Declares that an accused child who has been detained or a child detained without charge has the right to be segregated from accused and convicted adults.

An accused child must be brought to trial as quickly as possible.

Note: This is a more onerous obligation than the requirement of trial "without unreasonable delay" provided in clauses 21(5)(b) and 25(2)(c).

A child who has been convicted of an offence must be treated in a way that is appropriate for his or her age.* Article 10(2)(b)

Fair hearing

[24]. Declare that a person charged with a criminal offence or a party to a civil proceeding has a right to have the charge or proceeding decided by a competent, independent or impartial court or tribunal after a fair and public hearing.

A court or tribunal may exclude members of media organisations or other persons or the general public from all or part of a hearing if permitted to do so by a law other than the Charter.

Courts and tribunals must make public all judgments and decisions.

Note: The requirement does not apply if the best interests of a child or a law other than the Charter requires or permits otherwise.

*Article 14(1)

Rights in criminal proceedings

[25]. Provides for various rights in criminal proceedings.

• a person charged with a criminal offence to be presumed innocent until proved guilty according to law.

• a person charged with a criminal offence is entitled, without discrimination to certain minimum guarantees (listed in clause 25(2)).

• a child who is charged with a criminal offence is entitled to a procedure that takes account of his or her age and the desirability of promoting the child's rehabilitation.

• a person convicted of a criminal offence has the right to have the conviction and any sentence imposed in respect of it reviewed by a higher court in accordance with law.

*Article 14(2) to (5)

Note: Clause 25(2)(g) qualifies the rights of an accused person in relation to the attendance and examination of witnesses by including the words "unless otherwise provided for by law". This qualification is intended to make it clear that current rules in relation to the cross-examination of certain witnesses, such as children and victims of sexual assault, continue to apply.

Right not to be tried more than once

[26]. Declares that a person must not to be tried or punished more than once for an offence for which that person has already been finally convicted or acquitted in accordance with law. *Article 14(7)

Retrospective criminal laws

[27]. Declares 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.

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.

Declares that if a penalty for an offence is reduced after a person committed the offence but before the person is sentenced for that offence, that person is eligible for the reduced penalty.

Declares that nothing in the clause affects the trial and punishment of any person for any act or omission which was a criminal offence under international law at the time it was done or omitted to be done. The purpose of this provision is to ensure that a person may still be tried and punished for crimes under international law, as long as the offences existed under international law at the time they were committed or omitted. *Article 15

Part 3—Application of Human Rights in Victoria

Statement of compatibility

[28]. Establishes a requirement on a member of Parliament who proposes to introduce a Bill into a House of Parliament to cause a statement of compatibility to be prepared in respect of that Bill.

The statement of compatibility must be laid before Parliament before the member gives his or her second reading speech on the Bill. The requirement applies to both Ministers introducing government Bills and members of Parliament introducing non-government Bills.

The statement of compatibility is not binding on any court or tribunal.

Statement under clause 28 does not affect validity of any law

[29]. Declares that a failure to make a statement of compatibility in respect of Bills does not affect the validity, operation or enforcement of any ensuing Act or any other statutory provision.

Scrutiny of Acts and Regulations Committee to report to Parliament

[30]. The Scrutiny of Acts and Regulations Committee must consider any Bill introduced into Parliament and to report to Parliament as to whether the Bill is inconsistent with human rights.

Note: The requirement also extends to the review of statutory rules pursuant to section 21 of the Subordinate Legislation Act 1994.

Parliamentary override declaration

[31]. Parliament may expressly declare in an Act that the Act or a provision of that Act overrides the Charter notwithstanding an incompatibility with the Charter. The override may only be made in exceptional circumstances such as threats to national security or a state of emergency which threatens the safety, security and welfare of the people of Victoria.

Where a declaration is made it extends to any subordinate instrument made under or for the purpose of that Act or provision.

A Member of Parliament introducing a Bill containing an override declaration to make a statement to the Council or the Assembly explaining the exceptional circumstances that justify the inclusion of the override declaration.

