Scrutiny of Acts and Regulations Committee

Alert Digest No 15 of 2007

Tuesday, 20 November 2007

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Children's Services and Education Legislation Amendment (Anaphylaxis Management) Bill 2007

Introduced: 30 October 2007
Second Reading Speech: 1 November 2007
House: Legislative Assembly
Member introducing Bill Hon. Maxine Morand MLA
Portfolio responsibility: Minister for Children and Early Childhood Development


Purpose

The Bill amends the Children’s Services Act 1996 to require a children’s service to have an anaphylaxis management policy containing prescribed matters; and the Education and Training Reform Act 2006 to require certain schools to have an anaphylaxis management policy as a minimum standard for registration of the school.

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill come into force on proclamation but not later than by 14 July 2008.

[3]. Inserts a new section 26A in the Children’s Services Act 1996 to require the proprietor of a children’s service to ensure that the service has in place an anaphylaxis management policy containing prescribed matters.

[5]. Amends section 4.3.1 of the Education and Training Reform Act 2006 to set out the requirements for registration of a school by the Victorian Registration and Qualification Authority and adds a new requirement upon the Authority to not register a school that has enrolled a student diagnosed as being at risk of anaphylaxis unless it is satisfied that the school has developed an anaphylaxis management policy containing matters required by a Ministerial Order to be included in the policy.

[9]. Provides for automatic repeal of this amending Act on 14 July 2009.

Charter Report

Keywords – right to life – protection of children – anaphylaxis management policy – regulations and orders to set requirements for contents

Charter s. 9 gives everyone ‘the right to life’. Charter s. 10(c) provides that people must not be ‘subjected to medical treatment without consent.’ Charter s. 17 provides that children have the right ‘to such protection as is in his or her best interests’.

The Committee notes that clause 3, inserting a new s. 26A into the Act, requires proprietors of children’s services to have an ‘anaphylaxis management policy.’ The Committee also notes that clause 5(2), amending s. 4.3.1 of the Education and Training Reform Act 2006, imposes a similar requirement on schools that know or ought to know that an enrolled student has been diagnosed as at risk of anaphylaxis. The Committee further notes that the Bill provides for regulations or a Ministerial Order to specify requirements for the contents of such policies (clause 4, amending s.56 of the Act; and clause 5(2), amending s 4.3.1 of the Education Training and Reform Act 2006.)

The Committee observes that clauses 3 and 5(2) may promote the rights of children to life and to protection from the health consequences of anaphylaxis. The Committee also observes that, if medical treatment of children for anaphylaxis pursuant to a required program only occurs with the consent of their parents or guardians, then clauses 3 and 5(2) will not infringe children’s right against non-consensual medical treatment. The Committee considers that any positive or negative impact of clauses 3 and 5(2) on children’s rights will depend upon the content of the proposed regulations and Ministerial Order.

The Committee makes no further comment

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Fair Trading and Consumer Acts Further Amendment Bill 2007

Introduced: 30 October 2007
Second Reading Speech: 1 November 2007
House: Legislative Assembly
Member introducing Bill Mr Tony Robinson MLA
Portfolio responsibility: Minister for Consumer Affairs


Purpose

The Bill amends the —

  • Fair Trading Act 1999 to –

    • re-enact in it the provisions of the Frustrated Contracts Act 1959;

    • include provisions consequent on the repeal of the Hire-Purchase Act 1959;

    • expand the powers of the Director to bring proceedings;

    • provide for certain matters to be privileged;

    • provide power to seek a court order to enforce compliance with certain requirements of the Director or an inspector;

    • improve generally the operation of that Act.

  • Owners Corporations Act 2006 to improve the operation of that Act;

  • Partnership Act 1958 to enable Early Stage Venture Capital Limited Partnerships to be registered and recognised in Victoria;

  • Shop Trading Reform Act 1996 to repeal provisions relating to special local shop closing times that regulate Sunday trading;

  • Subdivision Act 1988 to improve the operation of that Act;

  • Trade Measurement Act 1995 and the Trade Measurement (Administration) Act 1995 to reflect changes to the national model legislation.

The Bill also repeals the Frustrated Contracts Act 1959 and the Hire-Purchase Act 1959.

The Bill also amends various Consumer Acts to provide power to seek a court order to enforce compliance with certain requirements of the Director or an inspector.

Content and Committee comment

[Clauses]

[2]. Certain provisions will come into operation on Royal Assent. Parts 7 and 8 come into operation on 1 July 2008. Sections 3, 4, 10, 11, 53 to 56, 58 and 59 come into operation on proclamation but not later than by 1 December 2008.

Fair Trading Act 1999 – [3 to 11]

[4]. Inserts new Part 2C (new sections 32ZE to 32ZO) to re-enact the provisions of the Frustrated Contracts Act 1959.

Note: This Act is to be repealed by clause 53 of the Bill.

[6]. Inserts new section 152A in the Act to provide that the Director of Consumer Affairs Victoria, or an inspector, can certify to a court a person's failure, without reasonable excuse, to comply with a requirement under sections 106HA, 106I, 118 or 131. A certification cannot be made where that person has been charged with an offence against section 106HA, 106I(3) or 132. The court may then inquire into the case and may order the person to comply with the requirement.

If a proceeding is brought under this section in relation to a failure to comply with a requirement, the person to whom the failure relates cannot also be charged with an offence under section 106HA(2), 106I(3), or 132 as applicable. Refer to Charter Report below.

[8]. Amends section 163 to specify a minimum font size to be used in consumer documents.

[9]. Inserts section 163A in the Act to provide that a person is not liable for any loss or damage or injury sustained by any other person solely because the first person, in good faith makes a complaint to the Director of Consumer Affairs Victoria under section 103 of that Act; or produces or gives a document or any information or evidence to, the Director or an inspector appointed under the Act or before the VCAT regarding a matter that is or may be a contravention of the Act or another Consumer Act. Refer to Charter Report below.

