Scrutiny of Acts and Regulations Committee

Alert Digest No 15 of 2008

Tuesday, 2 December 2008

[Table of Contents]

Major Crime Legislation Amendment Bill 2008

Introduced: 11 November 2008
Second Reading Speech: 12 November 2008
House: Legislative Assembly
Member introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

The Bill amends the Major Crime (Investigative Powers) Act 2004 (the ‘Act’) to –

1. Extend the definition of 'organised crime offence' to ensure that serious and organised crime involving the abuse of children and paedophilia networks are captured as relevant offences for the purpose of the coercive questioning powers under the Act. (Refer to the Charter Report below).

Note: ‘organised crime’ as amended (underlined) by the Bill is to be defined as an indictable offence against a law of Victoria punishable by level 5 imprisonment (10 years or more) that (a) involves 2 or more offenders; and (b) involves substantial planning and organisation; and (c) forms part of systemic and continuing criminal activity; and (d) has a purpose of obtaining profit, gain, power or influence or of sexual gratification where the victim is a child.

2. Establish new procedures for the court to follow in hearing an application for the revocation of a coercive powers order. The procedures are based upon those found in the Police Integrity Act 2008 for the determination of objections by protected persons, such as the Director, Police Integrity, to a subpoena issued during the course of criminal proceedings for the production of documents or other things that have come into the possession of protected persons in the performance of functions under that Act. Where a person makes an application to the Court the amendments prescribe procedures within which the Court may determine the matter, by way of confidential affidavit, in a closed court, or at a hearing in the absence of one or more of the parties. The Court may also appoint a special counsel to represent the interests of an absent party. (Refer to the Charter Report below).

3. Require the Court or the Chief Examiner to give a notice causing the confidentiality notice (confidentiality of a witness summons and orders) to cease effect where the basis upon which the original confidentiality notice was given no longer applies and provide for confidentiality notices to cease effect after five years but to also allow the Chief Examiner and the Chief Commissioner to apply to the Supreme Court for an extension of the five-year period if an extension is necessary to protect a continuing investigation, any proceedings that have commenced but are not yet finalised, the safety or reputation of a person or the fair trial of a person.

4. Clarifies that the Chief Commissioner, the Chief Examiner and a witness whose interests are affected by a direction of the Chief Examiner restricting publication or communication of evidence or other information the opportunity to make submissions to a court when the court is considering whether or not to release the restricted evidence or other information to a defendant in criminal proceedings or to that person's legal representative.

5. Clarify that, for the purposes of the Act, 'police station' means any police premises where a counter inquiry service for the public is provided. Note: Section 30(2) provides that for the purposes of the Chief Examiner coercive powers prescribed under the Act an examination in relation to an organised crime offence must not be conducted at a police gaol.

6. Give the Supreme and County courts jurisdiction to determine any dispute regarding legal professional privilege that arises during an examination hearing. In accordance with the recommendation of the Special Investigations Monitor (the ‘SIM’) the Magistrates’ Court will no longer determine these matters.

7. Provide a new definition of 'member of police personnel’ to include public servants employed by the Chief Commissioner and contractors engaged by the Chief Commissioner, to clarify that such persons may provide assistance to the Chief Examiner's office and are also subject to the confidentiality provisions under the Act.

Note: In respect to the amendments made by this Bill to the Act section 62 of the Act required the SIM to report to the Parliament within three years after of the commencement of the Act on the need for the Act and the adequacy of the performance of the Chief Examiner, Examiners and members of the police force of functions and powers under the Act.

Surveillance Devices Act 1999

8. The Bill amends the Act to clarify that civilians can provide assistance or technical expertise to the law enforcement officer who is primarily responsible for a surveillance devices warrant.

Casino Control Act 1991 and the Racing Act 1958

9. The Bill amends both these Acts to establish a process that the court can apply where a person challenges an order made by the Chief Commissioner excluding that person from attending or remaining at the casino or a racecourse. The process is similar to the legislative scheme applying in respect to the amendments made to the Major Crimes Act (see paragraph 2 above).

Content and Committee comment

[Clauses]

Commencement more than 12 months after introduction

[2]. Part 2 of the Bill, regarding amendments to the Major Crime (Investigative Powers) Act 2004, will commence on proclamation but not later than by 1 February 2010.

