Scrutiny of Acts and Regulations Committee

Alert Digest No 14 of 2007

Tuesday, 30 October 2007

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Agent-General and Commissioners for Victoria Bill 2007

Introduced: 9 October 2007
Second Reading Speech: 11 October 2007
House: Legislative Assembly
Member introducing Bill Hon. John Brumby MLA
Portfolio responsibility: Premier


Purpose

The Bill creates a new statutory regime for Victoria's overseas representatives. The Agent-General in London, Victoria's traditional representative to the United Kingdom, will be joined by a new class of statutory officeholders, to be known as Commissioners for Victoria.

Commissioners will undertake similar roles to the Agent-General, who will also hold office as a Commissioner. The creation of Commissioners for Victoria will form a brand for Victorian trade and investment promotion professionals, increasing the profile of the State overseas.

Content and Committee comment

[Clauses]

[2]. The Bill will commence operation on the day after Royal Assent.

[4]. Empowers the Governor in Council to appoint the Agent-General and Commissioners for Victoria.

[5 to 9]. Provides the terms and conditions upon which the Agent-General and Commissioners may be appointed, and the circumstances in which they cease to hold office, resign from office, be suspended from office, when an Acting Commissioner may be appointed and sets out the functions and duties of the Agent-General and the other Commissioners for Victoria.

[17]. Repeals the Agent-General's Act 1994.

The Committee makes no further comment

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Animals Legislation Amendment (Animal Care) Bill 2007

Introduced: 10 October 2007
Second Reading Speech: 11 October 2007
House: Legislative Assembly
Member introducing Bill Hon. Joe Helper MLA
Portfolio responsibility: Minister for Agriculture


Purpose

The Bill amends the —

Domestic (Feral and Nuisance) Animals Act 1994 to –

  • rename the Act; and

  • regulate the permanent identification of horses and other animals; and

  • provide for further enforcement powers particularly in relation to restricted breed ; and

  • provide for further offences that may be subject to infringement notices; and

  • create additional offences and increase certain penalties.

Impounding of Livestock Act 1994 to —

  • provide for the impounding of abandoned livestock; and

  • provide for infringement notices to be served for certain offences; and

  • provide for further enforcement powers; and

  • create additional offences; and

  • provide for further regulation making powers

Prevention of Cruelty to Animals Act 1986 to —

  • provide for further enforcement powers; and

  • provide further for the regulation of rodeos and rodeo schools; and

  • increase the penalties for offences; and

  • provide further for the prohibition of certain procedures; and

  • create offences for the breeding and displaying of animals with heritable defects.

Content and Committee comment

[Clauses]

[2]. The commencement provisions provide that some sections will come into operation on Royal Assent whilst the remaining provisions commence on proclamation but not later than by 1 December 2009.

Note: In respect to the delayed commencement provision the explanatory memorandum provides – The period allowed is necessary to allow time to make regulations to support amendments made by the Bill.

Domestic (Feral and Nuisance) Animals Act 1994

[3]. Amends the title to the Act to the Domestic Animals Act 1994.

[28]. Amends section 74A to expand the power of an authorised officer appointed under section 72A to obtain information and ask questions of persons suspected of committing certain offences.

[29]. Substitutes Division 2 of Part 7 of the Act with a new Part 7A consolidating the powers of authorised officers to seize and dispose of dogs and cats. It re-enacts the provisions in Division 2 of Part 7 and adds a number of new provisions.

New section 80 provides authorised officers with a power to seize a dog which the officer reasonably believes is a restricted breed dog.

New section 84C allows an authorised officer to seize an abandoned dog or cat from any premises including a person’s residence.

New section 84E sets out requirements for the application and granting of search warrants to authorised officers.

New section 84O sets out the circumstances in which a dog or cat seized under certain circumstances may be sold or destroyed. This power is currently provided for in section 80(1) of the Act.

New section 84R provides that in situations where the Council suspects that an owner of a dog has committed an offence but does not have sufficient information about the owner to prosecute the owner, the Council may require, in the notice of seizure, the owner to provide their current address.

New section 84W provides the Magistrates' Court with the power to order an owner to carry out works to ensure a dog or cat is not able to escape the owner's premises on being found guilty of certain offences.

Impounding of Livestock Act 1994

[49]. Inserts new section 5A into the Act to set out the powers of an authorised officer of a council to enter any land or non-residential building and impound abandoned livestock.

[62]. Inserts new Division 2 into Part 2 and inserts new section 16B to set out the powers of an authorised officer of a council to serve a notice requiring the owner of livestock to take measures set out in the notice to ensure the livestock are adequately confined.