[10]. Inserts clause 3 in Schedule 12 to save hire purchase agreements entered into prior to the repeal of the Hire-Purchase Act 1959.

Note: Clause 54 of the Bill repeals the Hire-Purchase Act 1959.

[49]. Amends section 59 of the Trade Measurement Act 1995, (which provides rights of appeal against a decision of the licensing authority) to provide rights of appeal in relation to (i) an amendment of a licence as well as the existing right to appeal a refusal of an application for a licence (through amendment of section 59(1)(a); and (ii) in relation to a decision to cancel a licence because the weighbridge is no longer suitable as a public weighbridge.

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

Charter Report

Keywords – Reasonable limits – Transfer of information relating to compliance with trading rules – Privacy – Reputation

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

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

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

  • Privacy (Charter s.13(a)): provisions for a court to order a person to obey existing statutory obligations to provide information or documents to investigators (clause 6, inserting a new section 152A into the Fair Trading Act 1999; and schedule 2, making similar provision for fifteen other statutes regulating trading.) (The Statement of Compatibility regards these provisions as engaging the Charter’s rights to freedom of expression and the privilege against self-incrimination.)

  • Reputation (Charter s.13(b)): a provision exempting a good faith complaint or giving of information in a consumer matter from civil liability (e.g. an action for defamation) (clause 9, inserting a new section 163A into the Fair Trading Act 1999.)

In both instances, the Statement of Compatibility contends that the respective rights are not infringed. 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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Gambling Legislation Amendment (Problem Gambling and Other Measures) Bill 2007

Introduced: 30 October 2007
Second Reading Speech: 1 November 2007
House: Legislative Assembly
Member introducing Bill Mr Tony Robinson MLA
Portfolio responsibility: Minister for Gaming


Purpose

The Bill amends the Gambling Regulation Act 2003 to —

  • require venue operators to conduct self-exclusion programs;

  • require various licence holders and others to have a Responsible Gambling Code of Conduct;

  • make it an offence for a venue operator or the holder of the wagering licence or the wagering operator to knowingly allow an intoxicated person to gamble;

  • further limit the availability of automatic teller machines in gaming venues;

  • impose further limits on venue operators with respect to the cashing of cheques by customers;

  • ensure that the Victorian Commission for Gambling Regulation does not specify a gaming machine area that is located outdoors;

  • amend the requirements relating to the order that the Minister makes in respect of community benefit statements;

  • improve the operation and effectiveness of the restrictions on the use of Victorian race fields by wagering service providers;

The Bill also amends the Casino Control Act 1991

  • require a casino operator to have a Responsible Gambling Code of Conduct;

  • further limit the availability of automatic teller machines in a casino;

  • make it an offence for a casino operator to provide gaming machines outdoors;

  • make it an offence for a casino operator to knowingly allow an intoxicated person to gamble in the casino; and

The Bill makes a consequential amendment to the Liquor Control Reform Act 1998.

Content and Committee comment

[Clauses]

[2]. Other than clauses 13 and 58 the provisions in the Bill come into operation on a day or days to be proclaimed but not later than by 1 December 2008. Clauses 13 and 58 will come into operation on 1 January 2010.

Note: In respect to clauses 13 and 58 the explanatory memorandum provides – Those clauses introduce further restrictions on automatic teller machines in gaming venues and the casino. It is necessary to provide a substantial lead time for the commencement of the new restrictions to allow for the modification removal of automatic teller machines.

Gambling Regulation Act 2003

[11]. Deals with self-exclusion programs and responsible gambling codes of conduct that have been approved by the Commission and makes such programs and codes a condition of a venue operator’s licence.

[12]. Inserts new paragraphs (g) and (h) into section 3.4.25(1) of the Act to establish new grounds for disciplinary action against a venue operator of repeated breaches by the operator of its self-exclusion program and repeated breaches by the operator of its Responsible Gambling Code of Conduct.

[13]. Inserts new section 3.5.32A into the Act which imposes limits on the placement of automatic teller machines in gaming venues and the amount that can be withdrawn from those machines in a 24-hour period.

[14]. A venue operator must not cash a cheque for an amount greater than $400 at an approved venue nor cash more than one cheque for any one person in a 24 hour period.

[15]. Inserts new section 3.5.33A to provide that a venue operator must not knowingly allow an intoxicated person to play a gaming machine.

[22]. Amends section 4.3.31(1) to include a new paragraph (ba) which makes repeated breaches of the licensee’s Responsible Gambling Code of Conduct a ground for disciplinary action.

[23]. Inserts a new section 4.7.7 to provide that the holder of the wagering licence or the wagering operator must not knowingly accept a bet from a person who is in a state of intoxication.

[46]. Inserts a new paragraph (h) into section 8.5A.14(1) to include as grounds for disciplinary action that a commercial raffle organiser has repeatedly breached the licensee’s Responsible Gambling Code of Conduct.

[49]. Inserts a new Part 6 into Chapter 10 of the Act dealing with self-exclusion programs.

Casino Control Act 1991

[55]. Amends section 20(1) of the Act to insert an additional ground for disciplinary action in respect to repeated breaches by the casino operator of their Responsible Gambling Code of Conduct.

[57]. Makes it a condition of a licence that an operator implement a responsible gambling code of conduct.

[58]. Inserts new section 81AAA into the Act which prohibits a casino operator from providing, or allowing another person to provide, within 50 metres of any entrance to casino, an automatic teller machine, if the machine allows a person to withdraw an amount of cash exceeding $400 per 24 hours, per debit or credit card.

[59]. Inserts new section 81AAC into the Act to prohibit a casino operator from knowingly permitting a person to gamble or bet in the casino while they are in a state of intoxication.

[63]. Provides for the automatic repeal of this amending Act on the anniversary of its forced commencement (1 January 2010).

Charter Report

Keywords – Reasonable limits – Licensing and regulation of gaming venues – Freedom of Movement – Privacy – Property

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

The Committee notes that the Bill relates to the regulation of trading (specifically gambling) and the enforcement of that regulation. The Committee observes that such legislation inevitably engages a variety of human rights, but that reasonable provisions will typically satisfy Charter s.7(2), as well as internal limits on particular rights.

