Scrutiny of Acts and Regulations Committee

Alert Digest No 1 of 2008

Tuesday, 5 February 2008

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Constitution Amendment (Judicial Pensions) Bill 2007

Introduced: 4 December 2007
Second Reading Speech: 6 December 2007
House: Legislative Assembly
Member introducing Bill Hon. Rob Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

The Bill facilitates the division of constitutionally protected pension entitlements in divorce property proceedings and extends entitlement to a reversionary pension to de facto and same-sex partners of judicial and other constitutionally protected officers and their children.

The Bill therefore amends the –

Attorney-General and Solicitor-General Act 1972
Constitution Act 1975
County Court Act 1958
Magistrates’ Court Act 1989
Public Prosecutions Act 1994
Supreme Court Act 1986

The Committee notes these extracts from the Second Reading Speech –

Since the introduction of the Family Law Legislation Amendment (Superannuation) Act 2001 (Cth), superannuation entitlements have been divisible in divorce property proceedings by agreement or court order.

…

Consistent with the government’s approach to other defined benefit superannuation schemes, this Bill adopts the ‘separate interest’ method of splitting superannuation entitlements in divorce property proceedings for Victorian constitutionally protected officers.

…

This Bill replaces the terms ‘spouse’ and ‘widow’ with the term ‘partner’ throughout the governing Acts. ‘Partner’ will be defined to include married, de facto and same-sex partners, in the same way as it has been defined in the State Superannuation Act 1988 and the Parliamentary Salaries and Superannuation Act 1968. It will also include partners in ‘registered relationships’ as defined in the Relationships Bill 2007, if passed by Parliament. In doing so de facto and same-sex partners of judicial and other constitutionally protected officers will be entitled to a reversionary pension under the schemes for the first time.

Submission received

The Committee received a written submission from the Victorian Gay and Lesbian Lobby.

Content and Committee comment

[Clauses]

[2]. Other than Part 6 the Bill will commence on Royal Assent. Part 6 will commence on the day on which section 73 of the Relationships Act 2007 comes into operation.

Note: Section 73 of the Relationships Act 2007 will, if passed by Parliament, commence on 1 December 2008 or on a day or days to be proclaimed.

[5]. Inserts new subsection (5A) in section 7A of the Constitution Act 1975 to apply amended section 83 (see clause 8) to the pension entitlements of the Governor, to enable the benefit or pension entitlements of the Governor to be divided according to the separate interest method in divorce property proceedings under the Commonwealth family law.

[6]. Substitutes references to “spouse” with “partner” in sections of the Constitution Act 1975 which relate to the pensions of Supreme Court judges. These amendments extend entitlement to a reversionary pension to a de facto or same-sex partner of a Supreme Court judge and to their children.

[8]. Inserts new subsections (8) to (22) in section 83 of the Constitution Act 1975 necessary to enable benefit or pension entitlements of Supreme Court judges and the Director of Public Prosecutions to be divided in accordance with the separate interest method under the Commonwealth Family Law Act 1975 and Family Law (Superannuation) Regulations 2001 in divorce property proceedings.

[9 to 15]. Makes the relevant amendments to the County Court Act 1958 to give effect to the superannuation changes referred to in the extracts of the Second Reading Speech above for the Judges and Masters of the County Court.

[16 to 18]. Makes consequential amendments to the Supreme Court Act 1986 to give effect to the superannuation changes referred to in the extracts of the Second Reading Speech above for the Judges and Masters of the Supreme Court.

[19 to 21. Amend the other relevant Acts to extend the superannuation entitlements to other relevant judicial and statutory office holders.

[22 and 23]. Amend the Constitution Act 1975 and the Country Court Act 1958 as a consequence of the intended enactment of the Relationship Act 2007 (currently before the Parliament – also reported in this Digest).

[24]. Provides for the automatic repeal of this amending Act on 1 December 2009.

The Committee reports to Parliament pursuant to a term of reference provided in section 17(a)(i) of the Parliamentary Committees Act 2003, – ‘trespasses unduly on rights or freedoms’ – independence of the judiciary – separation of powers.

The Committee notes the submission made to it in considering this Bill and is concerned that the application of the amendments made by this Bill may arguably result in unequal or reduced pension rights to some persons who may be entitled to reversionary pensions.

The Committee observes that any diminution of rights whilst in office of members of the judiciary and other senior constitutionally protected officers may engage broader rights and freedoms issues concerning the independence of the judiciary and the doctrine of the separation of powers.

In respect to the possible diminution of rights the Committee refers to the Charter Report below and will seek further advice from the Attorney-General.

Charter Report

Keywords: Marital status discrimination – Sexual orientation discrimination – Pension for unmarried partners of former constitutional and judicial officers – Meaning of ‘partner’ – Retrospective entitlement limited to opposite sex partners – Incompatibility with human rights

Charter s. 8(3) provides that everyone has ‘the right to equal and effective protection against discrimination.’ Discrimination includes discrimination on the basis of martial status (including being a domestic partner) and sexual orientation. Charter s. 7(2) provides that human rights may be ‘subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society.’ Charter s. 32 requires the interpretation of statutory provisions compatibly with human rights ‘so far as it is possible to do so’.

The Committee notes that the Bill extends the pension entitlements of constitutional and judicial officers’ spouses and children to those officers’ ‘partner[s]’ and their children. The Committee also notes that clauses 3 (inserting a new section 5A into the Constitution Act 1975) and 9 (inserting a new section 3AA(1) into the County Court Act 1958) generally define ‘partner’ (in para. (b) of the definition) to mean an officer’s ‘spouse or domestic partner’. The Committee further notes that under clauses 22 and 23 (if the Relationships Bill 2007 is enacted), the definition of ‘domestic partner’ will include a person in a registered relationship with the officer.

The Statement of Compatibility remarks that the Bill’s amendments:

positively engage sections 8(2) and (3) of the charter. They remove discrimination on the basis of gender, marital status and sexual orientation and ensure that de facto and same-sex partners of Victorian constitutionally protected officers are afforded the same rights and entitlements as married spouses.

The Committee considers that the Bill generally promotes the Charter rights of domestic partners of constitutional and judicial officers against discrimination on the basis of marital status.

However, the Committee further notes that clauses 3 and 9 define ‘partner’ differently (in para. (a) of the definition) in the case of an officer ‘who became entitled to benefits under [the Constitution Act 1975 or the County Court Act 1958] before the commencement’ of those clauses. For such an officer, the pension entitlements previously available to the officer’s spouse and children will now be available to:

(i) the [officer]’s husband, wife, widower or widow; or

(ii) a person of the opposite sex who, though not married to the [officer], in the opinion of the Minister lives with the [officer], or lived with the [officer] at the date of the [officer’s] death, on a bona fide domestic basis as the [officer’s] husband or wife

and to such a person’s children.

The Committee observes that this definition extends entitlements to officers’ opposite-sex domestic partners and their children, but not their same-sex domestic partners and their children. The Committee considers that para. (a) of the definition of partner in clauses 3 and 9 therefore engages the Charter rights of those officers and their partners not to be discriminated against on the basis of their sexual orientation.

The Statement of Compatibility does not address para. (a) of the definition of partner in clauses 3 and 9, but the Explanatory Memorandum remarks that the definition ‘is consistent with that used in section 10 of the Parliamentary Salaries and Superannuation Act 1968.’ The Committee observes that that definition was introduced by the Statute Law Amendment (Relationships) Act 2001 at a time when opposite-sex domestic partners of members of parliament were entitled to a pension. By contrast, the present pension for constitutional and judicial officers is limited to married partners. Therefore, unlike s. 10 of the Parliamentary Salaries and Superannuation Act 1968, which did not change pension entitlements for former members of parliament, para. (a) of the definition of partner in clauses 3 and 9 changes the pension entitlements of former constitutional and judicial officers, making them identical to the pre-2001 entitlements of members of parliament.

The Committee also observes that the terms ‘husband, wife, widow or widower’, ‘person of the opposite sex’ and ‘as the person’s husband or wife’ contained in para (a)(i) are gender-specific words that may be less amenable to reinterpretation to include same-sex partners under Charter s. 32 than the gender-neutral word ‘spouse’ that para (a)(i) replaces: see Quilter v Attorney-General [1998] 1 NZLR 523, 580. The Committee further observes that whereas domestic partners of officers covered by para. (b) of the definition of partner in clauses 3 and 9 will (if the Relationships Bill 2007 is enacted) be able to prove their future entitlement to a pension (i.e. their status as a domestic partner of an officer when the officer dies) by registering their relationship with that officer, similarly-placed opposite-sex partners of officers covered by para. (a) will not be able to do so. The Committee additionally observes that the scope of para (a) is uncertain, as it is not clear whether or not the phrase ‘became entitled to benefits under this Act’ applies to officers who died in office (rather than retiring or resigning) or to current officers who are entitled to salaries under the Constitution Act 1975 or the County Court Act 1958.