To the extent of the declaration, the Charter will not apply to the Act or provision for which the override declaration has been made and therefore the Supreme Court cannot give a declaration of inconsistent interpretation under clause 36 in respect of that Act or provision.

A provision of an Act containing an override declaration expires after five years however the Parliament may re-enact an override declaration at any time.

The clause also declares that a failure to comply with the procedure in the Charter for an override declaration will not affect the validity, operation or enforcement of any ensuing Act or any other statutory provision.

Interpretation of Laws

[32]. Declares that courts and tribunals must interpret all statutory provisions in a way that is compatible with human rights, so far as it is possible to do so consistently with the purpose of the statutory provision.

Courts and tribunals may consider international law and judgments of domestic, foreign and international courts and tribunals relevant to a human right in reading and giving effect to a statutory provision.

An Act, or a subordinate instrument or provision of a subordinate instrument, will remain valid even if they are incompatible with a human right.

Referral to Supreme Court

[33]. A referral may be made to the Supreme Court where, in a proceeding before a court or tribunal, a question of law arises relating to the application of the Charter or a question arises with respect to the interpretation of a statutory provision in accordance with the Charter. If a question is referred by the Trial Division of the Supreme Court the referral is to be made to the Court of Appeal.

Attorney-General may intervene

[34]. The Attorney-General has an unqualified right (his or her discretion) to intervene in proceedings involving the Charter and may be joined as a party to the proceedings.

Notice of human rights issue arising in a proceedings to be given to the Attorney-General and the Victorian Equal Opportunity and Human Rights Commission

[35]. Contains requirements for the giving of notice to the Attorney-General and the Victorian Equal Opportunity and Human Rights Commission if, in a Supreme Court or County Court proceeding, a question of law arises that relates to the application of the Charter or a question arises with respect to the interpretation of a statutory provision in accordance with the Charter, or if a question is referred to the Supreme Court under clause 33.

Supreme Court may make a declaration of inconsistent interpretation

[36]. The Supreme Court may issue a declaration of inconsistent interpretation in certain circumstances. The section applies if -

(a) in a Supreme Court proceeding a question of law arises that relates to the application of the Charter or a question arises with respect to the interpretation of a statutory provision in accordance with the Charter; or

(b) the Supreme Court has had a question referred to it under clause 33; or

(c) an appeal before the Court of Appeal relates to a question of kind referred to in paragraph (a).

A declaration of inconsistent interpretation does not affect the validity, operation or enforcement of the statutory provision in respect of which the declaration is made, or create in any person a legal right or give rise to any civil cause of action.

Action on declaration of inconsistent interpretation

[37]. The Minister administering the statutory provision in respect of which a declaration of inconsistent interpretation has been made must within 6 months of receiving the declaration prepare a written response to the declaration and cause a copy of the declaration, together with his or her written response to it, to be laid before each House of Parliament and published in the Government Gazette.

Conduct of public authorities

[38]. Declares that it is unlawful for public authorities to act in a way that is incompatible with human rights. It also prohibits public authorities from failing to give proper consideration to relevant human rights when making a decision. The obligation does not apply where the public authority acts to give effect to a statutory provision that is incompatible with a human right in circumstances where they could not reasonably have acted differently or made a different decision.

Legal proceedings

[39]. Provides that if, otherwise because of the Charter, a person may seek any relief or a remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, the person may seek relief seek that relief or remedy on a ground of unlawfulness arising because of the Charter.

Note: (1). The clause does not create a new or independent right of relief or a remedy if there is nothing more than a breach of a Charter right nor does it confer an entitlement to an award of damages for as breach of a Charter right.

(2). The Charter does not displace a person's right to seek any remedy in respect of an act or decision of a public authority, including a right to seek judicial review, a declaration of unlawfulness and associated relief including an injunction, a stay of proceedings or exclusion of evidence.

A person is not entitled to be awarded any damages because of a breach of this Charter.

Note: The Charter does not create any independent cause of action or any independent forms of relief.

Part 4—Victorian Equal Opportunity and Human Rights Commission

Intervention by Commission

[40]. Establishes the Commission's unqualified right to intervene and be joined as a party in proceedings involving the Charter.