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

  • Movement (Charter s.12): provisions making a gaming licence conditional on venue operators having a self-exclusion program that ‘enables’ venue operators to exclude people from a ‘gaming machine area’ who have voluntarily excluded themselves from that area (and have not opted out of the exclusion); and disciplining venue operators who repeatedly breach such a program (clauses 11 and 12, respectively inserting a new s.3.4.12A and amending s.3.4.25(1) of the Gambling Regulation Act 2003).

  • Privacy (Charter s.13(a)): provisions requiring various licence applications to be accompanied by information as required by a controlling body (e.g. clause 6, inserting a new section 2.5.19C into the Gambling Regulation Act 2003; and clause 54, amending s.8(3) of the Casino Control Act 1991).

  • Property (Charter s.20): provisions barring approvals for outdoor gaming areas (clause 7, amending ss.3.3.7 and 3.3.16 of the Gambling Regulation Act 2003; and clause 56, inserting a new section 62AA into the Casino Control Act 1991); barring venue operators from providing certain automatic teller machines in a venue (clause 13, inserting a new section 3.5.32A into the Gambling Regulation Act 2003; and clause 58, inserting a new section 81AAA into the Casino Control Act 1991); and barring venue operators from cashing certain cheques (clause 14, amending s.3.5.33 of the Gambling Regulation Act 2003).

In each instance the Statement of Compatibility contends that the respective rights are either not infringed or are subject only to reasonable limitations under Charter s.7(2). The Committee further observes that clause 6, inserting a new division 5A into the Gambling Regulation Act 2003, barring the commercial publication of a race field by a wagering service without approval from a controlling body, engages Charter s.15(2), which provides for freedom of expression.

Having considered the above Charter rights and provisions, the Committee is satisfied that the measures so engaged do not warrant any special mention or adverse comment in respect to possible incompatibility with human rights. In particular, the Committee considers that clause 6, which has the purpose of facilitating the monitoring and regulation of wagering service providers, is a lawful restriction on freedom of expression to protect public order under Charter s.15(3).

The Committee makes no further comment

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Health (Fluoridation) Amendment Bill 2007

Introduced: 10 October 2007
Second Reading Speech: 31 October 2007
House: Legislative Council
Member introducing Bill Mr Peter Kavanagh MLC
Portfolio responsibility: Minister for Health
Private Members Bill


Purpose

The Bill amends the Health (Fluoridation) Amendment Act 1973 (the ‘Act’) to prevent the addition of fluoride to a public water supply unless first approved by a poll of voters in each municipal district or, if the municipal district is subdivided, in each ward of the municipal district, within the relevant water supply district.

Content and Committee comment

[Clauses]

[2]. Provides for the Act to come into operation on the day after Royal Assent.

[3]. Amends section 5 of the Act to prevent the fluoridation of a water supply except in compliance with section 5A.

[4]. Inserts a new section 5A requiring approval by a poll of voters before fluoride is added to a public water supply.

[5]. Provides for the automatic repeal of the Act on the first anniversary of its commencement.

Charter Report

Keywords – non-consensual medical treatment – protection of families and children – participation in public life – poll of voters as a condition for adding fluoride to a public water supply – health effects of fluoridation – exclusion of water where fluoride has already been lawfully added

Charter s.10(c) provides that people must not be ‘subjected to medical treatment without consent.’ Charter s.17 entitles both ‘families’ and ‘every child’ to protection. Charter s.18(1) provides that Victorians have the right (and must be given the opportunity) ‘to participate in the conduct of public affairs, directly or through representatives’.

The Committee notes that clause 4, inserting a new section 5A(1) into the Health (Fluoridation) Act 1973, requires a ‘poll of voters’ in a municipal district before fluoride can be added to ‘any public water supply’ in that district. The Committee also notes that new section 5A(2) exempts districts where fluoride has already been lawfully added. The Committee observes that clause 4 may promote the Charter’s rights against non-consensual medical treatment and to have the opportunity to participate directly in public affairs.

The Committee also notes the Statement of Compatibility’s argument that, if the premise that fluoridation has health concerns is correct, then clause 4 may promote the rights of families and children to protection. The Committee observes that, if the health benefits of fluoridation outweigh their health concerns, then clause 4 may limit the rights of families and children to protection. The Committee considers that the question of the health effects of fluoridation, and hence the compatibility of the new section 5A(1) with Charter s. 17, is a matter for Parliament.

The Committee also observes that the new section 5A(2) limits the new section 5A(1) by excluding families and children in areas where fluoride has already been lawfully added to the public water system.

The Committee refers to Parliament for its consideration the question of whether or not the proposed new section 5A(2) is a reasonable limit, according to the test in Charter s. 7(2), on the rights of families and children to protection, under Charter s. 17, from the health concerns (if any) of the fluoridation of water.

The Committee makes no further comment

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Liquor Control Reform Amendment Bill 2007

Introduced: 3 October 2007
Second Reading Speech: 1 November 2007
House: Legislative Assembly
Member introducing Bill Mr Tony Robinson MLA
Portfolio responsibility: Minister for Consumer Affairs


Purpose

The Bill amends the Liquor Control Reform Act 1998 (the ‘Act’) to —

  • allow for the exclusion of persons from certain premises or areas in certain circumstances;

  • strengthen both penalties for liquor licensing offences and enforcement powers;

  • facilitate and provide support for voluntary liquor accords; and

  • allow for bans of the inappropriate advertising or promotion of liquor sales and licensed premises.

Content and Committee comment

[Clauses]

[2]. Section 3 and Part 3 will commence on proclamation but not later than by 1 July 2008 and the remaining provisions of the Bill (clauses 4 to 7) will commence on a day or days to be proclaimed or 1 July 2009, whichever is sooner.

