Scrutiny of Acts and Regulations Committee

Alert Digest No 14 of 2007

Ministerial Correspondence

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Crimes Amendment (Rape) Bill 2007

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

Committee’s Comment

Keywords – Protection of families – Incest – Defence of compulsion – Widening of defence – Whether a law fails to protect families in some circumstances – Prospective law – Defence of compulsion limited by other party’s incorrect belief

Charter s17(1) provides that families ‘are entitled to be protected by society and the State.’ The Committee observes that Charter s17(1) obliges the State to protect families and that a Bill may be incompatible with this obligation if it fails to protect families in some circumstances.

The Committee notes that s44(6) of the Crimes Act 1958 provides that people who are compelled to engage in an act of sexual penetration with a family member are not guilty of incest. The Committee considers that this defence protects families, by reducing stigma and the threat of punishment for non-consenting participants in incest. However, the Committee observes that this protection is limited by s44(6A)(b), which provides that the defence of compulsion is only available when the person who compelled the victim to engage in incest was aware that the victim might not be consenting to it.

The Committee notes that clause 8 amends s44(6A)(b) to make the defence available when the person who compelled the victim to engage in incest gave no thought as to whether or not the victim was consenting. While the Committee considers that this change extends the protection offered by the law to non-consenting participants in incest, the Committee is concerned that clause 8 is restricted (by clause 9, inserting a new s609 into the Crimes Act 1958) to incest alleged to occur after the commencement of clause 8. The Committee is further concerned that the defence of compulsion will remain (under the amended s44(6A)(b)) unavailable to non-consenting participants in incest where the other person mistakenly believed that the victim was consenting.

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

1. Should clause 8, which widens a defence to the crime of incest, be applied retrospectively, rather than (as clause 9 presently provides) only prospectively?

2. Should s44(6A)(b) of the Crimes Act 1958, which has the effect of making some non-consenting participants in incest guilty of that offence, be removed, rather than (as clause 8 presently provides) retained with amendments?

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

Minister’s Response

Thank you for your letter dated 19 September 2007 regarding your Committee's consideration of the Crimes Amendment (Rape) Bill 2007. You sought further advice on whether clause 8 should be applied retrospectively or whether section 44(6A)(b) of the Crimes Act 1958 should be removed rather than retained with amendments as proposed in the Bill.

As the Committee noted in its report (Alert Digest No. 12 of 12007), section 44(6A)(b) formed part of amendments made to the Crimes Act 1958 by the Crimes (Sexual Offences) Act 2006. This Act made amendments to a range of sexual offences and for consistency, similar definitions were utilised when referring to matters relating to consent.

I agree with the Committee that the amendment to section 4 has the effect of making the compulsion exception unavailable to non-consenting participants in incest where that person cannot prove that the person who compelled them to participate in the act was aware of the actual or possible absence of consent. This was not an intended consequence of the 2006 amendments and, consequently, the Crimes Amendment (Rape) Bill 2007 will be amended to removed section 44(6A)(b).

This amendment will commence operation from the day after it receives the Royal Assent, ie: at the earliest opportunity without giving the amendment retrospective operation in relation to trials that have already commenced. The amendment would apply to a person charged with incest whose trial has not yet commenced at the day after the amendment receives Royal Assent.

Parliamentary Counsel has advised that it would be undesirable to backdate this amendment to have effect from 1 December 2006 because this would have the potential to inappropriately interfere with the independence of the courts should a trial already have commenced.

I am advised that, owing to the way in which the prosecutorial discretion is exercised, it is unlikely that any person has actually been charged in circumstances where retrospective operation of this provision would render assistance. However, if a person has been charged, it is even more unlikely that the trial of a person in these circumstances would have commenced.

I thank the Committee for bringing this issue to my attention.

ROB HULLS MP
Attorney-General

8 October 2007

The Committee thanks the Attorney-General for this response.


 

Energy Legislation Further Amendment Bill 2007

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

Committee’s Comment

Retrospective application – validation

[35]. Inserts new section 20A which retrospectively validates a relevant Order in Council published on 25 August 1994 made under section 11 of the Gas and Fuel Corporation (Heatane Gas) Act 1993. Section 12 of the Act deals with the creation of statutory easements and covenants that may involve property rights. The Committee refers to the Charter report below.