Whilst the Committee considers that para. (a)(ii) of the definition of partner in clauses 3 and 9 promotes the rights of opposite-sex domestic partners of former constitutional and judicial officers to equal protection of the law without discrimination on the basis of marital status, it denies the same protection to equivalently placed same-sex domestic partners. The Committee notes that the Statement of Compatibility does not provide any justification that would satisfy the requirements of Charter s. 7(2) for excluding one group of domestic partners from protection simply on the basis of their sexual orientation.

The Committee considers that para. (a)(ii) of the definition of partner in clauses 3 and 9 may be incompatible with Charter s. 8(3).

The Committee resolves to seek further clarification from the Attorney-General as follows:

1. What officers are covered by para. (a) of the definition of partner in clauses 3 and 9? In particular:

a. If an officer died while in office, did he or she ever ‘become entitled’ to a benefit under the Act?

b. Does ‘benefit under the Act’ include a salary entitlement under the Act?

2. Why does para. (a)(i) of the definition of partner in clauses 3 and 9 use the terms ‘husband’, ‘wife’, ‘widower’ and ‘widow’ instead of the word ‘spouse’?

3. Should para. (a)(ii) of the definition of partner in clauses 3 and 9 be extended to include same-sex domestic relationships?

4. Should para. (a)(ii) of the definition of partner in clauses 3 and 9 be extended to include registered relationships (if the Relationships Bill 2007 is enacted)?

Pending the Attorney-General’s response, the Committee draws attention to para. (a) of the definition of partner in clauses 3 and 9.

Keywords: Independence of the courts – Marital status discrimination – Removal of existing pension entitlements for partners of constitutional and judicial officers where partner becomes a domestic partner of another person – Partner’s pension subject to continuing review

Charter s.8(3) provides that everyone has ‘the right to equal and effective protection against discrimination’. Discrimination includes discrimination on the basis of martial status (including the status of being a domestic partner.) Charter s. 24(1) provides that criminal defendants and civil litigants have the right to a decision by an ‘independent… court or tribunal.’ Charter s. 7(2) provides that human rights may be ‘subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society’.

The Committee notes that clauses 4(1)(b) & 6(2)(b) (amending ss. 7(3) & 83(2) of the Constitution Act 1975) & 10(2)(b) (amending s. 14(3) of the County Court Act 1958) provide that the pension entitlements of partners of constitutional and judicial officers cease when the partner dies, marries or ‘becomes the domestic partner of another person’. The Committee observes that this reduces officers’ pension entitlements, because the current law only provides for the partner pension to cease on death or remarriage. The Committee also observes that the pension entitlements of all partners of judicial and constitutional officers will now be subject to continued review as to whether or not their personal circumstances at any point in time fall within the definition of ‘becom[ing] the domestic partner of another person.’

The Committee observes that the Supreme Court of Canada held in R v Beauregard [1986] 2 SCR 56, [34] that:

the essence of judicial independence for superior court judges is complete freedom from arbitrary interference by both the executive and the legislature. Neither the executive nor the legislature can interfere with the financial security of superior court judges. That security is crucial to the very existence and preservation of judicial independence as we know it.

The Committee considers that clauses 6(2)(b) & 10(2)(b) may subject the financial security of Victorian superior court judges to interference by both the legislature (by reducing the existing pension entitlements of current and former judges’ partners) and the executive (by subjecting the future entitlement of judges’ partners to a pension to continued review by public servants responsible for determining their eligibility for the pension.) The Committee therefore considers that clauses 6(2)(b) & 10(2)(b) may engage Victorian litigants’ Charter right to decisions by an independent court.

The Committee also observes that entry into a new domestic relationship may have no impact on the financial circumstances of partners of deceased constitutional and judicial officers and that remaining single may impose considerable personal burdens on them. The Committee further observes that partners of members of state superannuation schemes receive their pension until death, whether or not they re-partner; however, the Committee also notes that those schemes are contributory and partner pensions are calculated in a more nuanced way than the pension schemes in the Constitution Act 1975 and County Court Act 1958. Whilst the Committee considers that clauses 4(1)(b), 6(2)(b) & 10(2)(b) may promote the Charter rights of former partners of constitutional and judicial officers who marry to equal treatment with former partners who enter into a domestic relationship, the Committee is also concerned that these clauses may infringe the rights of former partners who enter into a domestic relationship to equal treatment with former partners who remain single.

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

whether or not clauses 6(2)(b) and 10(2)(b), to the extent that they reduce the entitlements of current and former judges and/or subject the future entitlements of judges’ partners to continued review by a public servant, are compatible with the independence of courts from Parliament and the executive; and
whether or not clauses 4(1)(b), 6(2)(b) and 10(2)(b) discriminate against officers’ partners who enter into a new domestic relationship (in comparison to partners who do not re-partner);
whether or not those clauses are reasonable limits on human rights according to the test in Charter s. 7(2)

The Committee makes no further comment

Consumer Credit (Victoria) and Other Acts Amendment Bill 2007

Introduced: 4 December 2007
Second Reading Speech: 6 December 2007
House: Legislative Assembly
Member introducing Bill Hon. Tony Robinson MLA
Portfolio responsibility: Minister for Consumer Affairs

Purpose

The Bill amends the –

Consumer Credit (Victoria) Act 1995 in relation to the registration of credit providers and to allow certain proceedings under the Consumer Credit (Victoria) Code to be brought in a court rather than VCAT if the Director of Consumer Affairs Victoria so determines;
Credit (Administration) Act 1984 to empower the Director of Consumer Affairs Victoria to bring proceedings on behalf of consumers under the Consumer Credit (Victoria) Code and Division 5 of Part 4A of the Consumer Credit (Victoria) Act 1995;
Fair Trading Act 1999 to re-enact certain provisions of the Credit Reporting Act 1978 relating to the correction of errors in credit records and repeals the Credit Reporting Act 1978.
Residential Tenancies Act 1997 to provide that certain agreements are to be tenancy agreements even if the rental term exceeds 5 years if the tenant also has a right or option to purchase the rented premises;
Sale of Land Act 1962 to re-enact with amendments the provisions relating to terms contracts.

The Bill also makes amendments to other Acts in relation to owners corporations.

Content and Committee comment

[Clauses]

[2]. Other than sections 4 to 24 and Parts 5 and 6 the provisions in the Bill come into operation on Royal Assent. The remaining provision come into operation not later than by 1 July 2009.

The Committee notes the explanatory memorandum concerning the provisions that have delayed commencement.

Sections 4 to 24 will come into operation on a day or days to be proclaimed. These provisions insert the amendments in relation to the registration scheme for credit providers and new requirements for registered credit providers to be members of an external dispute resolution scheme. Their commencement is deferred in order to allow the Business Licensing Authority to make the necessary administrative changes to the current registration scheme for credit providers and for currently registered credit providers to become members of an approved external dispute resolution scheme.
Part 5 will come into operation on a day to be proclaimed in order for advice of the changes to be disseminated to legal drafters. Part 5 brings certain tenancy agreements, known as “rent-to-buy contracts”, under the operation of the Residential Tenancies Act 1997.
Part 6 will come into operation on a day to be proclaimed in order for the provisions to include consequential amendments which have been made in the Conveyancers Act 2006 and which has not yet come into operation. Part 6 re-enacts the terms contracts provisions in the Sale of Land Act 1962.

Consumer Credit (Victoria) Act 1995

[6]. Inserts new sections 12A and 12B into the Act to provide that a registered credit provider must not carry on business as a credit provider unless the credit provider is a member of an approved external dispute resolution scheme and sets out the requirements for a natural person or body corporate to be eligible for registration as a credit provider.

[9]. Inserts new sections 14A, 14B, 14C and 14D into the Act.

Section 14D provides that the Authority may refer the application to the Chief Commissioner of Police, who must make any inquiries in relation to the application that the Chief Commissioner considers appropriate and must give the Authority a report on the result of those inquires. A report may include recommendations.

[19]. Inserts a new section 35A to provide that any person whose interests are affected by a decision of the Authority under Part 4 of the Act may apply to the VCAT for a review of the decision.

Fair Trading Act 1999

[27]. Inserts a new Part 5A which re enacts certain provisions from the Credit Reporting Act 1978 (to be repealed by clause 39).

New section 93B provides that a consumer who disputes the accuracy or completeness in relation to the consumer of any information compiled by a credit reporting agent may serve a notice requesting the agent to correct the information.