Functions, powers and reports of the Commission

[41]. Outlines the functions of the Victorian Equal Opportunity and Human Rights Commission under the Charter. [42]. Grants the Commission a general power to perform its functions. [43]. Provides for reports of the Commission to be laid before Parliament.

Part 5—General

Review of Charter after 4 year of operation

[44]. Establishes an obligation on the Attorney-General to cause a review to be undertaken of the first 4 years of operation of the Charter. It obliges the Attorney-General to cause a report of the review to be presented to Parliament on or before 1 October 2011. The clause lists the matters to be considered in the Attorney-General's review including the possible inclusion of additional human rights contained in a number of International Conventions.

Review of Charter after 8 years of operation

[45]. Establishes an obligation on the Attorney-General to cause a review to be undertaken of the 5th to 8th years of operation of the Charter. It obliges the Attorney-General to cause a report of the review to be presented to Parliament by 1 October 2015.

Regulations

[46]. Empowers the Governor in Council to make regulations under the Charter.

Consequential amendments

[47]. Makes consequential amendments to a number of Acts listed in the Schedule to the Charter including the following Acts —

• The Parliamentary Committees Act 2003 to confer an additional term of reference on the Scrutiny of Acts and Regulations Committee (new section 17(a)(viii)) to consider whether a provision in a Bill is incompatible with the human rights set out in the Charter.

• The Subordinate Legislation Act 1994 to require a human rights certificate to be prepared by the responsible Minister in respect of all proposed statutory rules. The required content of a human rights certificate is outlined in the amendment provisions and an exemption is provided for certain statutory rules, such as court rules. The amendments also confer an additional term of reference on the Scrutiny of Acts and Regulations Committee (new section 21(1)(ha)) to consider whether a provision in a statutory rule is incompatible with the human rights set out in the Charter.

Laws concerning abortion and child destruction not affected by Charter

[48]. Declares that the Charter does not affect any law applicable to abortion or child destruction, whether before or after the commencement of Part 2.

Note: This encompasses both statute law and any common law interpretation of statute law.

Transitional provisions

[49]. Establishes that the Charter applies to all Victorian Acts and subordinate instruments regardless of when they commenced. The Charter does not apply to any legal proceedings commenced before 1 January 2008. The obligations on public authorities in the Charter do not apply to any act or decision made by a public authority before 1 January 2008.

The Committee makes no further comment.

Energy Legislation (Miscellaneous Amendments Bill

Introduced: 2 May 2006
Second Reading Speech: 4 May 2006
House: Legislative Assembly
Minister introducing Bill: Hon. John Brumby MLA
Portfolio responsibiliy: Treasurer

Purpose

This Bill –

• repeals the provisions of the Electricity Industry Act 2000 which relate to the conferral of power on the Australian Competition and Consumer Commission in relation to the pricing of electricity transmission networks;

• amends the provisions of the Electricity Industry Act 2000 and the Gas Industry Act 2001 relating to the supplier of last resort schemes;

• amends the Gas Safety Act 1997 to improve its operation; and

• amends the Local Government Act 1989 to define a public authority as including certain private entities.

Content and Committee comment

[Clauses]

[2]. Other than section 11 the provisions in the Bill come into operation on Royal Assent. Section 11 will come into operation on the day that section 213 of the Pipelines Act 2005.

Note: Section 213 of the Pipelines Act 2005 repeals the Pipelines Act 1967 and a forced commencement of 1 July 2007 is provided for the new Act to come into force.

[6]. Amends section 71B of the Gas Safety Act 1997 to extend the offence of fixing of false or misleading labels to gas appliances to now cover principal and agent.

[7]. Amends section 99 of the Gas Safety Act 1997 to enable an inspector to exercise necessary powers for the purpose of determining compliance with the Act or the regulations. It is an offence to refuse or fail, without reasonable excuse, to comply with an inspector's reasonably necessary requirements for the purposes of determining compliance with the Act or regulations.

Note: Section 102 of the Gas Safety Act 1997 provides for the privilege against self-incrimination.

[11]. Amends the Local Government Act 1989 with a reference to a holder of a licence to construct and operate a pipeline under the Pipelines Act 2005.