The Committee reports to Parliament pursuant to a term of reference provided in section 17(a)(vi) of the Parliamentary Committees Act 2003, – ‘inappropriately delegates legislative power’.

The Committee refers to Scrutiny Committee Practice Note No. 1 of October 2005 concerning delayed commencement provisions of more than 1 year from the time a Bill is introduced in the Parliament.

The Committee will request the Minister to draw this matter to the attention of his Department’s legislation officers.

The Committee will seek further advice from the Minister concerning the necessity to include such a delayed commencement provision.

[4 to 7]. Part 2 of the Bill establishes two new processes that can be applied in relation to specific locations to be determined by the Director of Liquor Licensing. These are banning notices that may be given by certain police members and exclusion orders that may be made by a court.

[5]. Inserts new Part 8A (new section 147 and 148 and 148A to 148R) regarding banning notices and exclusion orders into the Act.

New section 147 provides the Director of Liquor Licensing with the power to declare, by Order published in the Government Gazette, an area to be a designated area for the purposes of new Part 8A. The Director must consult the Chief Commissioner of Police before making an Order declaring a designated area.

Banning Notices

New section 148B empowers a relevant police member to issue a banning notice which bans the person for a maximum of 24 hours from the designated area or from all licensed premises in the designated area as set out in the notice given to the person.

A police member cannot give a banning notice to a person that bans the person from the whole of a designated area if the relevant police member believes or has reasonable grounds for believing that the person either lives or works in the designated area.

A person can be given more than one banning notice for the designated area or licensed premises within the designated area if the banning notices are given for separate specified offences.

New section 148D sets out the requirements in relation to a request that a person state their name and address.

Strict liability – reverse onus to establish evidentiary facts

New section 148F sets out 2 offences for contravening banning notices and failing to comply with directions of the police. There are two defences provided in respect to the strict liability offences, firstly the defence of reasonable mistaken belief about facts which had they existed, would not have meant that the conduct would not have constituted an offence and secondly, that the conduct constituting the offence was beyond the persons control and the person took reasonable precautions to avoid committing an offence.

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’.

Offence to contravene banning notice or failure to comply with direction – Strict liability offence – defence of reasonable mistake of fact or conduct beyond the control of defendant and reasonable precautions taken to avoid offence

The Committee accepts that in certain circumstances whether a person has a ‘lawful excuse’ or claims that there are causes beyond his or her control are matters in the peculiar knowledge of that person and that in these cases a strict liability offence may be appropriate requiring a defendant to prove on the balance of probabilities, the existence of some evidentiary fact by way of a defence to an alleged contravention.

The Committee also refers to these offences in the Charter Report below.

New section 148G sets out the powers of a member of the police force to direct a person who is the subject of a banning notice and who is in the designated area or licensed premises in contravention of the notice to leave that designated area or licensed premises.

New section 148H allows a member of the police force to use reasonable force in 2 circumstances related to banning notices.

Exclusion Orders

New section 148I gives jurisdiction to a court to make an exclusion order of up to 12 months where a court finds the offender guilty of a specified offence and that specified offence committed in a designated area. The Director of Public Prosecutions or a police member may bring an application for an exclusion order or the court may make an exclusion order on its own initiative.

Strict liability – reverse onus to establish evidentiary facts

New section 148J sets out the offences and specifies particular defences in relation to the contravention of an exclusion order and a failure to comply with directions given by the police. There are two defences provided in respect to the strict liability offences, firstly the defence of reasonable mistaken belief about facts which had they existed, would not have meant that the conduct would not have constituted an offence and secondly, that the conduct constituting the offence was beyond the persons control and the person took reasonable precautions to avoid committing an offence.

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’.

Offence to contravene exclusion order or fail to comply with direction – Strict liability offence – defences – reasonable mistake of fact – conduct beyond the control of defendant and reasonable precautions taken to avoid offence

The Committee accepts that in certain circumstances whether a person has a ‘lawful excuse’ or claims that there are causes beyond his or her control are matters in the peculiar knowledge of that person and that in these cases a strict liability offence may be appropriate requiring a defendant to prove on the balance of probabilities, the existence of some evidentiary fact by way of a defence to an alleged contravention.

The Committee also refers to these offences in the Charter Report below.

New section 148K sets out the powers of a member of the police force to direct a person who is the subject of an exclusion order and who is in the designated area or licensed premises in contravention of the order to leave that designated area or licensed premises.

New section 148L allows a member of the police force to use reasonable force in 2 circumstances related to exclusion orders. Reasonable force may be used to prevent a person from entering or re-entering a designated area or licensed premises or from attempting to do so in contravention of the terms of the exclusion order.

New section 148M empowers the person who is the subject of an exclusion order, the Director of Public Prosecutions or a member of the police force to apply for a variation of the exclusion order.

New section 148P sets out the information that the Director of Liquor Licensing or relevant police members may disclose to licensees or permittees or their employees or agents concerning persons banned or excluded under the new Part including a photograph of persons subject to notices and orders made under the Part.

New section 148Q provides for an offence applicable to a licensee or a permittee and an identical offence applicable to an employee or an agent of a licensee or a permittee if any of those persons knowingly permit a person who is the subject of a banning notice or an exclusion order to enter or re-enter the licensed premises in contravention of the notice or order.

[6]. Offences under the new Part may be proceeded against by way of infringement penalty notices.

[7]. Inserts new Schedule 2 into the Principal Act. Schedule 2 sets out the specified offences for the purposes of both banning notices and exclusion orders.

[21]. Inserts new section 108(4) and (5) to provide that a licensee or permittee must not supply liquor to a person who is in a state of intoxication or permit drunken or disorderly persons to be on the licensed premises or on any authorised premises.

New section 108(5) provides for 2 separate defences to a prosecution for this offence if the defendant did not know that drunken or disorderly persons were on the premises and if the defendant had taken reasonable steps to ensure that drunken or disorderly persons were not on the premises.

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’.

Offence to supply alcohol to is intoxicated or permit drunken or disorderly person to be on licensed or authorised premises – Strict liability offence – defences of reasonable mistake of fact or reasonable steps taken.