Section 93C provides that where a credit reporting agent fails to make the amendment requested by the consumer or the consumer is not satisfied with the amendment, supplement or deletion, the consumer may apply to the Magistrates’ Court for an order requiring the credit reporting agent to make any or any further amendment, supplement or deletion from the information.

Section 93D provides that the Court may order a credit reporting agent to amend, supplement or delete any item of information concerning the consumer that the Court is satisfied is inaccurate, misleading or irrelevant to the purpose for which the information is kept or which should be amended, supplemented or deleted by reason of effluxion of time and to give any person to whom the agent has provided information with respect to the consumer, full particulars of the amendment, supplement or deletion. A credit reporting agent who does not comply with an order under new section 93D commits an offence and is liable to the penalty set out in the section.

Sale of Land Act 1962

[33]. Inserts a new Division 4 of Part I which re-enacts the terms contracts provisions and groups them together in one Division.

Section 29J re-enacts the current section 4(4) and provides for the consequences of a failure by the vendor, without lawful excuse, to comply with a notice served by the purchaser under section 29H. The vendor is deemed to have breached a condition of the terms contract and the purchaser is entitled to all civil remedies for that breach. The vendor is also guilty of an offence.

Section 29T re-enacts the current section 7(5) and sets out the consequences of a failure by the purchaser to comply with a notice under section 29Q without lawful excuse. The purchaser is deemed to have breached a condition of the contract and the vendor is entitled to all civil remedies for that breach. The purchaser is also guilty of an offence and subject to the penalty set out in the section.

The Committee notes that the provisions raise an issue concerning the presumption of innocence (see Charter Report). The Committee notes that in appropriate cases the establishment of a lawful excuse is a matter readily available to the defendant and in terms of giving efficacy to the proposed law may be considered a reasonable limitation to the presumption.

The Committee notes these extracts from the Statement of Compatibility –

The right to be presumed innocent reflects a fundamental common-law principle. However, the courts have recognised that the right may be subject to limits and have held that reverse onus provisions are more likely to be consistent with human rights if they require the accused to prove an exception, proviso or excuse rather than disprove an element of the offence; where the conduct regulated by the offence is generally unlawful; where the information required to exonerate the defendant is readily available to the defendant; and where the level of penalty is at the lower end of the scale.

The purpose of the limitation of the right is to provide the defendant with an opportunity to avoid liability for the offence in circumstances where the defendant has a lawful excuse for not complying with the notice served by the other party to the contract.

The onus of proving a lawful excuse creates an evidential rather than legal burden and only applies where a defendant seeks to rely upon the ability to raise a lawful excuse to the offence. Section 130 of the Magistrates' Court Act 1989 would apply on summary prosecution so that a defendant claiming he or she had a lawful excuse would have to adduce or point to evidence that suggests a reasonable possibility that the exception applies. That is, once the defendant presents or points to evidence of a lawful excuse, the onus returns to the prosecuting authority.

Further, the onus relates to matters that are within the knowledge of the defendant and not difficult for the defendant to establish.

[39]. Repeals the Credit Reporting Act 1978.

[40]. Repeals this Act on 1 July 2010.

Charter Report

Keywords: Reasonable limits on rights – Regulation of commercial conduct – Privacy – Presumption of innocence

Charter s. 7(2) provides that human rights may be ‘subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society’.

The Committee notes that the Bill’s subject-matter is the regulation of commercial conduct and the enforcement of that regulation. The Committee observes that such legislation inevitably engages a variety of human rights, but that reasonable provisions will typically satisfy Charter s. 7(2), as well as internal limits on particular rights.

The Statement of Compatibility identifies several provisions of the Bill that are said to engage the following Charter rights:

Privacy (Charter s. 13(a)): provisions requiring applicants for credit provider registration to supply certain information, including criminal history information (clause 7, amending s. 13 of the Consumer Credit (Victoria) Act 1995); permitting the Business Licensing Authority to demand certain information from applicants and credit providers (and to refuse or revoke registration if the demand is not met) (clauses 9 and 15, inserting new sections 14B & 24A into the Consumer Credit (Victoria) Act 1995); and requiring that certain information about credit providers be made available on a public register (clause 11, replacing s. 19 of the Consumer Credit (Victoria) Act 1995.)
Presumption of innocence (Charter s. 25(1)): provisions placing an evidential burden on defendants charged with refusing to comply with certain requests or notices relating to property and mortgages to establish a ‘lawful excuse’ for not doing so (clause 33, inserting new sections 29J & 29T into the Sale of Land Act 1962.)

The Statement of Compatibility contends that these provisions do not infringe the right to privacy and reasonably limit the presumption of innocence. Having considered the above Charter rights and provisions, the Committee is satisfied that the measures so engaged do not warrant any special mention or adverse comment in respect to possible incompatibility with human rights.

The Committee makes no further comment

Crimes Amendment (Child Homicide) Bill 2007

Purpose

The Bill amends the Crimes Act 1958 (the ‘Act’) to create a new offence of child homicide, to increase the maximum penalty for the offence of negligently causing serious injury and to split the offence of dangerous driving causing death or serious injury into separate offences with different maximum penalties.

Note: The transitional provision in clause 6 states that all amendments made by the Act apply only to offences alleged to have been committed on or after the commencement of the Act.

Content and Committee comment

[Clauses]

[2]. Provides that the Bill will come into operation on the day after Royal Assent.

Child homicide

[3]. Inserts a new section 5A into the Act to create the new offence of child homicide.

The new offence incorporates the elements of the common law offence of manslaughter but has as an additional element that the victim is a child under 6 years of age. The new offence has the same maximum penalty as manslaughter.

Negligently causing serious injury

[4]. Increases the penalty for negligently causing serious injury in section 24 from level 6 imprisonment (5 years maximum) to level 5 imprisonment (10 years maximum).

Dangerous driving causing death or serious injury

[5]. Amends section 319(1) of, and inserts a new section 319(1A) into the Act.

Section 319(1) currently provides for the offence of dangerous driving causing death or serious injury and is amended by removing the alternative element of serious injury from the offence. The resulting offence of dangerous driving causing death will carry an increased penalty of level 5 imprisonment (10 years maximum) (currently 5 years).

A new subsection (1A) is also inserted to create a separate offence of dangerous driving causing serious injury. The offence will carry the same penalty (level 6 imprisonment, 5 years maximum) as the existing offence of dangerous driving causing death or serious injury.

[7]. Makes amendments to the Children, Youth and Families Act 2005, the Coroners Act 1985, the Crimes Act 1958 and the Sentencing Act 1991 that are consequential to the insertion of the new offence of Child Homicide.

Children, Youth and Families Act 2005

[8]. Make amendments to a number of sections in the Act to include the offence of ‘defensive homicide’.

The Committee notes that the explanatory memorandum for clause 8 provides –

‘amends section 356(1), (2)(a), (3) and (4), as well as section 516(1)(b), of the Children, Youth and Families Act 2005 to include the offence of defensive homicide’*.

*Defensve homicide – Section 9AD of the Crimes Act 1958.

Charter Report

Keywords: Age discrimination – Protection of children – Separate offence for manslaughter of children under six – Availability of evidential provisions for drug and alcohol testing in relation to motor vehicle use where the victim is under six

Charter s. 8(3) provides that everyone ‘is entitled to the equal protection of the law without discrimination.’ Discrimination includes discrimination on the basis of age. Charter s. 17(2) provides that ‘[e]very child has the right, without discrimination, to such protection as… is needed by him or her by reason of being a child.’

The Committee notes that clause 3, inserting a new section 5A into the Crimes Act 1958, creates an offence of child homicide. The Statement of Compatibility remarks that the creation of the new offence ‘enables higher penalties to be imposed’ for manslaughter where the victim is under six years old. The Committee observes that the new offence has the same definition and maximum penalty as manslaughter. The Second-Reading Speech remarks that the new offence ‘will give scope to the courts to establish a new sentencing practice’ in cases of manslaughter where the victim is under six. The Committee considers that clause 3 may promote children’s Charter rights to protection from potentially fatal violence.

The Committee also notes that clause 3’s protection only extends to children under six years old.

The Committee therefore observes that clause 3 engages the Charter’s rights to equal protection of the law without discrimination on the basis of age. The Second Reading Speech remarks:

Children under [6 years old] are generally more likely to become victims of homicide than older children. This is due to a range of factors. They include the greater physical vulnerability of young children compared to older children. They also include the particular stresses posed by caring for babies and young children and the fact that physical abuse of children under school age is less likely to be detected through social contacts than the physical abuse of older children.