[64]. Inserts new section 17A into the Act to require a council to hold abandoned livestock that has been impounded for at least 14 days.

[75]. Inserts new Division 2 of new Part 5A and new sections 33B, 33C and 33D and deals with the service of infringement notices in respect of certain offences against the Act and prescribed offences against the regulations.

Prevention of Cruelty to Animals Act 1986 (the POCTA)

[89]. Inserts new section 15B into the Act.

Operator onus offence

Presumption of innocence – New section 15B makes it an ‘operator onus offence’ to carry an unsecured dog on a tray or trailer (section 15A – dogs on moving vehicles) for the purposes of Part 6AA of the Road Safety Act 1986. The operator onus provisions provide a mechanism to determine who may be held responsible for the offence where the identity of the offender is not established at the time the offence is detected (refer to Charter Report below).

[95]. Substitutes new Part 2A (enforcement provisions) of the Act.

New section 23 sets out the emergency powers and situations in which a POCTA inspector may enter premises that is not a person's dwelling and carry out certain activities including inspecting, examining and caring for animals on the premises.

New section 24 gives power to an inspector to enter premises that is not a person's dwelling and seize or destroy abandoned animals.

New section 24G sets out requirements for the application and granting of search warrants to an inspector to enter premises and search for, seize, retain, examine, feed and water, free, take samples from and take photographs of animals. Section 21A of the Act currently sets out these requirements.

New section 24K sets out requirements for the application and granting of search warrants to enter premises, including residential premises, and search for, seize, secure, examine and take photographs of things named or described in the warrant.

New section 24L sets out additional powers of entry for a specialist inspector with the prior written authority of the Minister.

New section 24T sets out the steps that must be taken by an owner or person in charge to recover their seized animal where the welfare of the animal is not at risk. If the owner cannot be ascertained the animal may be disposed of in 14 days.

New section 24X allows a person who seized an animal to apply, in specified circumstances, to the Magistrates' Court for an order for the owner or person in charge of the animal to pay a bond or security for the costs to care for and maintain the animal or an order to dispose of the animal.

New section 24ZD provides a court with the power to order the forfeiture an animal seized in relation to an offence against the POCTA Act or regulations under that Act for which a person has been found guilty. Section 21M of the POCTA Act currently provides for forfeiture of seized animals.

New section 24ZQ sets out the powers of an inspector to require a person to provide information when exercising a power of entry under new Part 2A.

New section 24ZR makes it an offence to obstruct or intimidate an inspector, refuse admission to an inspector exercising a power of entry or a person assisting the inspector or to contravene any direction or requirement of an inspector.

Protection against self-incrimination preserved other than the requirement to provide documents required to be produced by the Act even where they may tend to incriminate
New section 24ZV sets out the circumstances in which the privilege against self-incrimination applies. The privilege does not apply to the production of documents required to be kept under the legislation.

[107]. Inserts new section 41AC which extends the time in which a charge may be filed for certain offences (cruelty, aggravated cruelty and scientific procedures) under the Act to 3 years after the date on which the alleged offence was committed.

[108]. Amends the regulation making powers in section 42(1) of the Act to enable regulations to be made to support the amendments in the Bill in relation to traps and rodeo licences, rodeo permits and rodeo school permits.

[113]. Provides for the automatic repeal of this amending Act on 1 December 2010.

Charter Report

Keywords – Reasonable limits on rights – Keeping and welfare of animals – Forced work – Privacy – Property – Presumption of innocence – Adequacy of 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’. Charter s.28(3)(a) provides that a statement of compatibility must state how a Bill is compatible with human rights.

The Committee notes that the Bill extends and amends various provisions relating to the keeping and welfare of animals. The provisions are generally typical of legislative schemes to regulate private behaviour that may harm others (including, in this instance, humans and animals.)

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

  • Forced work (Charter s.11): Provisions requiring people to comply with orders or directions to ensure that animals cannot escape their property (clause 29 inserting new section 84W into the Domestic Animals Act 1994; clause 62 inserting new sections 16B & 25B into the Impounding of Livestock Act 1994.)

  • Privacy (Charter s.13(a)): Provisions empowering certain officers to –

    • enter premises with an owner or occupier’s permission or a court warrant (clause 29 inserting new sections 84C & 84E into the Domestic Animals Act 1994; clause 95 inserting new sections 24G & 24K into the Prevention of Cruelty to Animals Act 1986);

    • enter non-residential premises without a warrant in certain emergencies (clause 95 inserting new sections 23, 24 & 24ZR(2) into the Prevention of Cruelty to Animals Act 1986);

    • require people suspected of offences to supply their name and address upon request (clause 28(2) amending s74A of the Domestic Animals Act 1994, clause 29 inserting a new section 84R into the Domestic Animals Act 1994; clause 95 inserting new section 24ZT into the Prevention of Cruelty to Animals Act 1986).