The Committee makes no further comment.

Infringements (Consequential and Other Amendments) Bill

Introduced: 2 May 2006
Second Reading Speech: 4 May 2006
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibiliy: Attorney-General

Purpose

The Bill makes consequential amendments necessary as a result of the passage of the Infringements Act 2006 (the ‘Act’).

The Committee notes these extracts from the Second Reading Speech –

The introduction of a new overarching infringements system requires numerous consequential amendments to around 60 other pieces of existing legislation to refer to the new Infringements Act and to repeal or amend provisions which would otherwise have been redundant or inconsistent under the new system.

Acts which are more extensively amended include the Road Safety Act 1986, the Marine Act 1988 and the Transport Act 1983. Remaining consequential amendments are included in a schedule to the Bill.

The Bill also includes a schedule of transitional and savings provisions which will allow for the orderly transition from the existing system to the new system on 1 July 2006 when the Infringements Act commences operation.

In addition, the Bill amends the Infringements Act to incorporate minor technical amendments to correct typographical, cross-referencing and consistency errors.

Amendments to the Liquor Control Reform Act 1998 have been included in the Bill which allow for two existing offences to be enforceable by infringement notice.

…

Finally, the Bill encompasses a number of amendments to the Infringements Act, which involve minor changes of policy. In summary, these amendments provide for-

• the extension of the front end protections contained in Parts 1, 2 and 3 of the Infringements Act as well as the majority of the provisions of Part 13 of the Act regarding service to local laws and children and young persons;

• clarification of the extent to which the Magistrate’s Court needs to consider the definition of special circumstances contained in the Act by expressly providing that the infringements registrars and the court are not bound by the Act's definition of special circumstances in hearings for revocation of enforcements orders or in considering the substantive infringement offence upon a referral of it to the court following a failed internal agency review or revocation hearing;

• improved provisions to allow for prosecution of breaches of community work permits issued under the Act;

• amendments to the provisions relating to the Sheriff's powers to direct VicRoads not to renew motor vehicle registration and not to transfer registration to close potential loopholes which would undermine the intended effectiveness of the provisions;

• a new provision to allow for the service of interstate warrants under the Commonwealth's Service and Execution of Process Act;

• inclusion of 'return to sender' provisions deeming infringement notices posted to the address given by the offender to VicRoads or to a public transport enforcement officer to be validly served even if returned to the issuing agency and marked 'return to sender'. The effect of the amendment will be that the enforcement of an infringement notice will be able to continue in the event that a person opportunistically returns an infringement notice in the hope of avoiding paying his or her fine. The Infringements Act already contains a safety net, so that persons who are genuinely unaware that an infringement notice has been issued against them can apply to the Magistrates Court to have the infringement withdrawn; and

• inclusion of a deemed service provision in response to concerns that there is a lack of clarity as the actual date when service by post is effected.

Content and Committee comment

[Clauses]

[2]. Sections 1 to 3 commence on the day after Royal Assent. Section 53 makes a number of minor technical amendments to other Acts and is retrospective to 11 April 2006 being the date of Royal Assent of the Infringements Act 2006. The remaining provisions commence on proclamation but not later than by 1 July 2007.

Note: The Second Reading Speech states that the Infringements Act 2006 will commence operation on 1 July 2006 .

[9]. Substitutes a new section 13 of the Act, to provide that an infringement notice must make specific reference to a child's right to have the matter dealt with by the Children's Court.

[16]. Amends sections 24, 25 and 26 of the Act, which provides for internal review by an enforcement agency and clarifies that an enforcement agency is obliged to serve on the applicant written notice of the outcome of an application for internal review.

[19]. Amends section 30 of the Act, which provides that a person served with a penalty reminder notice may elect to have the matter heard and determined in the Court, and outlines a procedure for the exercise of that right. The amendment ensures that a child may have an infringement order dealt with by the Children’s Court.

[89]. Inserts a new clause 36 into Schedule 8 to the Magistrates' Court Act 1989 to ensure that documentation served by post under Schedule 7 to that Act prior to its repeal and which was returned to sender is taken to have been validly served despite that return.