Charter report

Keywords – Right to property – Force and effect may be given to Order of Governor in Council – Order’s operation triggers statutory variation of property rights – No compensation payable – Whether in accordance with law

Charter s.20 provides that people must not be deprived of property ‘other than in accordance with law.’ Charter 6(1) provides that only human beings have rights under the Charter.

The Committee notes that clause 35 (inserting a new section 20A into the Gas and Fuel Corporation (Heatane Gas) Act 1993) may give force and effect to an Order of the Governor in Council (providing for the transfer of the Heatane pipeline) purportedly made in 1994 under s.11 of that Act. The Committee observes that s.12 of that Act (read together with s.3, defining ‘appointed day’) provides for the extinguishment, variation and creation of certain easements and restrictive covenants when an order made under s.11 comes ‘into operation’ and that ss.13-16 and 18-19 make further provision for the legal effect of these changes. The Committee is concerned that, although the parties to the transfer of the pipeline (the Gas and Fuel Corporation of Victorian and Elgas Reticulation Pty Ltd) are corporations, non-corporate individuals may be amongst the third parties whose property may be affected by ss.12-16 and 18-19 of the Act.

The Committee also notes that s.20 of the existing Act provides that no compensation is payable by certain parties ‘in respect of the extinguishment, creation or variation by this Act of an interest, right, privilege or obligation over land.’ The Committee considers that the absence of compensation may be relevant to whether or not a deprivation of property occasioned by clause 35 is disproportionate to its purpose and, therefore, ‘other than in accordance with law’ under the Charter’s right to property.

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

1. Will clause 35, read in conjunction with the existing provisions of the Gas and Fuel Corporation (Heatane Gas) Act 1993, impose easements or restrictive covenants on (or otherwise deprive) the property of any non-corporate individual?

2. What is the purpose of any such deprivation?

3. What is the purpose of preventing the payment of compensation to such a person?

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

Minister’s Response

I refer to your letter dated 9 October 2007.

Answers to Questions Raised by the Committee

1. Will clause 35, read in conjunction with existing provisions of the Gas and Fuel Corporation (Heatane Gas) Act 1993, impose easements or restrictive covenants on (or otherwise deprive) the property of any non-corporate individual?

Clause 35 of the Bill will not impose easements or restrictive covenants on (or otherwise deprive) the property of any non-corporate individual. It will merely transfer pre-existing rights of the Gas and Fuel Corporation of Victoria (GFCV) to Elgas Reticulation Pty Ltd.

2. What is the purpose of any such deprivation?

Please refer to answer to Question 1.

3. What is the purpose of preventing the payment of compensation to such a person?

Please refer to answer to Question 1.

Background

Sale in 1993 by GFCV to Elgas Reticulation Pty Ltd facilitated by enabling legislation

    • In 1993 the GFCV sold its heatane gas pipeline to Elgas Reticulation Pty Ltd.

    • The Gas and Fuel Corporation (Heatane Gas) Act 1993 (Act) was enacted to enable the sale.

    • The Act provided that transfer of the pipeline to Elgas Reticulation Pty Ltd was to take effect on publication in the Victorian Government Gazette of an Order in Council

Intended transfer in 1994 of pipeline pursuant to legislation

    • An Order under the Act was published in 1994 (Order). The Order was intended to transfer ownership of the pipeline to Elgas Reticulation Pty Ltd.

    • The Order did not however, serve its intended purpose of transferring legal ownership of the pipeline from GFCV to Elgas Reticulation Pty Ltd because the Order referred to Elgas Limited as transferee of the pipeline instead of Elgas Reticulation Pty Ltd.

Intended transfer in 1994 of easement pursuant to legislation

    • The Act also provided for creation by Order in Council of a statutory easement in favour of GFCV over property situated along the pipeline route, and for the owner of the pipeline to be entitled to the statutory easement.

    • The statutory easement was a replacement for an existing common law easement in favour of GFCV in relation to the same property.

    • The validity of the creation of the statutory easement is not in question.

    • The statutory easement was not however transferred from GFCV to Elgas Reticulation Pty Ltd as ownership of the pipeline was not transferred from GFCV to Elgas Reticulation Pty Ltd.

Effect of the 2007 Bill

    • Clause 35 of the Bill provides that the 1994 Order has effect as if it always referred to Elgas Reticulation Pty Ltd.

    • This will enable transfer of the legal ownership of the pipeline, together with the statutory easement, to Elgas Reticulation Pty Ltd as at the date of the Order in 1994.