Whilst the Committee is concerned that the Statement of Compatibility does not address the question of age discrimination, the Committee considers that clause 3 is a reasonable limit on the Charter’s equality rights.

The Committee also notes that clause 3 provides that a person who commits manslaughter on a child under six is ‘guilty of child homicide and not of manslaughter’. The Committee observes that narrowing the definition of manslaughter in this way makes existing Victorian statutory provisions relating to manslaughter unavailable in investigations and trials when the victim is under six years old. The Committee also observes that, while clause 7 amends a number of such provisions to include the new offence of child homicide, it does not amend ss. 57-57B and 58* of the Road Safety Act 1986, which facilitate the proof of drug and alcohol testing results relevant to motor vehicle control in trials for a number of offences, including manslaughter. The Committee is therefore concerned that clause 3, by making it harder to prosecute manslaughter caused by a motor vehicle in cases where the victim is under 6, may infringe such children’s Charter rights to protection without discrimination.

Note: Sections 57, 57A, 57B and 58 concern evidentiary provisions respectively applying to blood tests, urine tests, oral fluid tests and breath tests. The sections facilitate the reception of evidence of these tests in certain legal proceedings including murder or manslaughter.

The Committee will seek further advice from the Attorney-General as to whether the evidentiary provisions of Road Safety Act 1986 (sections 57-57B and 58) also apply to the new offence of ‘child homicide’ introduced by clause 3 of the Bill.

Pending the Attorney-General’s response, the Committee draws attention to these provisions.

The Committee makes no further comment

Infringements and Other Acts Amendment Bill 2007

Purpose

The Bill —

provides for a trial expansion of the infringements regime, during which certain offences under the Summary Offences Act 1966, the Liquor Control Reform Act 1998, and theft which is “shop theft” under the Crimes Act 1958 will be enforceable by infringement notice; and
makes miscellaneous amendments to the Infringements Act 2006 (the ‘Act’) to refine the operation of the current infringement processes and amend other Acts which interact with the Act; and
amends the Supreme Court Act 1986 to provide the Sheriff with the power to temporarily restrain a person who resists the execution of a civil warrant.

Content and Committee comment

[Clauses]

[2]. Other than section 11 the provisions come into operation on proclamation but not later than by 1 January 2009. Section 11 comes into operation on proclamation but not later than by 1 January 2011.

Note: Section 11 provides for the repeal of the three year trial program introduced by the Bill in the three Acts mentioned in the first dot point of the purpose section above.

Liquor Control Reform Act 1998 [5 to 8]

[5]. Amends section 113 of the Act by re-enacting the offences originally set out in paragraphs in section 113(1) into separate subsections. The offences relate to consuming or having liquor on unlicensed premises.

Further the failure or refusal by a drunk, violent or quarrelsome person to leave licensed premises as requested, is repealed and re-enacted in a new section 114(2).

[7]. Provides police members with the power to serve infringement notices for offences committed under sections 113(1), 113(1A), 113(1B), 113(1C) and 114(2).

[8]. Despite clause 7 above an infringement notice cannot be issued to a person who is under 18 years of age at the time of the alleged offence, for the offences under section 113 or 114 of the Act that are enforceable by infringement notice for the purposes of the trial expansion.

Note: The infringement penalty for the consumption or supply of liquor on unlicensed premises under section 113(1), (1A), (1B), (1C) or 114(2) will be 2 penalty units.

Summary Offences Act 1966

[9]. Amends section 60AA of the Act to provide that, during the trial expansion of the infringements system, a police member may serve an infringement notice on a person who is aged 18 years or more for the following offences —

wilful damage to property being under the value of $500 (section 9(1)(c));
indecent, abusive or obscene language (section 17(1)(c)); and
offensive behaviour (section 17(1)(d)).

Note: The penalty applicable when these trial offences are enforced by infringement notice will be 2 penalty units.

Crimes Act 1958

[10]. Inserts new section 74A providing for “shop theft”, which is a “sub set” of the indictable offence of theft. Shop theft covers theft from retail premises of goods that are displayed or offered for sale for less than $600. It may be enforced by infringement notice and an infringement penalty of 2 penalty units applies.

Note: From the Second reading Speech – The Bill creates a new ‘infringeable’ version of the offence of theft in the Crimes Act 1958. This provision makes it an infringeable offence to steal goods valued at, or displayed for sale for, up to $600 from retail premises. The new offence is only to be used to deal with first-time, minor and ‘one-off’ offending, where restitution has been made or the retailer does not require it. It will not be used in relation to conduct involving repeat offenders, syndicates or workplace theft.

The infringeable offence of shop theft remains, like the ‘parent’ offence, an indictable offence that is also triable summarily. The powers and safeguards provided for the investigation of indictable offences apply in relation to the new infringeable offence. In practice, this will mean that police are able to use their investigative powers under the Crimes Act 1958 before deciding what enforcement action to take – i.e., whether to give a caution, issue an infringement notice or proceed by charge and summons. A defendant who receives an infringement notice for shop theft and elects to have the matter dealt with by the court has the same legal rights and liabilities as would apply if the matter had originally proceeded by charge and summons. If the police issue an infringement notice but subsequently find that, in the light of further information, it is preferable to take proceedings in court, the police may withdraw the notice and proceed by charge and summons.

Repeal of amendments relating to the trial period

[11]. Repeals the relevant sections of the Acts amended by this Bill by clauses 7 to 10 being the trial period of the new offences for which an infringement notice may be issued that are currently prosecuted by charge and summons. If the trial is not extended the repeal will occur on or prior to 1 July 2011.

Amendments to the Infringements Act 2006

[22]. Inserts a new section 71A to establish that when proceedings commence in relation to a matter for which an infringement notice for an indictable offence was originally issued, the matter proceeds as if it had commenced by charge and summons under section 53 of the Magistrates’ Court Act 1989.

[28 to 37]. Amend Part 8 of the Act, which sets out the circumstances in which the driver licence or the registration of a motor vehicle or trailer belonging to a person in default of an infringement warrant can be suspended. The effect of the amendments is to provide that a person remains in default unless and until all infringement warrants have been dealt with.

[39] Clarifies how Part 11 of the Act applies when one or more than one infringement warrant has been issued against a fine defaulter. Part 11 provides that a charge can be made over real property or the property sold where the amount owed on an infringement warrants exceed $10,000. The amendment ensures that all money owed on all infringements warrants against a person may be taken into account in determining whether the threshold level for the making of such an order has been reached.

Infringement notice offences - Consultation certificate – Subordinate Legislation Act 1994

[43]. Amends section 6A of the Subordinate Legislation Act 1994, which requires a Minister to consult with the Department of Justice before making a statutory rule that creates or varies an offence enforceable by infringement notice. The amendment clarifies that an infringements offence consultation certificate is needed whenever a statutory rule will result in an offence being enforceable by infringement notice or vary the infringement penalty, regardless of whether the offence is located in the proposed statutory rule or in principal legislation.

Use of force – execution of warrant

[44]. Amends the Supreme Court Act 1986 to enable the sheriff or a person so directed by the sheriff, when executing a civil warrant, to temporarily restrain a person who hinders the execution of the warrant.

Note: Section 82H of the Magistrates’ Court Act 1989 provides power to restrain a person to the sheriff for the execution of criminal warrants.

[46]. Provides for the automatic repeal of the amending Act on 1 July 2012.

Charter Report

Keywords: Reasonable limits on rights – Age-appropriate criminal procedures – Enforcement of the criminal law – Age discrimination – Property – Liberty

Charter s. 7(2) provides that human rights may be ‘subject by law only to such reasonable limits as can be demonstrably justified in a free and democratic society.’ Charter s. 25(3) provides that every ‘child charged with a criminal offence has the right to a procedure that takes account of his or her age and the desirability of promoting the child’s rehabilitation.’

The Committee notes that the Bill’s subject-matter relates to the enforcement of the criminal law. The Committee observes that such legislation inevitably engages a variety of human rights, but that reasonable provisions will typically satisfy Charter s. 7(2), as well as internal limits on particular rights.