  • Property (Charter s.20): Provisions empowering –

    • officers to sell or destroy pets and livestock in various defined circumstances (clause 29, inserting new sections 84O, 84P, 84S & 84T into the Domestic Animals Act 1994; clauses 65, 66 & 67 amending, respectively ss.18, 21 & 22 of the Impounding of Livestock Act 1994);

    • officers to dispose of animals that are unclaimed, at risk, diseased or distressed (clause 95, inserting new sections 23(4)(b), 24(1)(b)(i), 24F(b), 24T, 24W, 24X & 24Z into the Prevention of Cruelty to Animals Act 1986);

    • courts to order the forfeiture of a seized animal or thing where a person has been found guilty of an animal cruelty offence (clause 95 inserting new sections 24ZD & 24ZN into the Prevention of Cruelty to Animals Act 1986.)

  • Presumption of innocence (Charter s.25(1)): A provision that deems the owner of a vehicle to be its driver for the purpose of the offence of driving with an unsecured dog, unless the owner can prove that he or she provided adequate information concerning the identity of the driver or the sale or theft of the vehicle.

In each instance the Statement of Compatibility contends that the respective rights, to the extent that they are infringed at all, are reasonably limited by the Bill according to the test set out in Charter s.7(2). Having considered the above 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.

However, the Committee is concerned that the Statement of Compatibility, which is very lengthy and deals with a large and complex amendment bill, does not identify by clause or section number any of the many provisions that it discusses. The Committee refers to its Practice Note No. 2, which states that ‘the Committee considers that the provision to Parliament of reasonable explanatory material is critical to the Parliament’s exercise of legislative power in an informed manner.’ While appreciating the Statement’s comprehensiveness, the Committee considers that the absence of express references to clause or section numbers in relation to such a complex bill may render the statement incapable of informed consideration by members of Parliament.

The Committee resolves to raise this concern with the Minister.

Keywords – Privacy – Powers of entry and questioning without emergencies or court warrants – Entry and observation of non-residential premises housing animals for purpose of animal cruelty laws– Requirement for occupiers of premises searched under animal cruelty laws to provide information to the extent reasonably necessary to determine whether an offence has been committed – Whether unlawful

Charter s.13(a) gives people the right not to have their ‘privacy… unlawfully or arbitrarily interfered with’. An interference with privacy is unlawful unless it is authorised by a law that is certain, appropriately circumscribed and accessible.

The Committee notes that clause 95 provides for two intrusive enforcement powers that require neither an emergency nor a court warrant. New section 24L of the Prevention of Cruelty to Animals Act 1986 provides that a ‘specialist inspector’ may enter non-residential premises housing animals and observe structures and practices ‘for the purposes of’ Parts 2 and 2A of the Act (dealing, respectively, with the protection of animals and enforcement) and regulations under the Act. The Statement of Compatibility remarks:

This power is a re-enactment of an existing power under the Act. The power can only be exercised with the written authority of the minister, and not in relation to a person’s dwelling, therefore minimising the interference with privacy.

New section 24ZQ(1)(a) provides that occupiers (or their employees or agents) of premises lawfully searched under the Act must ‘give information… orally or in writing’ as required by the inspector ‘[t]o the extent that is reasonably necessary to determine whether an offence’ against the Act ‘has been or is about to be committed.’ The Statement of Compatibility remarks:

These powers are largely a re-enactment of existing powers. The power to request information may only be exercised to the extent that is reasonably necessary to determine whether an offence against the act or regulations has been or is about to be committed.

The Committee observes that all provisions of bills introduced into Parliament after 1st January 2007, including re-enactments of existing laws, are subject to scrutiny for compatibility with human rights under the Charter. The Committee also observes that Charter s13(a)’s right not to be subject to arbitrary or unlawful interferences applies to even minimal interferences with privacy, including entry into non-residential premises. The Committee further observes that the broad questioning power in the new section 24ZQ(1)(a) does not appear to be contained in the existing Act.

While the Committee considers that any interferences with privacy authorised by new sections 24L & 24ZQ(1)(a) are not arbitrary (in light of their express connections to the purpose of preventing cruelty to animals), the Committee is concerned that both powers may be too broad (in both drafting and effect) to be considered lawful interferences with the Charter’s right to privacy, in the absence of context-specific constraints such as a belief that an emergency exists or a court warrant. In the case of the new section 24ZQ(1)(a), the Committee is also concerned that individuals questioned may be unaware that they do not have to comply with a request for information that ‘would tend to incriminate the person’ (as provided by new section 24ZV(1)).