JOHN LENDERS MP
Treasurer

23 October 2007

The Committee thanks the Treasurer for this response.


 

Justice Legislation Amendment Bill 2007

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

Committee’s Comment

The Committee 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’ – Retrospective validation – Existing causes of action

The Committee notes that clause 20 amplifies and clarifies the regulation making power currently found in section 112(1)(k). It is not clear to the Committee that any existing regulation made under that power, absent the validation clause, would be held invalid were it to be challenged in proceedings.

In the circumstances the Committee notes the retrospective validation seeks to avoid doubt as to the legal validity of existing regulations.

The Committee will however seek further advice from the Minister whether he is aware of any existing proceeding challenging the existing regulations.

Pending further advice the Committee draws attention to the provisions

Keywords – Right to security – Offence to carry or possess a dangerous article in a public place without a lawful excuse – Removal of self-defence as a lawful excuse – Perceived immediate threats – Isolated or unsafe public places

The Committee notes that the Statement of Compatibility does not address the compatibility of clause 7 (amending s7 of the Control of Weapons Act 1990) with human rights. Charter s21(1) provides that everyone has a right to ‘security’. The Committee considers that this right extends, not only to security from state conduct, but also to security from the conduct of others.

The Committee notes that s7(3) & (4) of the Control of Weapons Act 1990 presently provide that self-defence is a lawful excuse to a charge of carrying or possessing a dangerous article. The Committee observes that the High Court has ruled that an identical provision in New South Wales does not authorise carrying or possessing an article merely ‘for the purpose of “self-defence”’; rather, ‘[t]here must be a perceived threat, and its immediacy is also a relevant factor.’ (Taikato v R (1996) 186 CLR 454, 467) The Committee considers that the right to security under s21(1) includes a right to take any steps reasonably necessary to defend oneself from such a perceived threat.
The Committee notes that clause 7, which removes self-defence as a lawful excuse to this offence, makes it unlawful for anyone who perceives an immediate threat in a public place to pick up or modify an article to defend himself or herself. The Committee observes that the only lawful options that will be available to such a person will be to call for help, run away or defend themselves with their hands or any items that they are carrying for another purpose. These options may not be sufficient to overcome an immediate threat to personal security in some instances, particularly for people who live or work in isolated or unsafe places. The Committee is concerned that a law making it an offence for such a person to pick up, e.g. a brick, to fend off a potential attack, may deny that person an effective means of temporarily securing themselves against possible harm while they seek help or safety. The Committee therefore considers that the removal of self-defence as a lawful excuse for carrying or possessing a dangerous article may infringe the right to security from perceived immediate threats.

The Committee notes the following comment from the second reading speech:
To further safeguard public safety, this bill now removes self-defence as a lawful excuse for carrying dangerous articles. A ‘dangerous article’ is any item (for example a broken bottle or a pair of scissors) that is adapted or carried for use as a weapon. It is not appropriate in our society that such articles should be carried solely for self-defence when their use could result in serious injury or death.

The Committee observes that, as the Statement of Compatibility does not address the compatibility of clause 7 with human rights, it does not address whether clause 7 strikes a reasonable balance between different aspects of the right to security under Charter s21(1). The Committee will seek further advice from the Minister concerning the following matters:

1. What impact will removal of self-defence as a lawful excuse for possessing or carrying a dangerous article have on the security of people who perceive immediate threat of harm in an isolated or unsafe public place?

2. What is the extent of the risk to public safety posed by permitting people to temporarily carry an article as a weapon in a public place to defend themselves from a perceived immediate threat of harm?

3. Are there less restrictive means to overcome this risk than the removal of self-defence as a lawful excuse for possessing or carrying a dangerous article?

Pending the Minster’s response, the Committee refers to Parliament the question of whether or not clause 7 strikes a reasonable balance between people’s Charter right to be secure from being harmed by articles modified or carried as a weapon and people’s Charter right to secure themselves by carrying such articles when they perceive an imminent threat of harm.