The Committee accepts that in certain circumstances whether a person is acting under a mistaken belief or has taken reasonable steps to avoid the particular liability encompassed by the offence that these matters are within the peculiar knowledge of that person and that in these cases a strict liability offence may be appropriate requiring the defendant to prove on the balance of probabilities the existence of some evidentiary fact by way of a defence.

The Committee also refers to these offences in the Charter Report below.

[25]. Inserts new Division 6 in Part 8 of the Act in relation to voluntary liquor accords. The insertion of this new Division establishes a legislative basis and provides support for voluntary liquor accords.

Note: From the explanatory memorandum – A liquor accord is a code of practice or agreement that affects such matters as the supply of liquor and the opening and closing of licensed premises and is entered into by one or more licensees or permittees, or both, with the approval of the Chief Commissioner of Police and the Director of Liquor Licensing. The definition of the term liquor accord makes it clear that the purpose of a liquor accord is to minimise the harm that arises from the misuse and abuse of alcohol.

[28]. Provides for the automatic repeal of this amending Bill on the first anniversary of its forced commencement.

Charter Report

Keywords – Freedom of movement – Liberty – Presumption of innocence – Exclusion of certain people from areas affected by alcohol-related violence or disorder – Size of areas – Interim court orders and criminal prosecutions in areas later deemed invalid – Reversal of burden of proof

Charter s.12 gives every person ‘the right to move freely within Victoria’. Charter s.21(1) gives every person the ‘right to liberty’. Charter s.25(1) provides that people charged with a criminal offence are ‘to be presumed innocent until proved guilty’.

The Committee notes that clause 5 (inserting a new Part 8A into the Act) creates offences of entering or staying in a area or licensed premises contrary to a banning notice, police direction or exclusion order (new sections 184F & 148J) and permitting such persons to enter or re-enter licensed premises (new section 148Q); and authorises police to use reasonable force to remove such persons or prevent their re-entry (new sections 184H & 148L.) The Committee considers that these provisions may infringe such persons’ rights to freedom of movement and liberty.

The Statement of Compatibility remarks that the exclusions are subject to a number of constraints:

  • the areas where banning notices and exclusion orders may apply are limited to those designated by the Director of Liquor Licensing, following consultation with the Chief Commissioner, that contain a public place, within 100 metres of a licensed premises, where alcohol-related violence or disorder has occurred (new section 147(1)) and that the Director must revoke the designation once the grounds no longer exist (new section 148A(1)(b))

  • the persons who may be excluded are restricted to those suspected or found guilty (with a sentence of less than 12 months imprisonment) of committing specified offences in that area (new sections 148B(1) & 148I(1))

  • the bans or orders are restricted to those that may prevent further specified offences by the person banned, are subject to a variety discretionary considerations and cannot bar a person from attending a place of residence or work (new sections 148B(3)-(4) and 148I(1)(c) & (6))

  • the time of the bans are restricted to 24 hours (in the case of police orders concerning suspects) and 12 months (in the case of court orders concerning people who were found guilty) (new sections 148B(2) & 148I(4))

The Committee observes that there are no constraints as to the size of the area designated by the Director but rather that the area must merely contain a public place affected by relevant violence near licensed premises. The Committee also observes that courts are barred from issuing interim orders staying a designation of an area, including an invalid designation, unless there are exceptional circumstances (new section 148(1)). The Committee further observes that criminal prosecutions for contraventions banning notices or exclusion orders prior to a court’s finding that a designated area is invalid will remain invalid (new Section 148(2)).

The Committee also notes that new sections 148F(3) & 148J(3) provide that the burden of proof is on criminal defendants to establish the defences of mistake of fact or reasonably unavoidable circumstances in relation to the new criminal offences of failure to comply with a banning notice, exclusion order or a related police direction. The Committee considers that these provisions may infringe such defendants’ rights to be presumed innocent until proved guilty.

The Statement of Compatibility remarks that:

The purpose of the imposition of a burden of proof on the defendant is to provide the defendant with an opportunity to escape liability in circumstances of honest and reasonable mistake or total absence of fault, without undermining the ability to enforce compliance with banning notices and exclusion orders… [T]he onus only relates to matters that are within the knowledge of the defendant…. An evidential onus would be too easily discharged by a defendant and the prosecution would have difficulty in proving the absence of the defence beyond reasonable doubt… It is also relevant that this offence is one that carries a relatively small fine only.

The Committee observes that reasonable mistakes of fact and reasonably unavoidable circumstances are matters that are traditionally regarded as incompatible with criminal responsibility. The Committee also observes that the prosecution is typically required to prove the absence of such matters beyond a reasonable doubt (once they are raised on the evidence) and may do so by relying on circumstantial evidence, as well as any admissions or guilty conduct by the defendant. The Committee further observes that, whether criminal responsibility is proven or not, people who are the subject of banning orders or exclusion orders may still be removed by police under new sections 148H & 148L and must not be admitted into relevant licensed premises under new section 148Q.

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

  1. Why is there no limit in new section 147(1) on the size of areas that may be designated by the Director of Liquor Licensing?

  2. Why does new section 148(1) prevent courts from making interim orders suspending a designation except in exceptional circumstances?

  3. Will new section 148(2) permit the prosecution of people who breach banning notices or exclusion orders despite a later finding by a court that the Director’s designation of the relevant area was invalid?

  4. Given the availability of circumstantial evidence to disprove reasonable mistakes and reasonably unavoidable circumstances, the powers in new sections 148H &148L and the criminal offence in new section 148Q, why are the reverse burdens of proof in new sections 148F(3) & 148J(3) necessary to enforce compliance with banning notices and exclusion orders?

Pending the Minister’s response, the Committee refers to Parliament for its consideration the question of whether or not clause 5 is a reasonable limit on the Charter’s rights to movement, liberty and the presumption of innocence according to the test set out in Charter s.7(2).