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

1. Why does the new section 24L permit entry into private premises in the absence of an emergency or a court warrant?

2. Why does the new section 24L refer generally to ‘the purposes’ of Parts 2 and 2A and the regulations of the Act, rather than setting out specific situations when specialist inspectors can enter non-residential premises housing animals?

3. Why does new section s24ZQ(1)(a) permit inspectors to require people to provide information in the absence of an emergency or a specific court warrant to that effect?

4. Why does the new section s24ZQ(1)(a) refer to questioning ‘to the extent that is necessary to determine whether an offence… has been or is about to be committed’ rather than setting out specific questions that an inspector may require a person to answer?

5. Will people questioned under new section 24ZQ(1)(a) be told of their right not to provide self-incriminatory information?

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

The Committee makes no further comment

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Electricity Safety Amendment Bill 2007

Introduced: 9 October 2007
Second Reading Speech: 11 October 2007
House: Legislative Assembly
Member introducing Bill Hon. Peter Batchelor MLA
Portfolio responsibility: Minister for Energy and Resources


Purpose

The Bill amends the Electricity Safety Act 1998 (the ‘Act’) to —

  • revise the arrangements relating to electricity safety management schemes that must be provided by major electricity companies (regulated distribution and transmission companies).

  • enable enforcement officers appointed by Energy Safe Victoria to serve notices on registered electrical contractors and licensed electrical installation workers compelling them to rectify non-compliant electrical work.

  • provide for the representation of both tram and train operators on the Victorian Electrolysis Committee.

Content and Committee comment

[Clauses]

[2]. Other than for Part 2 (clauses 4 to 11) the provisions in the Bill come into operation the day after Royal Assent. Part 2, subject to earlier proclamation comes into operation on 1 January 2010. Part 2 deals with electricity safety management schemes.

Note: From the explanatory memorandum - Part 2 will be proclaimed once relevant regulations are made.

[14]. Inserts a new section 45AB into the Act to provide that an enforcement officer may give a written rectification notice requiring the person responsible for carrying out non-compliant electrical installation work to rectify that work.

New section 45AB(4) provides that a person must comply with the requirements of a rectification notice and must not seek or receive any money in respect of costs arising from complying with the notice.

[15]. Amends section 69 of Act to provide that a person may apply to the VCAT for review of the decision of an enforcement officer to give a rectification notice in relation to electrical work and the requirements in a rectification notice. The clause also repeals section 69(7) of the Electricity Safety Act 1998 relating to applications for review of a decision on an accepted electricity safety manager. This repeal is consequential to the repeal of section 149A of the Electricity Safety Act 1998 (see clause 9 of the Bill).

[17]. Provides for the automatic repeal of this amending Act on 1 January 2011.

Charter Report

Keywords – Freedom from forced work – Requirement to rectify unsafe work –Normal civic obligations

Charter s.11(2) provides that people ‘must not be made to perform forced or compulsory labour.’ Charter s.11(3)(c) provides that this does not include ‘work or service that forms part of normal civic obligations.’

The Committee notes that clause 14, inserting a new section 45AB in the Act requires a person who installed work in breach of the Act or regulations made under the Act to comply with a written notice requiring rectification (without further payment), or be liable to conviction for an offence punishable by a fine. The Statement of Compatibility states that this provision:
will ensure that defective work that is unsafe is made safe as soon as possible and regardless of whether the consumer chooses to enforce his or her contractual rights. Electricity is inherently dangerous and unsafe electrical work creates significant risks to life and property: for example, from house fires caused by faulty wiring.

The Committee considers that rectifying a person’s own unsafe work in these circumstances ‘forms part of normal civic obligations’ and therefore clause 14 does not infringe the Charter’s freedom from forced work.

The Committee makes no further comment

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Equal Opportunity Amendment (Family Responsibilities) Bill 2007

Introduced: 9 October 2007
Second Reading Speech: 11 October 2007
House: Legislative Assembly
Member introducing Bill Hon. Rob Hulls MLA
Portfolio responsibility: Attorney-General


Purpose

The Bill amends the Equal Opportunity Act 1995 (the ‘Act’) to expand for the purposes of the Act the range of what may constitute discrimination against parents or carers in employment and employment-related areas.

The Bill requires an employer, a principal or a firm, in relation to work arrangements, not to unreasonably refuse to accommodate the parental or carer responsibilities of a person offered employment, an employee, a contract worker, a person invited to become a partner in a firm, or a partner in a firm. It will be discrimination under the Act for an employer, principal or firm to contravene this requirement.