Keywords – Right to correspondence – Freedom of expression – Prisoners – Censorship of letters that may be regarded by a victim as distressing or traumatic – Letters sent to prisoners – Whether proportional – Whether predictable

Charter s13(a) gives people the right not to have their ‘correspondence… unlawfully or arbitrarily interfered with’. Charter s15(2) gives people the ‘right to freedom of expression’, including the ‘freedom to seek and impart information and ideas of all kinds’. The Committee observes that the rights in the Charter extend to all human beings, including prisoners. The Committee notes that the European Court of Human Rights has held that right of prisoners to correspondence differs from the rights of non-prisoners only to the extent that is necessitated by ‘the ordinary and reasonable requirements of imprisonment’ (Golder v United Kingdom [1975] ECHR 1, [45].)

The Committee considers that clause 17, amending s47D(1) of the Corrections Act 1986 to extend an existing scheme for censoring letters sent to and from prisoners, may interfere with prisoners’ and their correspondents’ rights to correspondence and freedom of expression. However, the Committee notes that the rights to correspondence and freedom of expression are not absolute. In particular, all people’s right to freedom of expression ‘may be subject to lawful restrictions reasonably necessary… to respect the rights… of other persons’. The Committee observes that clause 17 has such a purpose: the protection of the rights of victims of crime. The Committee considers that clause 17 will be compatible with human rights if it is a proportionate and predictable means of protecting victims of crime.

The Committee notes that clause 17 gives prison governors and their delegates the power to censor any letter whose contents ‘may be regarded as distressing or traumatic to a victim.’ The Committee observes such letters may be censored or intercepted, regardless of any other characteristics of the letter, or of the prisoner or the other party to the correspondence or of any victim. The Committee notes that decisions under the European Convention on Human Rights and Fundamental Freedoms have emphasised that prison censorship schemes must be narrowly tailored to their intended purposes, as letters provide prisoners with an important link to the outside world. This is especially the case for letters between family members and letters airing a perceived injustice.

The Committee notes that censorship of prisoners’ letters is discretionary and that (from next year) prison governors may be obliged by Charter s38(1) (subject to the limitation in Charter s38(2)) to consider prisoners’ rights to correspondence and free expression when deciding whether or not to censor any particular letter. The Committee is nevertheless concerned that the test of whether a prison governor reasonably believes that a letter’s contents may be regarded by a victim as distressing or traumatic may cover too broad a range of letters to be considered proportionate to the purpose of protecting victims. The Committee is also concerned that, without statutory or publicised administrative guidelines about how the discretion will be exercised, prisoners and their correspondents may be unable to predict how the scheme will operate in practice.

The Committee further notes that clause 17 applies, not only to letters sent by prisoners, but also to letters sent to prisoners. The Committee notes the following comment in the Statement of Compatibility about such letters:

It is also in accordance with the interests of justice that correspondence to prisoners be stopped or censored if it would be regarded by a victim as traumatic or distressing… [A]s envisaged by s5(1) of the Sentencing Act 1991, three important objectives associated with custodial sentences are that prisoners are rehabilitated; the potential for recidivism is reduced; and the community is protected. It is therefore not ‘unjust’ to stop or censor correspondence that may jeopardise these outcomes by adding to a victim’s distress or trauma; or glorifying, encouraging or excusing criminal behaviour.
The Committee observes that the contents of letters sent into a prison cannot add to a victim’s distress or trauma unless the victim is informed of those contents. The Committee further observes that the existing s47D(1) of the Corrections Act 1986 already permits prison governors to censor all letters into and out of prisons that they reasonably believe is a threat to prison security; may be of a threatening or harassing nature; may be used to further an unlawful activity or purpose; or contains indecent, abusive, threatening or offensive matter.

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

1. What information will prisoners and their correspondents be given concerning the way that prison governors and their delegates will exercise their discretion to censor letters whose contents may be regarded by victims as distressing or traumatic?

2. Given the existing powers of censorship under s47D(1), what is the purpose of giving prison governors a further ground to censor letters sent to prisoners?

Pending the Minster’s response, the Committee refers to Parliament the question of whether clause 17 is a proportionate and predictable limit on the rights to correspondence and freedom of expression of prisoners and their correspondents.

Keywords – Right not to be arbitrarily deprived of life – Prison escapees – Validation of regulations purportedly authorising the discharge of firearms by prison officers – Discharge of firearms as a last resort to prevent escape – Non-violent escapees – Proportionality – Reasonable limits

Charter s9 provides that everyone has ‘the right not to be arbitrarily deprived of life.’ The Committee observes that the rights in the Charter extend to all human beings, including prison escapees and those who aid them.