[91]. Amends the Bail Act 1977 to provide for the bailing of persons arrested under the Act unless the person can be brought before a court within 24 hours or the Act otherwise provides.

[94]. Provides for Acts listed in the Schedule to be amended as set out in the Schedule.

The Committee makes no further comment.

Justice Legislation (Further Miscellaneous Amendments) Bill

Introduced: 2 May 2006
Second Reading Speech: 4 May 2006
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibiliy: Attorney-General

Purpose

The Bill makes miscellaneous amendments to the —

• Crimes Act 1958 to -

• allow a court to order a forensic sample be taken from a person found to be not guilty because of mental impairment; and

• enable recordings of various matters, where required under the Act to also be made in digital form.

• Crimes (Sexual Offences) Act 2006;

• Major Crime Legislation (Office of Police Integrity) Act 2004;

• Surveillance Devices (Amendment) Act 2004;

• Working with Children Act 2005.

Submissions

The Committee received a written submission form the Victorian Privacy Commissioner concerning the amendments made by the Bill to the Working with Children Act 2005.

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill come into operation on 30 June 2006.

Crimes Act 1958

[3]. Amends section 464(2) of the Act by adding to the definition of "suspects index" a reference to DNA profiles derived from forensic material taken under new section 464ZFAAA from persons found not guilty because of mental impairment.

[8]. Amends section 464ZE which provides that evidence obtained from a forensic procedure conducted on a person is inadmissible in a prosecution of that person unless various procedural safeguards have been observed. That section will now include a reference to new section 464ZFAAA (see below).

[9]. Inserts new section 464ZFAAA to provide that a police member may apply to a court for an order directing a person to undergo a forensic procedure where that person has been found not guilty because of mental impairment of a forensic sample offence or conspiring, inciting or attempting to commit a forensic sample offence.

[10]. Amends section 464ZFA(1) to include a failure of a person to attend a hearing of an application under new section 464ZFAAA(2) (see above) as a basis on which a court may issue a warrant authorising the arrest and bringing before the court of the person for the hearing of the application.

It also amends section 464ZFA(1A) to enable a police member to apply for a warrant under section 464ZFA(1B) (see note below) where the subject of an order under new section 464ZFAAA(2) has failed to attend at the place or within the time specified under new section 464ZFAAA(9) to undergo a forensic procedure.

[11]. Amends section 464ZFB inserting sub-sections (1A) and (1B) to provide that a police member may apply to a court for an order permitting the retention of a sample previously taken from a person (as a suspect), who is subsequently found not guilty because of mental impairment in relation to specified offences. Sub-section (1B) provides that an application under sub-section (1A) cannot be made in respect of an offence tried summarily.

[14]. Amends section 464ZG(3)(b) to provide that where a person has been found not guilty because of mental impairment, the Chief Commissioner of Police is not obliged to destroy, or cause to be destroyed, any forensic sample taken from the person and any related material and information.

[17]. Makes consequential amendments to Subdivision 30A (Custody and Investigation procedures) to enable recordings to be made in the form of audio recording or audiovisual recording. In effect the amendments allow for the use of digital technology in the recording of certain investigations.

[18]. Is a transitional provision making it clear that the amendments made to the Act by this Bill only apply to a finding of not guilty because of mental impairment or a recording made (as the case may be) after the commencement of the provisions in the Bill.

Other Acts

[21]. Amends the Surveillance Devices (Amendment) Act 2004. This, and the following, clause amend the regime for monitoring and reporting on the use of surveillance devices to make the Special Investigations Monitor (the SIM) responsible for monitoring the use of surveillance devices by all Victorian law enforcement agencies; and reflect the reporting arrangements on the use of surveillance devices by the Australian Crime Commission under Victorian law, which are set out in the Surveillance Devices Act 2004 (Cth).

The amendments transfer responsibility for inspecting surveillance device related records of law enforcement agencies from the relevant Ombudsman to the SIM.