Content and Committee comment

[Clauses]

[2]. The Bill will commence on a day to be proclaimed but not later than by 1 September 2008.

[6]. Amends section 7(1) of the Act which deals with the meaning of discrimination. The amended section 7(1) (underlined) of the Act will provide – 7(1) Discrimination means direct or indirect discrimination on the basis of an attribute or a contravention of section 13A, 14A, 15A, 31A, 51 or 52.

Note: New section 13A, 14A, 15A and 31A are inserted by clauses 7 to 10 below. Existing sections 51 and 52 of the Act respectively provide for discrimination in providing accommodation by refusing to allow alterations and refusing to allow guide dogs.

Explanatory memorandum

The Committee notes that the explanatory memorandum provides no advice for the reason for including sections 51 and 52 in the amendments made to section 7(1). The Committee draws attention to its Practice Note No. 1 in respect to the standard and content expected by the Committee of an explanatory memorandum.

The Committee will seek further advice from the Attorney-General.

[7]. Inserts a new section 13A to provide that an employer must not, in relation to the work arrangements of a person offered employment, unreasonably refuse to accommodate the responsibilities that the person has as a parent or carer. In this case, work arrangements means arrangements that would apply to the person as an employee, or arrangements applying to the workplace.

[8]. Inserts a new section 14A to provide that an employer must not, in relation to the work arrangements of an employee, unreasonably refuse to accommodate the responsibilities that the employee has as a parent or carer. In this case, work arrangements means arrangements applying to the employee or to the workplace.

[9]. Inserts a new section 15A to provide that a principal must not, in relation to the work arrangements of a contract worker, unreasonably refuse to accommodate the responsibilities that the contract worker has as a parent or carer. In this case, work arrangements means arrangements that apply to the contract worker or to the principal's workplace.

[10]. Inserts a new section 31A to provide that a firm comprising 5 or more partners must not, in relation to the work arrangements of a person invited to become a partner in the firm or a person who is a partner in the firm, unreasonably refuse to accommodate the responsibilities that the person has as a parent or carer.

[11]. Provides for the automatic repeal of this amending Bill on 1 September 2009.

The Committee makes no further comment

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Melbourne and Olympic Parks Amendment Bill 2007

Introduced: 9 October 2007
Second Reading Speech: 11 October 2007
House: Legislative Assembly
Member introducing Bill Hon. James Merlino MLA
Portfolio responsibility: Minister for Sports, Recreation and Youth Affairs


Purpose

The Bill amends the Melbourne and Olympic Parks Act 1985 (the ‘Act’) to consolidate land management arrangements in the Melbourne and Olympic Parks precinct and in respect to the permanent reservation of Gosch’s Paddock as a public park and its management by the Trust as a committee of management.

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill come into force on Royal Assent.

[12]. Provides for a new Part 5A (new sections 30A to 30F) to be inserted into the Act. New section 30B provides for the closure of sections of surplus declared road shown hatched on the plan in Part 7 of the Schedule.

[13]. Inserts new sections 31C and 31D to provide for the incorporation of additional lands into Olympic Park land and the process by which each identified parcel of land is to have all current legal encumbrances and management structures removed and a new reservation made.

The provisions of the Bill in relation to this land do not affect any easement created under section 339B of the Land Act 1958, before the creation of the Order.

New section 31D provides for the closure of a declared road and the reservation of unreserved former Army Barracks land for the purposes of sport, recreation and entertainment.

[14]. Inserts a new Part 6A (new sections 32A and 32B into the Act which provides for the permanent reservation of Gosch's Paddock as a public park.

New section 32A provides for the closure of a declared road on the land shown hatched in Part 13 of the Schedule, to a depth of 10 metres from the surface of the land.

New section 32B provides for the permanent reservation of land in Gosch's Paddock for the purposes of a public park.

Any easement created under section 339B of the Land Act 1958 will remain unaffected by an Order under this section.

[18]. Provides for the automatic repeal of this amending Act on the first anniversary of its commencement.

Charter Report

Keywords – Freedom of movement – Property – Management and consolidation of small parcels of land – Discharge of certain property interests

Charter s.12 provides that people have ‘the right to move freely within Victoria.’ Charter s.20 provides that people must not be deprived of property ‘other than in accordance with law.’ A deprivation of property will not breach Charter s.20 if it is for a non-arbitrary purpose and is proportionate to that purpose. Charter s.6(1) provides that only human beings have rights under the Charter.