The Committee notes that clause 20 (inserting a new section 112B into the Corrections At 1986) may operate to give force and effect to regulations in the Corrections Regulations 1998 that may presently be of no force and effect. This may include reg 10, which purports to permit prison officers to ‘discharge a firearm at’ an escaping prisoner or a person reasonably believed to be aiding him or her in certain circumstances.

The Committee notes that discharging a firearm at a person is likely to deprive him or her of life. The Committee observes that reg 10 permits a prison officer to discharge a firearm to prevent an escape regardless of the offence that the prisoner is in custody for, his or her security classification or the likelihood that the prisoner will commit violent offences if he or she escapes. So, clause 20 may authorise a prison officer to shoot a low security prisoner who is imprisoned for a non-violent offence and attempts to escape.

The Committee notes that reg 10 imposes other constraints on the discharge of firearms, including avoiding dangers to others, giving oral warnings if practicable and only shooting as a last resort. The Committee also notes that reg 10 does not oblige prison officers to discharge firearms against escaping non-violent offenders and observes that prison officers would surely choose to refrain from doing so. The Committee further notes the comments in the Statement of Compatibility that officers are ‘trained to appropriately assess security risks and apply the use of force at a level that is proportionate to their relevant risk’ and the government’s intention stated in the Second Reading Speech to make new regulations limiting the circumstances when firearms may be issued. However, the Committee considers that the compatibility or otherwise of clause 20 with the right not to be arbitrary deprived of life depends on what reg 10 currently authorises, rather than possible future contingences, such as discretions exercised during an escape and the proposed revision of the regulations.
The Committee observes that, whilst the international law of human rights permits the use of force on escaping prisoners, that permission is strictly limited to force that is proportional to the threat that the prisoner poses to others. In particular, firearms may only be used on persons who present a grave threat to life and the intentional use of firearms is only permitted when strictly unavoidable in order to protect life. The Committee therefore considers that clause 20, in its potential application to reg 10, may be incompatible with the rights of prisoners and others not to be arbitrarily deprived of life. The Committee’s concern relates only to reg 10 in so far as it authorises the discharge of a firearm where an escort officer does not believe on reasonable grounds that the prisoner poses a significant threat of death or injury to others.

Charter s7(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 the following comment in the Statement of Compatibility about reg 10’s application to escaping prisoners who do not present a danger to the community:

The issuance and hence, potential use of firearms also serves the important purpose of deterring prisoners who might otherwise contemplate escaping custody. Given the rarity of the actual use of firearms, the greatest utility of firearms in the corrections context is this deterrent effect, rather than their actual use. By corollary, without the authority to use firearms it is likely that there would be an increase in the number of prisoners who attempt to escape from custody and of the willingness of other people to assist them in doing so. This would then pose an increased risk to the safety of officers, prisoners and the community; and compromise the good order and security of prisons.
The Committee will seek further advice from the Minister concerning the following matters:

1. Will the proposed new regulations authorise the discharge of firearms by a prison officer in circumstances where he or she does not believe on reasonable grounds that a prisoner poses a significant threat of death or injury to others?

2. Taking account of the time required to draft the proposed new regulations and train prison officers to operate within them, when are the new regulations expected to come into operation?

Pending the Minister’s response, the Committee refers to Parliament the question of whether or not reg 10, in so far as it authorises prison officers to discharge firearms as a last resort to prevent a non-violent offender from escaping, strikes an appropriate balance between the rights of Victorians to security and the rights of escapees and those aiding them not to be arbitrarily deprived of life.

Minister’s Response

Thank you for your letter of 19 September 2007 in which you seek advice in relation to amendments to the Control of Weapons Act 1990 and the Corrections Act 1986 contained in the Justice Legislation Amendment Bill 2007.

I will deal with the amendments to the Control of Weapons Act 1990 and then the Corrections Act 1986.

Amendments to the Control of Weapons Act 1990

The Justice Legislation Amendment Bill 2007 amends the Control of Weapons Act 1990 to increase most penalties under that Act; treat the carrying of weapons in, or in the immediate vicinity of, licensed premises as an aggravating circumstance with higher penalties; ensure that dangerous articles cannot be carried solely for the purpose of self-defence in case of attack; and clarify the obligations of corporations, partnerships and their officers and employees authorised to handle prohibited weapons or body armour.

I note that the Committee has sought advice in relation to the removal of the defence of possession of dangerous articles for the purpose of self-defence.