Note: From the explanatory memorandum – The default commencement date of 1 February 2010 is provided to ensure that there is a sufficient amount of time available for the implementation of the new provisions of the Major Crime (Investigative Powers) Act 2004. The period will be less than 12 months from the date that the Bill receives Royal Assent.

Extension of definition of ‘organised crime’

[3]. Inserts two new definitions into the Act and amends the existing definition of organised crime offence.

The definition of organised crime offence in the Act is amended to make it clear that an indictable offence that is punishable by level 5 (10 years maximum) imprisonment or more and that has a purpose of obtaining sexual gratification where the victim is a child is an organised crime offence. (Refer to the Charter Report below).

Note: Such an offence must satisfy other existing criteria in the definition, which are, the offence must involve 2 or more offenders, involve substantial planning and organisation and must form part of systemic and continuing criminal activity. The purpose of obtaining sexual gratification where the victim is a child is in addition to the other available purposes in the definition—of obtaining profit, gain, power or influence.

Revocation procedure for coercive powers and exclusion orders

[4, 14 and 15]. Make provision for a process and procedure for the revocation of coercive powers under the Major Crime (Investigative Powers) Act 2004 and in relation to applications for a review of exclusion orders under the Casino Control Act 1991 and the Racing Act 1958. (Refer to the Charter Report below).

Charter Report

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

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

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

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

The Committee is concerned that the Statement of Compatibility does not address the compatibility or otherwise of clause 3(2)’s extension of the coercive powers scheme with human rights. In its Alert Digest No 9 of 2004, the Committee identified numerous concerns about the (then) Bill creating the scheme under its ‘trespasses unduly on rights and freedoms’ term of reference. Some of these concerns, notably those relating to privacy and self-incrimination, obviously also engage rights under the Charter, e.g. Charter ss. 13(a), 24 and 25(2)(k). Indeed, the compatibility of aspects of the existing scheme with the Charter is currently being litigated in the Supreme Court.[1]

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

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

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

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

The Committee notes that clauses 4[2], 14[3] and 15[4], providing for the revocation or review of certain orders in the Supreme Court, contain procedures that apply when the Chief Commissioner ‘objects to the disclosure or production of protected information at the hearing of the application’. Of the four options available to the Supreme Court in such a circumstance, three of them involve the Supreme Court potentially determining the proceedings on the basis of information that is not revealed to the applicant or his or her legal representative, either because ‘a confidential affidavit… is not disclosed to one or more of the parties or any representative of those parties’ or because the application is determined ‘at a hearing held without notice to, and without the presence of, one or more of the parties, or any representative of those parties’.

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

The Committee therefore considers that clauses 4, 14 and 15 may limit such applicants’ Charter right to have civil proceedings determined after a fair hearing.[5] To the extent that they hinder the effective review of orders made against applicants, they may also engage Charter rights affected by those orders, such as the many rights limited by coercive powers orders made under the Major Crimes (Investigative Powers) Act 2004. The Committee observes that clause 4 was not recommended by the Special Investigations Monitor in his report on the coercive powers regime.[6]

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

The Statement of Compatibility remarks:

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

The Committee is concerned that, in some cases, the information at issue may be both too sensitive to reveal to the applicant and too crucial to consider fairly without the applicant’s personal input. The special counsel procedure cannot always resolve this problem, because counsel is barred from taking instructions from the applicant once the information is disclosed. In such circumstances, the provisions may require the court to resolve the matter without a fair hearing. Last year, the House of Lords held that a similar regime would be incompatible with the right to a fair hearing, unless the court had additional powers, on fairness grounds alone, to either disclose the information to the applicant or to resolve the matter in the applicant’s favour.[8]

The Statement of Compatibility also remarks:

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

The Committee notes the following regimes from other jurisdictions:

• The National Security Information (Civil and Criminal Proceedings) Act 2004 (Cth), which governs all federal matters (including the making of control orders in relation to suspected terrorist acts) provides for ex parte procedures for the redaction or summarising of protected documents. However, substantive proceedings are determined solely on the basis of information that is released to all the parties.[9]

• Canada’s Security Intelligence Review Committee, which first developed the special counsel procedure in the context of deportation proceedings, requires the special counsel to negotiate a statement of the ‘gist’ of the evidence contained in the confidential document, which is immediately handed to the excluded party and his or her lawyer to facilitate vigorous advocacy about the protected evidence.[10]

• The Prevention of Terrorism Act 2005 (UK) requires the court to consider requiring the state to provide a summary of the protected information to the subject of the order and, in the event the summary isn’t provided, to withdraw the protected information from its consideration.[11] As interpreted by the House of Lords, the legislation also empowers the courts to either disclose any information or to quash the control order if doing so is necessary to protect that party’s right to a fair hearing.[12]

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

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

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

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

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

The Committee makes no further comment.