The Committee notes that the Statement of Compatibility concludes that the following provisions limit Charter s.12:

  • clause 8(6) (amending s.7 of the Melbourne and Olympic Parks Act 1985) permits the Melbourne and Olympic Parks Trust to licence Gosch’s Paddock for uses that are ‘not substantially detrimental to’ its reservation as a public park; and

  • clauses 12 and 13 (inserting, respectively, Part 5A and new sections 31C & 31C) provide for defined land parcels to be reserved for the purposes of, respectively, ‘the national tennis centre’ and ‘sport, recreation and entertainment’, and for consequential changes in land ownership, management and registration.

The Committee observes that these changes involve very small areas of Victoria; do not appear to impose any significant constraints on Victorians’ ability to move between parts of Victoria that fall outside those areas; do not target any particular individual or group; and are consistent with normal management of public property. The Committee therefore considers that these changes do not engage the Charter’s freedom of movement.

The Committee also notes that clauses 12, 13 and 14 (inserting new sections 30A(3)(c), 30B(3)(c), 30D(3)(d), 31C(3)(b), 31D(3)(c), 32A(3)(c) & 32B(3)(c)) provide for the discharge of certain property interests in defined portions of land and do not provide for compensation. The Statement of Compatibility remarks that any deprivation of a natural person’s property caused by these provisions (which it incorrectly refers to as ‘clauses 11, 12 and 13’):
would not be arbitrary because it is part of a highly structured and circumscribed process relating to a limited number of small parcels of land.

The Committee refers to Parliament for its consideration the question of whether any deprivation of a natural person’s property under clauses 12, 13 and 14 is ‘in accordance with law’.

The Committee makes no further comment

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Port Services Amendment Bill 2007

Introduced: 9 October 2007
Second Reading Speech: 11 October 2007
House: Legislative Assembly
Member introducing Bill Hon. Tim Pallas MLA
Portfolio responsibility: Minister for Roads and Ports


Purpose

The Bill amends the Port Services Act 1995 to make provision for further powers as to dredging, make further provision for port fees, make provision for powers to restrict access to certain port lands and waters, and make provision for other matters.

Content and Committee comment

[Clauses]

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

[7]. Amends section 31(1) by replacing the word "spouse" with "partner" to broaden the operation of the provision (which is a prohibition on the making of loans to directors of port corporations) to include "domestic partner". This is to better accord with the Charter in respect to the right to recognition and equality before the Law.

The Committee notes this extract from the Second Reading Speech –

Charter of Human Rights

In accordance with the review of legislation being undertaken by government departments to ensure that it accords with the Charter of Human Rights and Responsibilities Act 2006, an amendment is being made to section 31(1) of the Port Services Act so that there is consistent treatment of domestic partners with spouses. This addresses an apparent oversight in not making these amendments in 2001 when discrimination based on marital status was removed in various pieces of legislation.

Strict liability offences – reverse onus to establish ‘reasonable excuse’ –freedom of expression – implied right of free political communication

[14]. Inserts a new Part 5A into the Act (new sections 83 to 88H) in respect to powers to restrict access to port areas.

New section 88B makes it an offence for an unauthorized person to enter or remain in a restricted access area or to cause a vessel to enter or remain there in contravention of a declaration. The offence has a penalty of 10 penalty units. It is a defence to show reasonable excuse for entering into or remaining in the area.

New section 88C creates two offences relating to interference with activities. First, it is an offence to interfere with or hinder or cause another person to interfere with or hinder the carrying out of works in a restricted access area. Secondly, it is an offence to interfere with or hinder or cause another person to interfere with or hinder the entry of an authorised person into a designated access area. In relation to each of the offences, it is a defence to show reasonable excuse for interfering or hindering.

Strict liability Offences – Implied right to free political communication

The Committee notes the strict liability offences in new sections 88B and 88C.

The Committee accepts that there may be circumstances where the proof of an evidentiary fact may be easily established by an accused person and where the prosecution may find it impossible to negative the existence of every conceivable defence.

The Committee notes the amendments sought may have implications in respect to the implied right of free political communication under the Federal Constitution and discusses this matter in the Charter Report below.

New section 88D creates two offences relating to the provision of information requested by a member of the police force.

New section 88E gives the Port of Melbourne Corporation and the Victorian Regional Channels Authority the ability to warn a person to leave any part of a restricted access area and deems the recommending authority to be the occupier of land for the purposes of section 9(1) of the Summary Offences Act 1966.

New section 88F empowers a member of the police force to take charge of a vessel and move or direct that another person moves the vessel to an appropriate place, when a person in charge of a vessel commits an offence under Part 5A within sight of the member of the police force.