[22]. Amends section 13 of the Surveillance Devices (Amendment) Act 2004 by inserting a new proposed section 30R in the Surveillance Devices Act 1999 which requires the Minister to table in both Houses of Parliament, within 14 sitting days of receipt, any report from the Commonwealth Ombudsman on the Australian Crime Commission's use of surveillance devices under Victorian law that is forwarded to the Minister by the Commonwealth Minister under section 61(3) of the Surveillance Devices Act 2004 (Cth). If such a report is received prior to the commencement of this Bill, the Minister is required to table the report within 14 sitting days after the commencement of that Act.

[23]. Amends section 10 of the Working with Children Act 2005 to require that the application form for a working with children check must be in the form approved by the Secretary to the Department of Justice, rather than as prescribed in regulations. The new section 10(2A) sets out the particulars that the approved form must contain including a provision for any other information in relation to the application that the Secretary reasonably believes is appropriate.

The Committee makes no further comment.

Planning and Environment (Growth Areas Authority) Bill

Introduced: 2 May 2006
Second Reading Speech: 4 May 2006
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Minister responsible: Hon. MLC
Portfolio responsibiliy: Minister for Planning

Purpose

The Bill amends the Planning and Environment Act 1987 (the ‘Act’) to establish the Growth Areas Authority (the ‘Authority’).

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill commence on proclamation but not later than by 1 November 2006.

[5]. Inserts a new Part 3AAB (new sections 46AN to 46AZF) into the Act to establish the Authority as a body corporate and sets out its objectives, membership, powers and functions.

The Authority’s functions include the making of recommendations and reports to the Minister on planning, use, development and protection of land in growth areas. The objectives of the Authority include the promotion of coordinated and timely development; provision of infrastructure; services; and facilities in growth areas.

New sections 46AO and 46AP respectively define what is a ‘growth area’ and lists the ‘growth area councils’ to which the Act (as amended) will apply.

The Minister may give written directions to the Authority regarding the exercise of its functions and powers, with which it must comply. The Authority may with the approval of the Minister appoint a Chief Executive Officer and sets out the terms and conditions of his or her appointment. The Authority may employ staff.

Proposed section 46AZD provides that the Authority may delegate certain functions and powers to the Chief Executive Officer (CEO) of the Authority other than the power of delegation.

There is a prohibition on the release of certain confidential information held by the Authority.

[7 to 9]. Amends certain delegation powers in the Act as a consequence of the creation of the new Authority. In each instance these are confined to delegations from either the Minister or planning authority to either the Authority or the CEO of the Authority.

The Committee makes no further comment.

Primary Industries Acts (Miscellaneous Amendments) Bill

Introduced: 2 May 2006
Second Reading Speech: 4 May 2006
House: Legislative Assembly
Minister introducing Bill: Hon. Bob Cameron MLA
Portfolio responsibiliy: Minister for Agriculture

Purpose

The Bill amends the Fisheries Act 1995 to make further provision for arrangements between the State and the Commonwealth for the management of offshore fisheries; and make further provision for regulation-making powers.

The Bill also amends the Meat Industry Act 1993 to make further provision for the sale of pet food.

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill come into operation on the day after Royal Assent.

[4]. Inserts new sections 19(1A), 19(3A), 19(3B) and 19(3C) into the Fisheries Act 1995 and amends section 19(2) of that Act. The amendments mirror recent amendments to the Fisheries Management Act 1991 (Cth) relating to arrangements between Victoria and the Commonwealth for the management of certain offshore fisheries (offshore fisheries arrangements). The Commonwealth Act and provisions under Part 2 of the Victorian Act provide the legal and administrative basis to make offshore fisheries arrangements.

[6]. Inserts new sections 37A(2) and 37A(3) into the Meat Industry Act 1993 to permit the sale of pre-packaged pet food containing meat in retail butcher shops in Victoria. The sale of non-processed pet meat is not permitted.

The Committee makes no further comment.

Transfer of Land (Alpine Resorts) Bill

Introduced: 2 May 2006
Second Reading Speech: 4 May 2006
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Minister responsible: Hon. John Thwaites MLA
Portfolio responsibiliy: Minister for Environment

Purpose

The Bill amends the Transfer of Land Act 1958 to include new leasing provisions and also to amend the Alpine Resorts (Management) Act 1997 to add to the leasing and licensing powers of the Alpine Resort Management Boards (the Board).