Keywords – Reasonable limits – Regulation of licensed venues – Freedom of movement – Privacy – Freedom of expression – Property rights – 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.’

The Committee notes that the Bill relates to the regulation of trading (specifically liquor sales) and the enforcement of that regulation. The Committee observes that such legislation inevitably engages a variety of human rights, but that reasonable provisions will typically satisfy Charter s.7(2), as well as internal limits on particular rights.

The Statement of Compatibility identifies several amendments to the Liquor Control Reform Act 1998 that are said to engage the following Charter rights:

  • Freedom of movement (Charter s.12): A provision authorising private accords amongst licensees, with the approval of the Chief Commissioner and the Director of Liquor Licensing, to exclude particular members of the public from licenced premises for the purpose of minimising harm arising from the misuse or abuse of alcohol (clause 25, inserting new section 146B).

  • Privacy (Charter s.13(a)): A provision for the disclosure of information concerning banning notices, exclusion orders and liquor accord bans, including identification details of the subject of those notices or orders, to licensees and their employees (clause 5, inserting new section 148P; and clause 25, inserting new section 146D).

  • Freedom of expression (Charter s.15(2)): A provision barring licensees from permitting music to be performed or played at a volume that prevents conversation between patrons outside ordinary trading hours (clause 13(b), amending s.9); and requiring licensees to comply with a notice banning ads or promotions that the Director considers are ‘likely to encourage irresponsible consumption of alcohol or is otherwise not in the public interest’ (clause 23, inserting a new section 115A). The Committee observes the Director’s authority to issue notices with respect to the ‘public interest’ under clause 23 will be subject to Charter ss.32(1) and 38, which generally require statutes to be interpreted and decisions to be made consistently with human rights.

  • Property rights (Charter s.20): A provision for the temporary suspension of a licence where a senior police member believes that conduct in breach of the licence has occurred, will continue and may result in substantial harm, loss or damage to a person (clause 18, inserting a new section 96A).

  • Presumption of innocence (Charter s.25(1)): Provisions placing an evidential burden on defendants charged with contravening a banning notice or exclusion order to raise the defence that the police officer failed to comply with his or her statutory obligations with respect to such orders (clause 5, inserting new sections 148F(5) & 148J(5)) and placing a reverse onus of proof on defendant licensees charged with admitting or supplying liquor to drunk people for the new defences of absence of knowledge and reasonable steps (clause 21(2), amending s. 108.). The Committee observes that the latter offence is subject to the common law defence of honest and reasonable mistake of fact, which imposes only an evidential burden on defendants.

In each instance the Statement of Compatibility contends that the respective rights are either not infringed or are subject only to reasonable limitations under s7(2). 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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Motor Car Traders Amendment Bill 2007

Introduced: 30 October 2007
Second Reading Speech: 1 November 2007
House: Legislative Assembly
Member introducing Bill Hon. Tony Robinson MLA
Portfolio responsibility: Minister for Consumer Affairs


Purpose

The Bill amends the Motor Car Traders Act 1986 (the ‘Act’) to regulate motor car auctions and to improve the operation of that Act and the Interpretation of Legislation Act 1984 to insert a new definition of insolvent under administration and to make consequential amendments to other Acts.

Content and Committee comment

[Clauses]

[2]. Provides that the proposed Act will come into operation on a day or days to be proclaimed but not later than by 1 December 2008.

Police checks

[12]. Adds a new category of persons whom a motor car trader is prohibited from employing in any customer service position, requires motor car traders to check that potential employees are not prohibited prior to employing them and provides for a form to be prescribed for declarations by applicants of whether or not they are prohibited from being employed in such positions. The clause amends section 35A by inserting a new 35A(4) requiring police checks to be undertaken by persons employed in a customer service capacity.

Age based discrimination

[13]. Provides that a motor car trader cannot knowingly enter into dealings with a person under the age of 18 years in relation to new or used cars.

[14]. Amends section 43 of the Act to provide for cooling-off periods for car sales that in all instances will terminate three clear days after the purchaser signs the agreement for the sale of a motor car or sooner if the purchaser during the cooling-off period signs a waiver.

[16]. Inserts a new Part 3A in the Act (new sections 50C to 50J) to prohibit dummy bidding, allow vendor bids and otherwise regulate auctions of motor cars and provide for appropriate offences relating to such auctions.

[18 and 19]. Provides for disclosure obligations in respect to the previous ownership of motor vehicles at the request of a prospective purchaser, and provides for relevant offences.

[25]. Makes a number of amendments to section 77 including an amendment (new section 77(4A)) to allow a discretion to the Motor Car Traders Claim Committee whether to hold an oral hearing to admit or refuse a claim under the Motor Car Traders Guarantee Fund established by the Act.

[29]. Is a transitional provision (new section 121) which provides that the prohibitions on persons who can be employed as inserted by clause 12 do not apply to people employed prior to the commencement of that clause.

[33]. Provides that this proposed Act is repealed on 1 December 2009.

Charter Report

Keywords – Reasonable limits – Regulation of the trade in motor cars – Age discrimination – Privacy – Property – Fair hearing

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

The Committee notes that the Bill relates to the regulation of trading (specifically in motor cars) and the enforcement of that regulation. The Committee observes that such legislation inevitably engages a variety of human rights, but that reasonable provisions will typically satisfy Charter s.7(2), as well as internal limits on particular rights.

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

Privacy (Charter s.13(a)): provisions requiring:

  • prospective employees of a motor car trader’s business to obtain a police check (clause 12(4), amending s.35A);

  • auctioneers to record and disclose the name and address of the owners and purchasers of motor cars sold at auction (clause 16, inserting new section 50J);

  • motor car traders to display or provide the name and address of the last owner of motor cars they sell (clause 18, amending s.52, and clause 19, inserting a new section 53);

  • claimants and specified public bodies to supply information relevant to a claim to the Motor Car Traders Claims Committee (clause 21, inserting new sections 68 and 69).