[19]. Provides for the automatic repeal of this amending Act on 1 July 2009.

Charter Report

Keywords – Freedom of expression – Peaceful assembly – Restrictions on protesters’ access to areas and vessels in port waters and land – Restrictions necessary to permit port bodies to carry out statutory powers, functions and objectives – Reasonable limitations – Adequacy of statement of compatibility

Charter s.15(2) gives every person ‘the right to freedom of expression’ including the ‘the freedom to seek, receive and impart information and ideas of all kinds’ in any ‘medium chosen by him or her.’ Charter s.16(1) gives every person ‘the right of peaceful assembly.’ Charter s28(3)(a) provides that a statement of compatibility must state how a Bill is compatible with human rights.

The Committee notes that clause 14, inserting a new division 2 of Part 5A into the Port Services Act 1995, provides for the making of declarations that any part of certain port waters and land or an area surrounding any vessel in certain port waters is ‘an area to which access is restricted’.

The Committee notes that events or vessels in port waters or land may attract political protestors, for example the entry of a war ship to port waters (as mentioned in the second reading speech) or dredging work. The Committee also notes that new section 85, which provides that a declaration of a restricted access area may be specific to particular vessels, persons, purposes, times or activities, may permit a declaration that is specific to particular protesters, protest activities or protests in general. The Committee further notes that the High Court of Australia in Levy v Victoria (1997) 189 CLR 579 held that a law banning protesters from an area where a politically controversial activity will occur, and therefore preventing them from collecting information about that activity or drawing public attention (via television coverage of proximate protests) to it, engaged (but, in that instance, did not infringe) the Commonwealth Constitution’s freedom of political communication. The Committee therefore considers that clause 14 engages Charter ss 15(2) and 16(1).

The Committee observes that, under Charter s.15(2), freedom of expression ‘may be subject to lawful restrictions reasonable necessary… for the protection of… public order’ and that, under Charter s.7(2), all Charter rights may be subject to ‘such reasonable limits as can be demonstrably justified in a free and democratic society.’ The Committee notes that, under new section 84(3)(a), declarations of restricted access (including the specifications under new section 85) must not be made unless the Minister ‘is satisfied that the declaration is necessary to enable’ the Port of Melbourne Corporation or the Victorian Regional Channels Authority ‘to carry out its powers or functions and to give effect to its objectives under the Act.’ The Committee also notes that, from 1st January 2008, Charter s.38(1) will (subject to Charter s.38(2)) require the Minister to consider the Charter rights of Victorians (including the rights of protesters) when making or continuing a declaration. The Committee therefore considers that clause 14 is a reasonable limit on the Charter’s freedom of expression and right to peaceful assembly.

However, the Committee is concerned that the Statement of Compatibility does not discuss the compatibility of the new Part 5A with the Charter’s rights to freedom of expression (aside from a minor enforcement provision) and peaceful assembly. The Committee reiterates its view stated in Alert Digest No. 9 of 2007 that:

where there is a reasonable prospect that a provision in a Bill may test or infringe Charter compatibility that issue should be drawn to the attention of the Parliament and a reasoned, even if brief, analysis of why the provision is nevertheless considered compatible with the Charter should be outlined.

The Committee resolves to write to the Minister expressing its concern about this statement of compatibility.

Keywords – Reasonable limits on rights – Enforcement of restricted access areas – Movement – Privacy – Expression – Property – Self-incrimination

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 clause 14, inserting a new division 3 of Part 5A into the Port Services Act 1995, provides for the enforcement of restricted access areas created under the new division 2. These provisions are generally typical of enforcement measures in statutes.
The Statement of Compatibility identifies a number of provisions in the new division 3 that are said to engage the following Charter rights:

  • Movement (Charter s.12): a provision creating an offence of entering or remaining in a restricted access area without authorisation or a reasonable excuse (new section 88B);

  • Privacy (Charter s.13(a)), expression (Charter s15(2)) and self-incrimination (Charter s25(2)(k)): a provision requiring anyone in a restricted access area to provide his or her name, address, authority for being in the area, evidence of that authority and (where applicable) a certificate of authorisation at the request of the police (new section 88D);

  • Property (Charter s.25(1)): a provision permitting police to take charge of a vessel owned by a person who committed an offence and to move the vessel ‘to an appropriate place’ (new section 88F).

In each instance the Statement of Compatibility contends that the respective rights are not infringed, are balanced by children’s right to protection or are reasonable limits. 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

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Victorian Workers' Wages Protection Bill 2007

Introduced: 9 October 2007
Second Reading Speech: 11 October 2007
House: Legislative Assembly
Member introducing Bill Hon. Rob Hulls MLA
Portfolio responsibility: Minister for Industrial Relations


Purpose

The purpose of the Bill is to —

  • ensure that employers pay wages in money and to set out the method of that payment.