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill come into operation on the day after Royal Assent.

[3 to 9]. Amends the Transfer of Land Act 1958 in respect to Crown leases.

[11 and 12]. Inserts new sections 7A and 8A into the Alpine Resorts (Management) Act 1997 to allow the Board to grant a lease or licence for a stratum of land when it is exercising its powers under section 7 and section 8 of that Act. The Board must consult the Minister administering the Planning and Environment Act 1987 before such a lease or licence may be granted.

The Committee makes no further comment.

Victorian Urban Development Authority (Amendment) Bill

Introduced: 2 May 2006
Second Reading Speech: 4 May 2006
House: Legislative Assembly
Minister introducing Bill: Hon. John Brumby MLA
Portfolio responsibiliy: Minister for State and Regional Development

Purpose

The Bill amends the Victorian Urban Development Authority Act 2003 (the ‘Act’) by inserting new provisions to provide additional options for the exercise of charging powers to recover a portion of Government investment in declared projects under the Act.

The Bill enables the Victorian Urban Development Authority (the ‘Authority’) to levy a charge selectively at the time of development, rather than universally as a flat charge levied on all properties within a declared project area (a ‘general charge’). It also enables a charge levied at the time of development to be calculated as a percentage of the development value. These charges are known as ‘infrastructure recovery charges’ and are to apply to developments of a commercial nature.

The Bill also makes minor changes to improve the operation of the Act, by amending the land compensation provisions for consistency with the Land Acquisition and Compensation Act 1986.

The Bill inserts new objection and appeal procedures applicable to charges levied under the new Division 5A and amends the existing power of the Authority to levy charges, so that those charges may also now vary according to the relative distance of the property from a service or facility.

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill come into operation on proclamation but not later than by 1 September 2006.

[5]. Substitutes a new sub-section (3) into section 42 in the Act to provide that, in determining the amount of compensation to be paid for the compulsory acquisition of land in a declared project area by the Authority, no allowance is to be made for any decrease or increase in the value of the land attributable to the declared project. This provision is consistent with a similar provision in section 43(1)(a) of the Land Acquisition and Compensation Act 1986.

[7]. Inserts new Division 5A into Part 3 of the Act and sets out the charging regime based on the existing charging regime ("general charges") but provides greater detail as to the mechanics of those charges and introduces the option of development-based charges ("infrastructure recovery charges").

New section 51A provides for certain classes of subdivision of land and building work to be exempt from the levying of charges on development under Division 5A and new section 51B provides for indexation (in line with the Consumer Price Index) of the threshold amount for the purpose of section 51A.

New section 51F provides that, with the prior approval of the Governor in Council, the Authority may, by resolution, levy general charges on owners, occupiers or licensees of properties in a project area. An approval may only be given on the recommendation of the Minister made with the approval of the Treasurer.

New section 51M provides that, with the prior approval of the Governor in Council, the Authority may, by resolution, levy infrastructure recovery charges on owners of properties in the project area. An approval may only be given on the recommendation of the Minister made with the approval of the Treasurer and new section 51N provides that an infrastructure recovery charge is to be based on a percentage of the development value of the development of a property and is capped at 10% (s.51O).

New section 51Z provides that the Authority may waive a charge in whole or in part on the approval of the Minister and the Treasurer.

New section 51ZG provides that a person may object in writing to the Authority to the levying of a general charge on any of the grounds set out in the Act (s.51ZI(1) ) and new section 51ZH provides that a person may object in writing to the Authority to the levying of an infrastructure recovery charge on any of the grounds set out in section 51ZI.

New section 51ZO sets out the circumstances enabling an application to be made to the Victorian Civil and Administrative Tribunal (VCAT) for review under Division 5A.

New section 51ZP sets out the procedure for enabling an appeal to the Supreme Court in respect of an objection.

The Committee makes no further comment.

Scrutiny of Acts and Regulations Committee
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