(The Statement of Compatibility regards these provisions as also engaging the Charter’s right to freedom of expression.)

Property rights (Charter s.20): a provision for the suspension of the trading licence of a partner or director if a corresponding partnership or body corporate’s licence is suspended (clause 9, amending s.29)

Fair hearing (Charter s.24(1)): a provision exempting the Motor Car Traders Claims Committee from any obligation to hold an oral hearing with respect to a claim (Clause 25(3) inserting new section 77(4A)).

The Committee also observes that, clause 13 substituting a new section 37 banning motor car trading with persons under 18, potentially engages the right against age discrimination under Charter s.8(3) (recognition and equality before the law).

In each instance the Statement of Compatibility contends that the respective rights are not infringed or are subject only to reasonable limits under Charter s.7(2). 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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National Electricity (Victoria) Amendment Bill 2007

Introduced: 30 October 2007
Second Reading Speech: 1 November 2007
House: Legislative Assembly
Member introducing Bill Hon. Peter Batchelor MLA
Portfolio responsibility: Minister for Energy and Resources


Purpose

The Bill amends the National Electricity (Victoria) Act 2005 (the ‘2005 Act’) to —

  • modify application of the National Electricity Law (the NEL) and the National Electricity Rules (the NER) for a limited period; and

  • provide for the transfer of administration of the current Victorian electricity distribution pricing determination from the Essential Services Commission (the ESC) to the Australian Energy Regulator (the AER).

The Committee notes the following extract from the Second Reading Speech –

The Bill will facilitate implementation in the Victorian electricity sector of the next phase of the national energy market reform program under the Council of Australian Governments (COAG). In particular, the Bill contains transitional provisions with respect to the transfer of responsibility for economic regulation of electricity distribution from the Essential Services Commission (ESC) of Victoria to the Australian Energy Regulator (AER).

Content and Committee comment

[Clauses]

[2]. Other than clause 6 the provisions in the Bill will come into operation on proclamation but not later than by 1 January 2009. Clause 6 which makes a statute law revision amendment and which will commence on the day after the day the Bill receives the Royal Assent.

[5]. Inserts a new Part 4 (new sections 17 to 29) in the Act concerning transitional arrangements from the ESC to the AER.

[7]. Provides for the automatic repeal of the Bill on 1 January 2010.

Charter Report

Keywords – Transfer of information held by Essential Services Commission – Privacy & reputation – Property – Transition to the national electricity law – Reasonable limits

Charter s.13 gives people the right not to have their ‘privacy unlawfully or arbitrarily interfered with’ and their ‘reputation unlawfully attacked.’ Charter s.20 provides that people must not be deprived of property ‘other than in accordance with law.’

The Committee notes that clause 5, inserting a new section 28 into the National Electricity (Victoria) Act 2005, authorises the transfer of information, including confidential information, held by the Essential Services Commission to the Australian Energy Regulator and exempts such transfers from adverse legal consequences. The Committee observes that such information may include private information of individuals. The Committee also observes that the exemption from legal consequences might deprive such individuals of rights to commence legal proceedings with respect to defamation or breach of contract. The Committee considers that clause 5 engages such individuals’ rights to privacy, reputation and property.

The Committee further observes that clause 5 is restricted to information ‘that is reasonably required by the AER for the purposes of’ the new Part 4, which facilitates the transition to the national electricity law. The Committee considers that the transfer of information for this purpose is not arbitrary and is clearly defined by the law and, therefore, that clause 5 is compatible with the Charter’s rights to protection of privacy, reputation and property.

The Committee makes no further comment

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Police Regulation Amendment Bill 2007

Introduced: 31 October 2007
Second Reading Speech: 1 November 2007
House: Legislative Assembly
Member introducing Bill Hon. Bob Cameron MLA
Portfolio responsibility: Minister for Police and Emergency Services


Purpose

The Bill amends the Police Regulation Act 1958 (the ‘Act’) to –

  • introduce testing of police members for alcohol or drugs of dependence, and

  • separate the positions of the Director, Police Integrity and the Ombudsman and provide for the continuation of contempt powers for the Office of Police Integrity.

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill come into force on proclamation but not later than by 1 January 2009.

Note: The explanatory memorandum provides – This will allow time for regulations to be made, for police and other agency procedures and instructions to be updated and for affected persons to be notified of any new obligations.

Breach of discipline

[4]. Adds two new circumstances that will constitute a breach of discipline under section 69(1) of the Act being –

  • a failure to comply with a direction to submit to alcohol and drugs of dependence testing and (new section 85B),

  • refusal to consent to a sample taken by a medical practitioner from a member of the force who is unconscious or otherwise unable to give his or her consent to the taking of the sample, being used in evidence (new section 85D).

[5]. Inserts a new Division 4A into Part IV of the Act (new sections 85A to 85H) to set out the process for drug and alcohol testing of police members.

Discretion to require testing for drugs and/ or alcohol

New section 85B inserts a power for the Chief Commissioner to direct a member of the force to provide a sample of breath, urine or blood for testing for the presence of drugs of dependence or alcohol.

To exercise the discretion the Chief Commissioner must reasonably believe the member—

  • to be incapable of performing or inefficient in the performance of his or her duties because of the consumption of alcohol or a drug of dependence; or

  • to have been involved in a critical incident as defined by new section 85A ; or

  • ought to be tested for alcohol or a drug of dependence for the good order or discipline of the force.

A direction must not be given unless the Chief Commissioner is satisfied that the results of the test may be relevant to management of the member’s performance of his or her duties, an investigation under Part IV or IVA of the Act or for any proceedings arising out of or in connection with any such investigation.

Immunity against legal proceedings – There is a protection against liability for a registered medical practitioner who takes a sample from a member of the force in compliance with a direction of the Chief Commissioner.

New section 85D provides that a registered medical practitioner may take a blood sample for testing for the presence of alcohol or a drug of dependence from a member involved in a critical incident who is unconscious or otherwise unable to comply with a direction to provide a sample. This will allow a sample to be taken in a relevant time period for analysis purposes even if the member cannot consent at that time. However, the member will have a chance to ‘withdraw’ their consent for that sample to be used for an evidential purpose once they become conscious.