Relationships Amendment (Caring Relationships) Bill 2008

Introduced: 11 November 2008
Second Reading Speech: 12 November 2008
House: Legislative Assembly
Member introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

The Bill amends the Relationships Act 2008 (the ‘Act’) to provide for the registration of caring relationships on the Relationships Register (the Register) established under the Act and provides for the adjustment of property interests between partners who are in, or have been in, a registered caring relationship and further provides for rights to maintenance of partners who are in, or have been in, a registered caring relationship (see definition at clause 3 below).

Background

1. The Act establishes a Register for the registration of domestic relationships in Victoria and provides a single location for statutory requirements governing property matters in the event of a breakdown of a domestic relationship whether registered or not.

2. The purpose of the Register is to allow people to register one relationship, their primary relationship, which will be recognised as such for the purposes of Victorian law. Registration of a caring relationship will provide conclusive proof of the relationship where caring relationships are recognised under Victorian law.

3. Caring partners may be related by family, must be over 18 years of age, must both be domiciled or ordinarily resident in Victoria, and must not be married, already in a registered relationship or in another relationship that could be registered in Victoria.

4. The partners in the caring relationship may provide each other with personal or financial support of a domestic nature but not on a commercial for fee or profit basis.

5. Unlike registered domestic relationships caring partners applying for registration must seek prior independent legal advice concerning the legal consequences of registration.

6. As with domestic relationships the Bill allows partners in registered caring relationships that have broken down to apply to a court for the adjustment of interests in the property of the relationship and for maintenance, and permits partners in a caring relationship to enter into relationship agreements.

7. For the purposes of the property and maintenance jurisdiction under the Act only partners who have registered their caring relationship will be captured by the Act.

8. The rights and obligation covered by caring relationship registration under the Act will not give entitlements to reversionary pensions under superannuation and judicial pension schemes.

9. The Bill also makes consequential amendments to a number of Acts to clarify that those Acts, while applying to partners in domestic relationships, do not apply to partners in caring relationships.

Note: By clause 8 of the Bill a registrable caring relationship means a relationship,(other than a registered relationship), between two adults who are not a couple or married to each other and who may be related. It is a relationship where one or each of the partners provides personal or financial commitment and support of a domestic nature for the material benefit of the other. Partners in a registrable caring relationship do not necessarily have to be living together. However, a registrable caring relationship does not include a relationship in which a person simply provides domestic support and personal care to the other person for fee or reward, such as on a commercial or for profit basis. The amended Act will therefore contain two separate definitions that of a registrable domestic relationship and for ‘registrable caring relationship’.

Charter Report

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

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

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

• ‘not married or in a registered relationship’; and

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

In short, only single people can register a caring relationship. The Committee therefore considers that clause 9(2) engages the Charter’s equality rights, by denying legal benefits on the basis of ‘marital status’.[13]

The Statement of Compatibility remarks:

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

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

The Committee therefore considers that clause 9(2) may limit the Charter’s right to ‘equal enjoyment of human rights’ and to ‘equal protection of the law without discrimination’ on the basis of marital status. [14]

The Statement of Compatibility also remarks:

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

The Committee observes that the purpose of allowing only allowing the registration of a ‘primary’ relationship appears merely to re-state the scheme’s exclusion of married and partnered people. The statement that a broader scheme would be unworkable in not explained. The Committee therefore considers that the statement of compatibility does not appear to provide a demonstrable justification for any limitation on the Charter’s equality rights, according to the test in Charter s. 7(2).[15]

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

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

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

2. If so, whether or not clause 9(2) is a demonstrably justified limit on the Charter’s equality rights according to the test set out in Charter s. 7(2).

The Committee makes no further comment.

Scrutiny of Acts and Regulations Committee
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