The Statement of Compatibility identifies several provisions of the Bill that are said to engage the following Charter rights:

Age discrimination (Charter s.8(3)): provisions excluding children under 18 from a trial expansion of the infringement system (clause 8, amending s. 141 of the Liquor Control Reform Act 1998; clause 9, amending s. 60AA of the Summary Offences Act 1966; and clause 10, inserting a new section 74A into the Crimes Act 1958)
Property (Charter s. 20): provisions altering the threshold for the availability of warrants to recover money owed pursuant to infringement warrants (clauses 38 & 39, substituting s. 122 and amending ss. 134, 136, 137 & 146 of the Infringements Act 2006)
Liberty (Charter s. 21(1)): provisions for imprisonment of a person in lieu of payment of a partially discharged fine (clause 40, amending s. 160 of the Infringements Act 2006); and for restraint of a person who is hindering the execution of a warrant (clause 44, inserting a new s. 121A into the Supreme Court Act 1986)

The Statement of Compatibility contends that the Charter’s rights to property and liberty are not limited by the Bill. In relation to the question of age discrimination, the Statement contends that the provisions are a reasonable limit on the Charter’s equality rights and, in particular, remarks that:

The removal of children from the scope of the trial means that young offenders will continue to be dealt with either through the formal cautioning program in place for children, or by the Children’s Court. The court is the appropriate venue to offer an individualised approach to young offenders.

Having considered the above Charter rights and provisions, the Committee is satisfied that the measures so engaged do not warrant any special mention or adverse comment in respect to possible incompatibility with human rights. In particular, the Committee considers that the exclusion of children from the trial promotes children’s Charter right to age-appropriate criminal procedures.

The Committee makes no further comment

Legislation Reform (Repeals No. 2) Bill 2007

Introduced: 4 December 2007
Second Reading Speech: 6 December 2007
House: Legislative Assembly
Member introducing Bill Mr John Brumby MLA
Portfolio responsibility: Premier

Purpose

The Bill repeals spent or redundant Acts.

Content and Committee comment

[Clauses]

[2]. The Act comes into force on Royal Assent.

[3]. Provides for the 55 Acts listed in the Schedule to be repealed. The Acts in the Schedule comprise 7 principal Acts and 48 amending Acts.

[4]. Provides for the automatic repeal of this Act on the first anniversary of the day on which the Act receives Royal Assent.

Schedule

The Schedule divides the Acts to be repealed into 2 categories –

Spent principal Acts, and
Spent amending Acts with transitional, validation, saving or substantive provisions.

Note: The explanatory memorandum provides background material concerning each of the Acts to repealed and points our that any residual effect of transitional provisions in those Acts will be saved by the operation of section 14 of the Interpretation of Legislation Act 1984.

Note: A motion passed by the Legislative Assembly on 6 December 2007 referred this Bill to the Committee for inquiry, consideration and report.

The Committee makes no further comment

Professional Boxing and Combat Sports Amendment Bill 2007

Introduced: 4 December 2007
Second Reading Speech: 6 December 2007
House: Legislative Assembly
Member introducing Bill Mr James Merlino MLA
Portfolio responsibility: Minister for Sport, Recreation and Youth Affairs

Purpose

The amends the Professional Boxing and Combat Sports Act 1985 (the ‘Act’) to –

provide for powers, duties and functions to be exercised by the Professional Boxing and Combat Sports Board,
provide for the Minister to give directions to the Board,
enable the Board to prevent contestants who lack the necessary professional skills from competing in professional contests,
provide for a list of persons who may act as timekeepers,
provide a range of consequential regulation making powers and otherwise improve the operation of the Act.

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill commence on proclamation but not later than by 1 July 2008.

[6 and 7]. Provides for the power to license persons involved in professional contests, such as judges, trainers and referees and the power to issue permits to conduct promotions is to be transferred from the Minister to the Board.

[13]. Provides for the substitution of a new section 10B which transfers the power to cancel or suspend the registration of a professional contestant from the Minister to the Board. The section provides the circumstances in which the Board must and where it may cancel or suspend a contestants registration.

Compulsory medical examinations and fitness tests

[15]. Provides for a new Division 3 of Part II of the Act to be substituted to require professional contestants to present themselves for medical examination within 24 hours before and after a contest, and at any other time as directed by the Board, and for medical examinations or fitness tests required under the regulations.

Contestants, including those registered in another State or Territory, are obliged to refrain from competing in a professional contest if a medical practitioner has declared the contestant unfit, and not to compete again until he or she has been declared fit in accordance with the Act or the regulations.

[18]. Provides for the substitution of Division 5 of Part II relating to the Board. The clause incorporates previous provisions regarding the establishment, composition, functions, powers and immunity of the Board.

[27]. Provides for this amending Act to be repealed on 1 July 2009.

Charter Report

Keywords: Reasonable limits on rights – Regulation of a sport – Discrimination on the basis of impairment or physical features – Medical treatment without consent – Privacy – Statement of compatibility

Charter s. 7(2) provides that human rights may be ‘subject to such reasonable limits as can be demonstrably justified in a free and democratic society’.

The Committee notes that the Bill’s subject-matter relates to the regulation of a sport. The Committee observes that such legislation inevitably engages a variety of human rights, but that reasonable provisions will typically satisfy Charter s. 7(2), as well as internal limits on particular rights.

The Statement of Compatibility identifies several provisions of the Bill that are said to engage the following Charter rights:

Discrimination on the basis of impairment or physical features (Charter s.8(3)): provisions requiring the deregistration of registered professional contestants where a doctor reports that the contestant is unfit to engage in professional contests generally or the Professional Boxing and Combat Sports Board considers that it is against his or her interests to engage in professional contests (clause 13, substituting s. 10B into the Professional Boxing and Combat Sports Act 1985)
Medical treatment without consent (Charter s. 10(c)): provisions giving the Professional Boxing and Combat Sports Board a discretion to deregister registered professional contestants who fail to present for a medical examination at various times (clause 13, substituting s. 10B of the Professional Boxing and Combat Sports Act 1985)
Privacy (Charter s. 13(a)): provisions requiring medical practitioners to notify the Professional Boxing and Combat Sports Board about any professional contestant’s unfitness to compete (clause 15, substituting s. 12 of the Professional Boxing and Combat Sports Act 1985).

The Statement of Compatibility contends that the Charter’s right against discrimination is either not limited or reasonably limited by the Bill, and that the Charter’s rights against medical treatment without consent and to privacy are not limited by the Bill. Having considered the above Charter rights and provisions, the Committee is satisfied that the measures so engaged do not warrant any special mention or adverse comment in respect to possible incompatibility with human rights. In particular, the Committee considers that clause 15, by replacing an existing criminal offence for failing to submit to a medical examination in the current s. 12(1) of the Professional Boxing and Combat Sports Act 1985 with a discretion to deregister a professional contestant in such circumstances, promotes the Charter’s right to freedom from non-consensual medical treatment.

The Committee observes that the Statement of Compatibility does not identify by clause or section number any of the provisions it discusses. The Committee reiterates its view, stated in Alert Digest No. 14 of 2007, that –

‘the absence of express references to clause or section numbers in relation to a complex Bill may render the statement of compatibility incapable of informed consideration by members of Parliament.’

The Committee draws attention to its Practice Note No. 2 concerning the content of Statements of Compatibility and the Committee’s practice in reporting on them where the Committee considers that they are inadequate or inaccurate.

The Committee will raise these concerns with the Minister.

The Committee makes no further comment

Relationships Bill 2007

Purpose

The Bill —

establishes a register for the registration of domestic relationships in Victoria;
provides for relationship agreements;
provides for the adjustment of property interests between partners;
provides for the rights of domestic partners to maintenance;
repeals Part IX of the Property Law Act 1958;
makes consequential amendments to Victorian Acts that currently recognise domestic partners and relationships, in order to make provision for registered relationships.

Note: Registration will provide conclusive proof of the existence of a domestic relationship. Partners in registered relationships will not have to provide any further evidence to establish that their relationship exists. This will make it easier for domestic partners to access their rights under Victorian law.

The Bill also provides a single location for statutory requirements governing property matters in the event of a breakdown of a domestic relationship. The Bill provides for the enforcement of relationship agreements made between domestic partners, allows for the adjustment of property interests between domestic partners and establishes a limited scheme for maintenance.

Content and Committee comment

[Clauses]

[2]. Other than two items in Schedule 1 the Act will come into operation on proclamation but not later than by 1 December 2008. Items 25 and 69 of Schedule 1 will commence on proclamation but not later than by 1 July 2009.

Note: Schedule 1 includes consequential amendments to the Freedom of Information Act 1982 and the Consumer Credit (Victoria) Act 1995. However, if the consequential amendments to those Acts do not come into operation before 1 July 2009, they will come into operation on that day. This extended commencement date is necessary to match the commencement date for amendments to those Acts that are currently before the Parliament.

[6]. Two persons who are in a registrable relationship may apply to the Registrar for registration of that relationship. They must live in Victoria and cannot be married or in relationship that is already registered in Victoria, or in another relationship that could be registered in Victoria.

[10]. The Registrar may register or refuse to register a relationship application within a reasonable time after 28 days from the time of the application.