At the outset, I should clarify that the Bill does not remove self-defence as a defence to the offence of carrying or possessing a dangerous article. Rather, the Bill only removes the ability to arm oneself with a dangerous article in case of an attack, where there is no actual or threatened attack.

In this regard, a distinction needs to be drawn between the defence of self-defence and the defence of possession for the purpose of self-defence contained in s7(3) of the Control of Weapons Act 1990.

The defence of self-defence entitles a person to use reasonable force to defend him/herself from unlawful violence, provided the person honestly believes that what he or she does is necessary to defend him/herself and provided a reasonable person in that situation would not have regarded the acts as out of proportion to the danger being faced.

Unlike the defence of self-defence, the defence of possession for the purpose of self-defence under the Control of Weapons Act 1990 does not require an actual or threatened attack. Rather, it enables a person to carry a weapon in case of attack.
The defence of 'lawful excuse' encompasses a range of defences, including self-defence. This is confirmed by:

    • the law in relation to the defence of 'lawful excuse' in respect of the offence of assault in s31 of the Crimes Act 1958 (see para s 31.50 in Bourke's Criminal Law); and

    • the judgement of the High Court in Taihzto v R. In that case, the High Court of Australia confirmed that the defence of 'lawful purpose' included self-defence in respect of an actual or threatened attack, but did not include arming oneself on the off chance of being attacked. The Court was considering a provision that did not expressly affirm a defence of self-defence (the NSW provision as it stood in 1992 when the offence was committed was not identical to the Control of Weapons Act 1990 provisions). The only defences available were 'lawful purpose' and 'reasonable excuse'. The Court made clear that the defence of self-defence was incorporated within the defence of lawful purpose.

I note the Committee's observation in its Charter Report that the Statement of Compatibility for the Bill does not address whether clause 7 of the Bill strikes a reasonable balance between different aspects of the right to security under Charter s21(1).

On this point, I consider that the Bill protects the right under Charter s21(1) rather than limits it, as the Bill reduces the risk of harm posed by dangerous articles being present in public places, but does not remove the defence of self-defence.

I now turn to the Committee's questions.

What impact will removal of self-defence as a lawful excuse of possessing or carrying a dangerous article have on the security of people who perceive immediate threat of harm in an isolated or unsafe public place?

The repeal of s7(3) of the Control of Weapons Act 1990 will have no impact in this situation. As indicated above, the defence of self-defence remains a 'lawful excuse' and therefore a defence to a charge of possessing or carrying a dangerous article in a public place. For example, the following persons would have a good defence to such a charge:

    • a woman who is confronted by an attacker who uses scissors she has in her purse, or picks up and breaks a bottle or some other item and uses it as a weapon to defend herself; or

    • a builder who has a screwdriver in his or her toolkit and uses the screwdriver as a weapon to defend him/herself against attack.

What is the extent of the risk to public safety posed by permitting people to temporarily carry an article as a weapon in a public place to defend themselves from a perceived immediate threat of harm?

There will always be a risk to public safety in permitting people to carry an article as a weapon in a public place. As the High Court in Taikato v R correctly identified, even if a person does not intend to use a dangerous article, its mere presence in a public place enables it to be used to cause harm.

The Bill seeks to reduce this risk by removing the ability to arm oneself with a dangerous article for the sole purpose of defending a possible attack. However, the Bill does not limit the ability of people to convert items already in their possession, or to pick up items, in order to use them to defend themselves against an actual or threatened attack.

Are there less restrictive means to overcome this risk than the removal of self-defence as a lawful excuse for possessing or carrying a dangerous article?

By removing the ability of persons to carry or possess dangerous articles where there is no immediate threat, the Bill protects the right to life, liberty and security, rather than limits it. To the extent that it may be necessary to use a weapon to defend oneself from an actual or threatened attack, that ability to do so is preserved within the defence of lawful excuse, which incorporates self-defence.

Amendments to the Corrections Act 1986

The Justice Legislation Amendment Bill 2007 amends the Corrections Act 1986 to enable prison Governors to stop or censor any letter to be sent by a prisoner to, or sent to a prisoner by, any person if reasonably believed that the letter contains material that may be regarded by a victim as distressing or traumatic. The Bill also creates a new offence where a prisoner sends a letter to a victim, or a family member of a victim, if the prisoner knows or ought reasonably to have known that the letter contains material that may be distressing or traumatic to the victim or any other victim who might reasonably receive it.