  • regulate the ability of an employer to make deductions from an employee's wages.

  • provide for enforcement mechanisms and remedies if an employer, fails to pay an employee's wages in money; or unlawfully deducts an amount from an employee's wages; or terminates, or threatens to terminate, an employee's employment or prejudicially alters an employee's position because the employee is entitled to, or seeks to, exercise a right under this Act.

  • amend the Public Sector (Union Fees) Act 1992 and the Outworkers (Improved Protection) Act 2003.

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill comes into operation on proclamation but not later than by 1 December 2008.

[6]. Sets out the requirements for the payment of employees' wages and [7] sets out the circumstances in which deductions can lawfully be made from wages.

[8]. Sets out the requirements of a written authorisation to make deductions.

[9]. Sets out circumstances in which a deduction is taken not to be authorised when it was obtained as a result of duress or coercion on the part of the employer; where the authorisation was not otherwise freely given by the employee; where the employee is a child and the authorisation has not been consented to a parent or guardian; or where the deduction is unreasonable in all the circumstances.

[10]. Provides that an employer must not deduct any amount from a relevant employee's wages (even with the employee's consent) certain fees or costs or the provision of certain goods and services.

[11]. Provides that any term of a contract or agreement (other than an industrial instrument) is void to the extent that it is contrary to or inconsistent with anything in the Bill or regulations made under the Bill or purports to exclude the Bill or its regulations. An inconsistent provision in an agreement will prevail over the legislation for 6 months after the commencement of the Act (also refer to transitional provision in clause 25).

[12]. A court may order an employer to pay a civil penalty and or, pay an employee payment or reimbursement.

[20]. An employer must not terminate or threaten to terminate or alter the position of an employee to the employee's prejudice because the employee is entitled to or seeks to exercise any entitlement or other right under the Bill.

Reverse onus – evidentiary burden – presumption of innocence

[23]. Provides that where application is made in respect of a contravention of clause 6 and the affected employee is dead, there is a reversal of the evidentiary onus in any proceedings such that an employer bears the onus of presenting evidence that the payment in kind was duly authorised and did not form part of the employee's wages.

Where application is made in respect of a contravention of clause 7 or 10 and the affected employee is dead, there is a reversal of the evidentiary onus in any proceedings such that an employer bears the onus of presenting evidence that the deduction from wages was lawful.

Reverse onus – evidentiary fact to be established by party not ordinarily obliged to establish a fact in proceedings.

The Committee notes that the section provides for a reverse onus of proof in certain situations. The Committee notes that a similar provision is already included in the Outworkers (Improved Protection) Act 2003. (Refer to Charter report below).

The Committee notes that there may be special circumstance where the proof of certain evidentiary facts may be more conveniently established by a party to proceedings who is not ordinarily obliged to bear the evidentiary burden of establishing a fact(s). In such circumstances it may be permissible to allow a reverse onus provision to prevail.

The question whether a reverse onus provision is appropriate in the circumstances is a matter for the Parliament to consider.

[25]. Is a transitional provision that will permit non-compliant agreements to run for 6 months after the commencement of the legislation. Further this Act has no affect on any proceedings commenced or concluded before the commencement of this Act.

[26]. Amends the Public Sector (Union Fees) Act 1992 to require that public sector union fee deductions must also comply with this Act.

[27]. Amends the Outworkers (Improved Protection) Act 2003 to provide that an outworker is an employee for the purposes of this Act.

Charter Report

Keywords – Reasonable limits – Protection of children – Wage protection – Age discrimination – Privacy – Presumption of innocence

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.’ Charter s.17(2) provides that every child has the right ‘to such protections as is in his or her best interests.’

The Committee notes that the Bill provides for protections of the wages of workers. The provisions are typical of protective measures in employment laws.

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

  • Age discrimination (Charter s.8(3)) and privacy (Charter s.13(a)): a provision requiring written parental consent for wage deductions in the case of minor employees (clause 9).

  • Presumption of innocence (Charter s.25(1)): provisions requiring employers charged with offences concerning wages of employees who have since died to provide evidence capable of supporting an inference that the wages were paid in money and that any deductions were lawful (clause 23).

In each instance the Statement of Compatibility contends that the respective rights are not infringed, are balanced by children’s right to protection or are reasonable limitations. 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

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Scrutiny of Acts and Regulations Committee
Parliament of Victoria