The Committee reports to Parliament pursuant to a term of reference provided in section 17(a)(ii) of the Parliamentary Committees Act 2003, – ‘makes rights, freedoms or obligations dependent on insufficiently defined administrative powers’.

The Committee observes that the criteria and requirements in sections 6 and 7 of the proposed Act for an application for registration appear to be reasonably prescribed and self-evident, however the Committee notes that the reasons to refuse to register a relationship are not so prescribed in the legislation and that as a result the administrative powers of the registrar appear to be insufficiently defined.

The Committee will seek further advice from the Attorney-General concerning the desirability to prescribe and limit the registrar’s powers under section 10(3)(b) of the proposed Act.

The Committee further reports on the registrar’s powers in respect to this issue in the Charter Report below.

Pending the Attorney-General’s response the Committee draws attention to the provision.

[11]. Registration is automatically revoked by the death or marriage of either person in the relationship. It may also be revoked if one or both of the persons in the relationship apply to the Registrar for revocation.

[16]. A court, on application by an interested person or on the court’s own motion, may order the revocation of the registration of a registered relationship.

[18 and 19]. Sets out the Registrar’s powers of inquiry in relation to the Relationships Register and provides for when the Registrar may or must make a correction of or amendment to the Relationships Register.

[20]. Requires the Registrar, as far as practicable, to protect the privacy of persons to whom the entries in the Relationships Register relate, as well as any other persons named in those entries, when providing information extracted from the Register.

[21]. The Registrar may search the Relationships Register for an entry about a particular registered relationship. The Registrar may reject the application if the applicant does not have an adequate reason for wanting the information, having regard to the connection between the applicant and the subjects of the entry, the age of the entry, the contents of the entry and any other relevant factors.

Access to information on the Register

[24]. Allows the Registrar to grant access to the Relationships Register or to provide information extracted from the Register. Access or information may be provided to a person or organisation that has an adequate reason for wanting the access or information.

Note: In deciding whether a person or organisation has an adequate reason for wanting the access or information, the Registrar must have regard to the nature of the applicant’s interest, the sensitivity of the information, the use to be made of the information and other relevant factors. In making the decision about the access or information, the Registrar must, as far as practicable, protect the privacy of persons to whom the entries in the Register relate, as well as any other persons named in those entries.

[26]. Allows the Registrar to collect information, other than registrable information, relating to registered relationships and to keep separate records of that information.

[27]. Allows the Registrar to provide additional services in connection with the provision of services relating to the registration of a registrable relationship. This includes providing information from the Relationships Register, or from other records, in the form of a decorative certificate. The Registrar may charge a fee for the additional services which does not bear a relation to the cost of providing the service.

Note: A charge under section 27 is at the absolute discretion of the Registrar.

[28]. Allows a person whose interests are affected by a decision of the Registrar under the Bill to apply to the VCAT for review of the decision.

Relationship agreements, property and maintenance

[35]. Sets out the definitions that apply in Part 3.2, which relates to relationship agreements made between domestic partners.

Note: The provisions of the Part are not dependant on the registration of a relationship under the Act. Where a domestic relationship is not registered, all of the circumstances of the relationship are to be taken into account in determining whether a domestic relationship exists or has existed.

Clause 35(2) lists a number of circumstances that may be relevant in a particular case, including the degree of mutual commitment to a shared life and the duration of the relationship.

[36]. A relationship agreement is to be dealt with according to the law of contract.

[37]. A court may vary or set aside a relationship agreement where circumstances have changed and it would be unfair to enforce the agreement or if it has been made as a result of fraud or duress or for any other reason that would allow a contract to be varied or set aside.

[38]. Sets out what the effect will be on certain provisions of a relationship agreement when one or both of the domestic partners dies.

Property and maintenance

[40]. Empowers a court in proceedings between domestic partners with respect to property to declare existing title or rights partners have in the property and to make orders giving effect to the declaration.

[41]. A domestic partner can apply to a court for either an order for the adjustment of property interests or for maintenance, or both.

[42]. Sets out residential and other prerequisites for making an order for the adjustment of property interests or for maintenance in circumstances where there is no registered relationship.

[43]. Sets out time limits of 2 years after the relationship ended for the making of an application for adjustment or maintenance orders. However, the court may grant leave to extend the time limit if hardship would result if leave were not granted.

[45]. Property adjustment – Allows a court to make an order for the adjustment of property interests that seems just and equitable having regard to a number of specified factors.

[51 to 57]. Maintenance orders – These clauses deal with a courts powers to make an order for maintenance in favour of a domestic partner unable to support themselves because their earning capacity has been adversely affected by the domestic relationship, or any other reason arising from the relationship, and allows a court to make an interim order for maintenance where the applicant is in immediate financial need. The provisions also deal with the effect on orders of subsequent marriage or new relationships, the cessation of orders, recovery of arrears and variation or orders for periodic maintenance.

[59]. If certain requirements have been met, a court is not to make an order that is inconsistent with the arrangements made in a relationship agreement between domestic partners. The formal requirements are that an agreement must be in writing, signed by the partner against whom it is to be enforced, and that each partner took independent legal advice as to its effect before entering the agreement.

Note: Even where the formal requirements are met, the court is not bound to give effect to the terms of an agreement where the partners have explicitly or impliedly revoked it, the agreement has otherwise ceased to have effect or the court varies or sets aside the agreement under clause 37 of the Bill.

[60]. Enables a court to order the execution of a deed or instrument where a person refuses or neglects to comply with a direction to do so.

[61]. Urgent orders may be made in absence of a party – In urgent cases, a court may make certain orders to protect certain property or aid enforcement of a relevant order, in the absence of a party.

[72]. Provides for the repeal of Part IX of the Property Law Act 1958.

Note: Part IX of the Act currently deals with property rights and alteration of domestic partners. However, Part IX makes no provision for maintenance orders or for relationship agreements.

[73]. The Acts specified in Schedule 1 are to be consequentially amended as set out in that Schedule and provides for the automatic repeal of the clause and Schedule 1 on 1 December 2009.

Note: The consequential amendments reflect the provision of registered relationships introduced by this Bill in those Acts that already recognize ‘domestic partnerships’ and correct references made to Part IX of the Property Law Act 1958. The amendments do not effect the continued operation of the provisions in those Acts where there is no registered relationship.

[75]. Provides for interim fees associated with the Relationships Register.

Charter Report

Keywords: Equal protection – Age discrimination – Marital status discrimination – Registration of relationships – Limits on registration – Limits on recognition of registration – Whether equal and effective protection of families

Charter s. 8(3) provides that everyone is ‘entitled to the equal protection of the law without discrimination’ and ‘has the right to equal and effective protection against discrimination.’ Discrimination includes discrimination on the basis of age and marital status (including having a domestic partner.) Charter s. 7(2) provides that human rights may be ‘subject to such reasonable limits as can be demonstrably justified in a free and democratic society’.

The Committee notes that clauses 10 & 12 provide for the registration of certain relationships and the issuing of a certificate that is admissible evidence of that registration. The Committee also notes the Schedule 1 amends all definitions of ‘domestic partner’ in Victorian legislation (including the definition in the Equal Opportunity Act 1995 that is relevant to the definition of discrimination for the purposes of the Charter) to include partners in registered relationships.

Whilst the Committee considers that clauses 10 & 22 and Schedule 1 promote those couples’ Charter rights to protection against discrimination, the Committee observes that clause 6 limits registration to persons in ‘registrable relationships’ who satisfy various registration requirements. In particular, the Committee notes that the following people with domestic partners will not be able to register their relationship (or remain registered):

people who are under 18 or whose partner is under 18 (definition of ‘registrable relationship’ in clause 5)
people who do not provide ‘personal or financial commitment of a domestic nature for the benefit of’ their partner or vice-versa (definition of ‘registrable relationship’ in clause 5), but who nevertheless live with them ‘on a genuine domestic basis’ (definition of ‘domestic partner in s. 4 of the Equal Opportunity Act 1995 and numerous other Victorian statutes)
people who are not domiciled or resident in Victoria or whose partner is not domiciled or resident in Victoria (clause 6(a))
people who are married or who have a second domestic partner, or whose partner is married or has a second domestic partner, or who subsequently marry (clauses 6(b), 6(c) & 11(b))

The Committee observes that these categories of people, who are all domestic partners for the purposes of many Victorian laws, are prevented by clauses 5 and 6 from proving that status via registration. The Committee therefore considers that clause 5 and 6 engage the Charter rights of such people to equal and effective protection from discrimination on the basis of marital status (including having a domestic partner.)