What information will prisoners and their correspondents be given concerning the way that prison Governors and their delegates will exercise their discretion to censor letters whose contents may be regarded by victims as distressing or traumatic?

Currently, prisoners and their correspondents are not given any information concerning the exercise of a governor's discretion to stop or censor letters by or to prisoners under section 47D of the Corrections Act 1986. This is because the exercise of any discretion is considered to be unfettered. Corrections Victoria operational procedures about prisoner communications provide some advice about the circumstances in which letters may be stopped or censored under section 47D of the Corrections Act 1986 and notification of prisoners when their correspondence is stopped or censored.

However, Corrections Victoria will consider a review of operational procedures about prisoner communications. This may include guidance on how this discretion must be examined in the light of the obligations on public authorities in section 38 of the Charter. This provides that it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right. In discharging the obligation in section 38, Governors would need to consider whether it would be a reasonable limitation on prisoners' rights to privacy and freedom of expression to stop or censor their correspondence.

Given the existing powers of censorship under s47D(I), what is the purpose of giving prison Governors a further ground to censor letters sent to prisoners?

Clause 17 of the Justice Legislation Amendment Bill extends prison Governors' powers under section 47D of the Corrections Act 1986 to intercept or censor letters sent by a prisoner to, or sent to a prisoner by, any person that a Governor reasonably believes may cause distress or trauma to a victim or their family (ie by glorifying, encouraging or excusing criminal behaviour). The purpose of this amendment is to assist in achieving three important objectives associated with custodial sentences: that prisoners are rehabilitated, the potential for recidivism is reduced and the community is protected.

Is the retrospective validation of a decision made by the prison Governor to stop the letter that Julian Knight wrote, which was the subject of the decision of the Supreme Court in Knight v. Anderson, warranted in the circumstances?

I note that the Committee referred this question to Parliament. I also offer the following response. Clause 17 of the Bill will apply retrospectively to 1 July 2005. The retrospective application of this amendment is intended to validate the prison governor's decision to stop a letter that Julian Knight wrote to a victim, and to overcome the effect of the recent judgement of the Supreme Court case of Knight v. Anderson (2007) VSC 278. Its retrospective application is considered necessary to protect victims and their families from the severe and on-going distress and trauma that is likely to be inflicted by the receipt of a letter from the perpetrator in this case. However, this amendment will not affect the rights of an applicant bringing judicial review proceedings, in respect of a letter stopped or censored by a prison governor, to a fair and public hearing before a competent and independent court.

Is clause 17 a proportionate and predictable limit on the rights to correspondence and freedom of expression of prisoners and their correspondents?

I note that the Committee referred this question to Parliament. I also offer the following response. This amendment allows Governors' to the exercise their discretion to stop or censor letters either by or to prisoners on a case-by-case basis, based on his or her reasonable belief that such correspondence may be regarded by a victim as traumatic or distressing and having regard to section 38 of the Charter. These processes will ensure that any interference with prisoner correspondence will be proportionate to the risk that a victim would be distressed or traumatised by such correspondence and reasonably predictable whilst allowing for a degree of discretion to be applied in each particular case.

Does clause 18 meets the test in Charter s.7(2), including whether or not there is a 'less restrictive means reasonably available to achieve the purpose' of preventing offenders from causing distress or trauma to victims by circumventing the censorship regime?

I note that the Committee referred this question to Parliament. I also offer the following response. Clause 18 does not limit the right to privacy in section 13(a) of the Charter as the interference with correspondence is not 'arbitrary' or 'unlawful'. This amendment also falls within the exception envisaged by section 15(3) of the Charter, and thus does not limit the right to freedom of expression. The measures proposed are considered to be appropriate and necessary to ensure that victims are prevented from further distress and trauma received from unwarranted correspondence from the victim's perpetrator or another prisoner. There is no practicable less restrictive means of achieving this objective.

Is the Minister aware of any existing proceeding challenging the existing regulations?