The Committee also considers that the definition of ‘registrable relationship’ in clause 5, by excluding people under 18 from registration, engages the Charter’s right to equal protection of the law without discrimination on the basis of age. The Statement of Compatibility remarks:

The purpose of the limitation regarding age is to protect persons under 18 years of age who are more vulnerable than adults because of their age, and therefore are less likely to have the maturity and capacity to make an informed decision about registering a relationship and to understand the consequences of registration…

It would be an unreasonable administrative burden on the registrar to require them to assess each individual aged 16 or 17 years to determine whether they have sufficient capacity to make the decision. The registrar is also not empowered to undertake judicial functions unlike a court who can authorise a person to marry when aged 16 or 17 in exceptional circumstances.

The Committee observes that concerns about minors’ capacity to understand the consequences of registration may be addressed through a requirement of parental consent and/or by extending the existing jurisdiction of Victorian judges and magistrates in relation to the marriage of minors to include a power to authorise a registrar to register a relationship involving a minor.

The Committee further considers that clauses 6(b), 6(c) & 11(1)(b), which deny registration to people who are married or have more than one domestic partner, engage the Charter’s right against marital status discrimination (including discrimination on the basis of having a domestic partner.) The Statement of Compatibility remarks:

The purpose of the limitation regarding marital status is to ensure that a person is only in one registered relationship and is not married in order to register a relationship. Legal and practical difficulties would arise if a person had more than one registered partner or both a registered partner and a spouse, for example, where a doctor needs to discuss a person’s medical treatment with the next of kin in an emergency situation.

The Committee observes that domestic relationships, unlike marriage, are not exclusive relationships and that it remains possible for a person to be in multiple domestic relationships, or in one or more domestic relationships and a marriage, or to enter into additional domestic relationships while in a registered relationship. The Committee also observes that all these relationships may attract consequences under Victoria laws, including the definition of next of kin (which does not distinguish between spouses, registered domestic partners or unregistered domestic partners: see s. 3 of the Human Tissue Act 1982, which is picked up by the Health Act 1958 and the Health Services Act 1988.) The Committee further observes that clause 6(c) (and the requirement of a statutory declaration in clause 7(a)(iii)) may cause difficulties for a relationship when one party wasn’t aware that the other party is in a registrable relationship with someone else (e.g. a ‘mistress’.)

The Committee finally notes that Schedule 1 does not modify Victorian laws that define the terms ‘de facto relationship’ (Adoption Act 1984, s. 4; Infertility Treatment Act 1995, s. 3); ‘de facto spouse’ (Adoption Act 1984, s. 4; Crimes Act 1958, s. 35; Drugs, Poisons and Controlled Substances Act 1981, s. 61; Terrorism (Community Protection) Act 2003, s. 13ZD); and (in a domestic sense) ‘partner’ (Emergency Services Superannuation Act 1986, s. 3; Parliamentary Salaries and Superannuation Act 1986, s. 10; State Employees Retirement Benefits Act 1979, s. 2; State Superannuation Act 1988, s. 3; Superannuation (Portability) Act 1989, s. 3; Terrorism (Community Protection) Act 2003, s. 13ZD) to include (as appropriate) opposite-sex or same-sex registered relationships.

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

whether or not clauses 5, 6 & 11(b), to the extent that they deny the benefits of registration to some domestic partner, infringe their rights to equal and effective protection against discrimination;
whether or not clause 5, to the extent that it denies the benefits of registration to minors and their domestic partners, discriminates against them on the basis of age;
whether or not clauses 6(b), 6(c) & 11(b), to the extent that they deny the benefits of registration to people who are married or in two or more domestic relationships, or whose domestic partners are married or in two or more domestic relationships, discriminate against them on the basis of their marital status (including having a domestic partner);
if so, whether or not these clauses are reasonable limits on human rights according to the test in Charter s. 7(2).

The Committee resolves to seek further clarification from the Attorney-General as whether registration is conclusive proof that a person’s domestic partner will satisfy the definition of ‘de facto’ and (used in a domestic sense) ‘partner’ where those terms are used in Victorian legislation.

Pending the Attorney-General’s response, the Committee draws attention to these provisions.

Keywords: Privacy and family – Registrar’s powers to require information or make inquiries – Requirement to enter particulars of registered relationships into the register – Registrar’s discretion to refuse to register a registrable relationship – Court’s power to revoke the registration of a registered relationship – Unlawful interferences in privacy and family

Charter s. 13(a) provides that everyone ‘has the right… not to have his or her privacy [or] family… unlawfully or arbitrarily interfered with.’ An interference is unlawful unless it is authorised by a law that is certain, appropriately circumscribed and accessible. Charter s. 7(2) provides that human rights may be ‘subject to such reasonable limits as can be demonstrably justified in a free and democratic society’.

The Committee notes that clauses 7(d) & 8 require applicants for registration of a registered relationship to provide ‘any other document or information that the Registrar [of Births, Deaths and Marriages] requires for the purposes of determining the application’. The Committee also notes that clause 18 provides the Registrar with powers to verify information provided in connection with an application or to check the correctness of particulars on the register, including a power to require any ‘person who may be able to provide information relevant to’ such an inquiry to do so or face a criminal penalty. The Committee considers that clauses 7(d), 8 & 18 engage applicants’ Charter rights not to have their ‘privacy… unlawfully or arbitrarily interfered with.’

The Statement of Compatibility remarks:

The circumstances in which the bill will authorise the registrar to collect the information in question are circumscribed. The main purpose of obtaining information is to ensure that applicants meet the eligibility requirements for registration and that the register is correct. This is vital to the integrity of the register. Another purpose of obtaining information is to enable the registrar to provide additional services in relation to the registration of a registrable relationship (for example, recording the duration of a relationship prior to registration on a commemorative certificate.) The exercise of these powers is therefore neither unlawful nor arbitrary.

The Committee observes that the scope of clauses 7(d), 8 and 18 depends on the nature of the particulars in the Relationships Register and the matters that the Registrar is required or permitted to consider in exercise of any of his or her powers in relation to registration of relationships.

The Committee also observes that the Bill does not specify the grounds on which the Registrar may ‘refuse to register the relationship’ (under clause 10(3)(b)) or the particulars of each registered relationship required under this Act to be included’ in the register (under clause 17(2)), including, for example, whether or not the relationship were or remain in a registrable relationship and the past and continued satisfaction of the eligibility requirements in clause 6. The Committee is therefore concerned that clauses 7(d), 8 and 18 may not clearly define what information the Registrar is and isn’t entitled to request, demand or inquire about.

The Committee further observes that one of the eligibility requirements for registration is that the applicants are in a ‘registrable relationship’, which requires that they be a ‘couple’, that at least one member provide ‘personal or financial commitment or support of a domestic nature for the material benefit of the other’ and that the relationship is not ‘for fee or reward’ or ‘on behalf of another person’. The Committee additionally observes that clause 35(2) provides that, in determining whether or not a couple are in a domestic relationship (which has the same definition as a ‘registrable relationship’), all circumstances can be taken into account including the degree of the couple’s mutual commitment, the relationship’s duration, the nature of the couple’s residence, whether or not a sexual relationship exists, financial arrangements, property arrangements, care for children and the reputation and public aspects of the relationship. The Committee finally observes that clause 6(c) precludes registration if one member of the couple is in a registrable relationship with another person. The Committee is therefore also concerned that clauses 7(d) & 8 may authorise the Registrar to require applicants to reveal highly personal information and that clause 18 may authorise the Registrar to make inquiries into (and demand information from people about) highly personal information.

The Committee is further concerned that the Bill does not specify the circumstances when an application to register a registrable relationship can be refused (under clause 10(3)(b)) or when a court may bar the Registrar from revoking the registration of a registered relationship (under clause 15(b)) or order the revocation if an ‘interested person applies’ or ‘on its own motion’ (under clause 16.) In relation to clause 16, the Explanatory Memorandum comments:

For example, this would allow a court dealing with property matters arising from a registered relationship that has broken down to order the revocation as a way of finally determining the relationship.

The Committee observes that no court has the power to order the divorce of a married couple except upon the application of one of the spouses. The Committee also observes that courts and tribunals are exempted from the requirement in Charter s. 38 to act compatibly with human rights.

The Committee further observes that discretionary control by the Registrar or a court of tribunal over the registration of a registrable relationship or the revocation of the registration of a registered relationship may significantly diminish the dignity of the members of those relationships and limit their personal autonomy.

The Committee considers that clauses 7(d), 8, 10(3)(b), 15(b), 16, 17(2) and 18 are not certain, appropriately circumscribed or accessible and therefore may infringe the Charter rights of people in registrable and registered relationships to not be subject to unlawful interference in their privacy or family. The Committee refers to Parliament for its consideration the question of whether or not these clauses are reasonable and demonstrably justified limits on human rights according to the test in Charter s. 7(2).

Keywords: Equal protection of the law – Protection of families and children – Whether registration procedures are as accessible as marriage procedures – Whether revocation procedures are as protective as divorce procedures – Whether reasonable limits on protection

Charter s. 8(3) provides that everyone is ‘entitled to the equal protection of the law without discrimination’. Charter s. 17 provides that ‘[f]amilies… are entitled to be protected by society and the State’ and that every child has ‘the right, without discrimination, to such protection as is in his or her best interests’. Discrimination includes discrimination on the basis of marital status and sexual orientation. Charter s. 7(2) provides that human rights may be ‘subject to such reasonable limits as can be demonstrably justified in a free and democratic society’.

The Committee notes that the all the benefits that the Bill affords to registered couples are also available to married couples (who will automatically satisfy the definition of spouse and whose marriage will be registered on the marriage register under Part 5 of the Births, Deaths and Marriages Act 1996.) The Committee observes that numerous overseas courts have held that the right to equal protection of the law includes the right of unmarried people to the benefits that the law affords to married people, unless there is an appropriate and non-discriminatory reason to distinguish between them. The Committee considers that the Bill, to the extent that it maintains or permits differences in the legal processes and consequences of registering relationships and marriage, may engage the Charter rights of unmarried people to equal protection of the law and the rights of their children to protection without discrimination.

The Second-Reading speech remarks:

A domestic relationship, registered or otherwise, is not, of course, marriage, over which the state has no constitutional power and which is defined by the commonwealth Marriage Act 1961 to exclude same-sex couples.

The Committee observes that, whilst Victoria has the power to pass valid laws with respect to marriage (and has done so in the past), such laws will currently be of no effect to the extent that they are inconsistent with the Marriage Act 1961 (Cth) or another Commonwealth law. The Committee also observes that Victoria cannot change the definition of marriage in the Marriage Act 1961 (Cth) or require other jurisdictions to recognise Victorian relationships in their laws. However, the Committee further observes that Victoria has the power to provide registration and revocation procedures for relationships that are equivalent to those for marriage.

The Committee notes that the registration process in the Bill differs from the process of registering a marriage under Part 5 of the Births, Deaths and Marriages Act 1996 in the following respects:

Eligibility: Registration of a relationship requires that the partners be in a ‘registrable relationship’ (including being adults and providing material benefit) (clause 5), residents of Victoria and in no other relationships (clause 6), whereas marriage is available to all unmarried adults (apart from certain relatives) and is available to some minors in some circumstances (Parts II and III of the Marriage Act 1961 (Cth)).
Process: Registration of a relationship is at the Registrar’s discretion and can be revoked by a court without an application from the partners (clauses 10(3)(b) and 16), whereas the Registrar must register all marriages solemnised in Victoria and divorces require an application by a party to the marriage (s. 31 of the Births, Deaths and Marriages Act 1996 & s. 44(1A) of the Family Law Act 1975 (Cth)).
Cost: Registration costs $180 and revocation of registration costs $58.50 (clause 75(1)), whereas registration of a soleminised marriage and removal of that registration following divorce are free (although solemnisation and divorce may themselves be costly.)

The Committee considers that these differences, to the extent that they would prevent or deter an unmarried couple from accessing the benefits of registration in circumstances where a similarly placed opposite-sex couple would not be prevented or deterred from accessing the same benefits via marriage, may infringe the Charter rights of those couples and their children to equal protection of the law.

The Committee also notes that the revocation process in the Bill differs from divorce under Parts V and VI of the Family Law Act 1975 (Cth) in the following respects:

Marriage to someone else: Registration is automatically revoked when one partner marries (clause 11), whereas marriage by a married person does not end the marriage and is both invalid and criminal (s. 94 of the Marriage Act 1961 (Cth))
Availability: Revocation is available 90 days after a party lodges a revocation application (clause 15), whereas divorce require a court order and prior separation of the couple for at least 12 months (s. 48(2) of the Family Law Act 1975 (Cth).)
Reconciliation: Revocation does not require any consideration of reconciliation, whereas, in the case of a couple married for under two years, they must first have considered reconciliation with the assistance of a professional counsellor (s. 44(1B) of the Family Law Act 1975 (Cth))
Children: Revocation is available regardless of the circumstances of children of the relationship, whereas divorce generally cannot be ordered unless a court is satisfied ‘that proper arrangement has been made in all the circumstances for the care, welfare and development’ of children of the marriage (s. 55A of the Family Law Act 1975 (Cth))

Whilst the Committee considers that clauses 11 and 15 may provide less protection to families and children from the consequences of relationship breakdown than are available to equivalent married couples and their children, the Committee also observes that the introduction of similar constraints on revocation of registration of a registered relationship may deter some unmarried couples from registration and its accompanying benefits. However, the Committee further observes that permitting couples to elect, on or after registration, to be bound by such constraints may not attract this consequence.

The Committee additionally notes that the property dispute resolution procedure provided to domestic partners (including partners in a registered relationship) in Chapter 3 of the Bill differs in many respects from the property dispute resolution procedures available to married couples under the Family Law Act 1975 (Cth). In relation to Chapter 3, the Second Reading Speech remarks:

[I]t is only necessary to enact these property-related provisions because of the Howard government’s failure to act on Victoria’s referral of powers made by the Commonwealth Powers (De Facto Relationships) Act 2004 in respect of same-sex domestic partners. When it made this referral, the Victorian government recognised that the current situation, which requires former domestic partners to use both the state and federal jurisdictions, means that they are subject to great expense and effort when dealing with the often difficult legal circumstances surrounding the breakdown of a relationship.

The Committee considers that the cost of unnecessarily duplicating the Commonwealth’s family law processes at a state level may justify lesser protections in Victorian law for unmarried couples as a temporary measure pending an anticipated extension of protections in Commonwealth statutes, according to the test in Charter s. 7(2) for reasonable limits on protection.

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

whether or not the following provisions relating to registration of relationships:
- the requirements that the couple be in a registrable relationship (including being adults and providing material benefit), live in Victoria and not be in a relationship with anyone else (clauses 5 & 6)
- the discretions of the Registrar not to register the relationship and of a court to revoke registration without any application by a party (clauses 10(3)(b) & 16)
- the $180 cost of registering and the $58.50 cost of revocation
  make registration less accessible to couples than marriage is to equivalent opposite-sex couples;
whether or not the following provisions relating to revocation of registration:
- automatic revocation when a party marries (clause 11)
- revocation 90 days after a party applies (clause 15)
- revocation not subject to any requirement of prior separation, consideration of reconciliation, counselling or proper arrangements for children (clause 15)
  provide less protection to registered couples and their children when a relationship breaks down than equivalent married couples and their children receive in the event that a marriage breaks down.
if so, whether the relevant clauses are reasonable limits on the Charter rights of unmarried couples and their children to equal protection without discrimination on the basis of marital status and to protection by the State according to the test in Charter s. 7(2).

Keywords: Reasonable limits on rights – Registration and property disputes – Sexual orientation discrimination – Privacy – Property – Fair hearing

Charter s. 7(2) provides that human rights may be ‘subject by law only to such reasonable limits as can be demonstrably justified in a free and democratic society.’

The Committee notes that the Bill’s subject-matter relates to registration and property disputes. The Committee observes that such legislation inevitably engages a variety of human rights, but that reasonable provisions will typically satisfy Charter s. 7(2), as well as internal limits on particular rights.

The Statement of Compatibility identifies several provisions of the Bill that are said to engage the following Charter rights:

Sexual orientation discrimination (Charter s.8(3)): a definition of ‘child’ that excludes the children of same-sex partners, but where all substantive provisions provide equally for those children (clause 39)
Privacy (Charter s. 13(a)): provisions for searching and accessing information on the relationships register (clauses 21 & 24)
Property (Charter s. 20): provisions for courts to make orders about possession of property, to adjust the interests of partners with respect to property, to make orders for a party to provide maintenance and to order the transfer and sale of property (clauses 40, 45, 51 & 58)
Fair hearing (Charter s. 24(1)): provision for urgent orders or injunctions in the absence of a party to protect property or to allow other orders to be enforced (clause 61)

The Statement of Compatibility contends that the Charter’s rights against sexual orientation discrimination and to privacy and property are not limited by the Bill and that the Charter’s right to a fair hearing is reasonably limited by the Bill. Having considered the above Charter rights and provisions, the Committee is satisfied that the measures so engaged do not warrant any special mention or adverse comment in respect to possible incompatibility with human rights.

The Committee makes no further comment