The Justice Legislation Amendment Bill 2007 also amends the Corrections Act 1986 to confirm existing powers set out in the Corrections Regulations 1998 in relation to the issue to, and use of, firearms by prison officers. There is no existing proceeding challenging the current regulations. However, the validity of the powers of prison officers to use firearms was raised in the Supreme Court case of DPP v. Federico [2006] VSC 24. This case involved the murder trial of a prison officer resulting from an incident in which the officer shot and lethally wounded a remand prisoner whilst he was trying to escape from St Vincent's Hospital. In this case, Justice Cummins suggested that regulation 10 of the Corrections Regulations 1998 could be invalid as it may extend beyond the regulation making power in the Corrections Act 1986 or beyond common law powers to use force without clear statutory authority.

Will the proposed new regulations authorise the discharge of firearms by a prison officer in circumstances where he or she does not believe on reasonable grounds that a prisoner poses a significant threat of death or injury to others?

I also intend my officers to review the Corrections Regulations 1998 with a view to making new regulations that set out the circumstances in which firearms are issued to prison officers pursuant to the existing operational framework. These new regulations will reflect current practice, whereby firearms are issued for the escort of high and maximum security prisoners, and otherwise only in emergency situations, or where safety and security considerations require it. This would ensure that the circumstances in which firearms are issued are proportionate to the safety risk presented. This also ensures that the power to use firearms is compatible with section 9 of the Charter (right to life).

Taking into account of the time required to draft the proposed new regulations and train prison officers to operate within them, when are the new regulations expected to come into operation?

Clauses 19 and 20 of the Justice Legislation Amendment Bill 2007 have a default commencement date of 1 May 2008. It is anticipated that amendments to the Corrections Regulations 1998 will commence operation in conjunction with the legislative amendments either on or before 1 May 2008.

Whether or not reg 10, in so far as it authorises prison officers to discharge firearms as a last resort to prevent a non-violent offender from escaping, strikes an appropriate balance between the rights of Victorians to security and the rights of escapees and those aiding them not to be arbitrarily deprived of life.

Clause 20 of the Bill aims to ensure the security and safety of others in the community and within the corrections environment and meets community expectation that prison authorities and correctional officers fulfil their role in contributing to public order and public safety. This is balanced against safeguards on the exercise of the use of lethal force in the Corrections Regulations 1998 and operational procedures.

The Corrections Regulations 1998 ensure that the circumstance in which a prison officer may discharge a firearm is proportionate to the safety and security risks presented to prison officers, prisoners and the community. Regulation 8 of the Corrections Regulations 1998 sets out the restricted circumstances in which a Governor may issue a firearm to a prison officer. Regulation 10 of the Corrections Regulations 1998 ensures proportionality by requiring that a prison officer must believe that use of a firearm is the only practicable way to prevent the escape of a prisoner or a person causing death or serious injury. A prison officer must also give an oral warning before discharging a firearm at a person and satisfy himself or herself that shooting at the person does not create an unnecessary risk to any other person.

Existing operational procedures also ensure that the use of lethal force is proportionate to the relevant safety risk and an absolute last resort. For instance, officers may only use such force as is reasonable and necessary to resolve the situation and must identify possible courses of action that involve the use of all other tactical options before having to resort to the use of lethal force to manage those risks. The use of firearms is an option available only to trained staff in very specific circumstances when there are no other options that would achieve the purpose of preventing escape or defending themselves or others.

Amendments to Firearms Act 1996

Finally, I note that in its Alert Digest No. 12 of 2007, the Committee has drawn attention to a provision in another Bill currently before the Parliament which falls within my responsibility, the Firearms Amendment Bill 2007.

The Committee has noted that the search and seizure powers in the Bill extend the existing police powers in the Firearms Act 1996 for search without warrant where police suspect on reasonable grounds that a person is committing or is about to commit an offence against the Act. This power will now extend to include silencers and prescribed items.

The Committee observes in the Alert Digest that it has previously reported to the Parliament that the threshold for the exercise of the power based on 'reasonable suspicion' is a lower threshold test than that based on 'reasonable belief'.

I would take this opportunity to draw to the Committee's attention to R v Clayton 2007 SCC 32, in which the Supreme Court of Canada makes clear that 'individualised suspicion' is sufficient to justify detention and search without warrant. Indeed, police would be in breach of their duties if they failed to act in such circumstances.

I thank you for the opportunity to respond to the Committee's questions.

Bob Cameron MP
Minister for Police & Emergency Services
Minister for Corrections

10 October 2007

The Committee thanks the Minister for this response.

Committee Room
29 October 2007

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Scrutiny of Acts and Regulations Committee
Parliament of Victoria