New section 85E provides that evidence from a sample obtained under this new Division is generally inadmissible in any proceedings except in specified compensation health and discipline proceedings under the Act.

New sections 85F and 85G deal with confidentiality of test results and unlawful disclosure offences.

Office of Police Integrity

[8]. Amends section 102A(2) of the Act to remove the requirement that the Director of Police Integrity be the same person as the person who holds office as Ombudsman.

[9]. Inserts new sections 102AB to 102AH dealing with the appointment of Director, Police Integrity and provides for terms and conditions, resignation, suspension, removal and acting appointments relevant to that position. The Director may not accept any other employment without the written approval of the Governor in Council (s.102AB(3)(c)).

[11 to 13]. Deal with confidentiality and unlawful disclosure of information offences.

[15]. Provides for the automatic repeal of this amending Act on 1 January 2010.

Charter Report

Keywords – Non-consensual medical treatment – Privacy – Requirement for certain police officers to undergo testing for alcohol or drug dependence – Investigations of deaths

Charter s.9 gives everyone the right ‘not to be arbitrarily deprived of life.’ Charter s.10(c) gives people the right of a person not to be ‘subjected to medical treatment without his or her free consent’ and Charter s.13(a) gives people the right not to have their ‘privacy unlawfully or arbitrarily interfered with’.

The Committee notes that clause 5, inserting a new sections 85B and 85D into the Police Regulation Act 1958, authorises the Chief Commissioner to require certain members of the police force or police recruits to provide breath, urine or blood samples for the purpose of testing for alcohol or drug dependence. The Committee also notes that clause 4, amending s.69(1)(b), makes failure to consent, or failure of an officer sampled while unconscious to authorise analysis of the sample, a disciplinary offence, making the officer liable to fines or a variety of career sanctions, including dismissal. The Committee considers that these provisions may infringe the police officers’ right against non-consensual medical treatment and engage their right to privacy, but observes that neither of these rights is absolute.

The Committee further notes that sampling directions may only be made where the results are relevant to the management of the member’s performance or duties, or to an investigation or proceeding relating to performance or an incident where someone was killed or injured (new sections 85B(1), 85B(3) & 85C). The Statement of Compatibility provides –

It is essential that the Chief Commissioner has sufficient powers to effectively investigate cases where police actions has resulted in death or serious injury, to investigate and take action in cases where alcohol or drug use may be affecting the ability of an officer to carry out his duties, and to investigate and manage the performance of police officers. The provisions also serve to enable identification of officers with alcohol or drug problems so that treatment and rehabilitation can be provided.

The Committee further observes that the equivalent to Charter s.9 under the International Covenant on Civil and Political Rights has been interpreted as including an obligation on the state to fully investigate all unusual deaths. The Committee considers that clause 5 is a reasonable limit on the Charter right against non-consensual medical treatment, according to the test in Charter s.7(2), and does not infringe the Charter right to privacy.

Keywords – Fair hearing – Ban on admissibility or disclosure of the results of testing of police officers for drug or alcohol dependency – Where results of testing are relevant to a criminal defence

Charter s.24(1) provides that people charged with a criminal offence have ‘the right to have the charge decided after a fair hearing.’

The Committee notes that clause 5, inserting a new section 85E into the Police Regulation Act 1958, provides that evidence obtained as a result of alcohol or drug testing required by the Chief Commissioner is inadmissible in all proceedings, other than compensation, health and discipline proceedings, or proceedings arising out of a death or serious injury caused by the member tested. The Committee also notes that new sections 85F and 85G, clause 11 (amending s.102G) and clause 13 (amending s.102J), bar the disclosure of the results of any test other than to the person involved, the Office of Police Integrity, the Ombudsman (clause 12, inserting a new section 102IA) or in a compensation, health, discipline or critical incident proceeding. The Committee observes that these provisions together prevent criminal defendants from learning of or using the results of alcohol or drug testing of a police officer as part of their defence. The Committee therefore considers that the new section 85E, together with the bans on disclosure, may infringe some criminal defendants’ rights to a fair hearing.

The Second Reading Speech remarks that new section 85E:

is important to protect the administration of justice being substantively and unreasonably delayed or blown out through irrelevant ‘fishing’ expeditions by criminal defence teams. For example, a police member may be involved in a critical incident during a search, and then test positive to a drug of dependence. It is not intended that the drug test result could be used by the party subjected to the search, to attempt to discredit a charge against him or her such as possession and handling of stolen goods resulting from the search.

The Committee observes that other rules of evidence, notably the requirement of relevance, the discretion to exclude prejudicial evidence, the limits on cross-examination under s.37 of the Evidence Act 1958 and public interest immunity may prevent fishing expeditions of the type described by the Minister. However, unlike new section 85E and the prohibitions on disclosure contained in the Bill, these other rules permit the admission of such evidence where the public interest in admitting the evidence (including the rights of criminal defendants to fair hearings) outweighs the public interest in not admitting it (including police officers’ rights to privacy.)

The Committee also observes that the High Court of Australia has held that a police officer’s drug dependence, or the level of opiates in his or her blood, may be ‘a legitimate line of inquiry’ in certain trials (e.g. where a defendant alleges that drugs were planted by a police officer and a question arises as to where the officer might have obtained the drugs), that prosecutors may have a duty to present such evidence and that a ban on admitting the evidence or cross-examining a police officer about it may cause a ‘substantial miscarriage of justice’ (Wakeley & Bartling v R [1990] HCA 23, [21]-[22].)

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

  1. Will new section 85E prevent criminal defendants from making legitimate lines of inquiry as discussed by the High Court of Australia in Wakeley & Bartling v R [1990] HCA 23?

  2. Will the limitations on disclosure in new sections 85F, 85G and clause 11 prevent police or prosecutors from fulfilling their obligations to disclose relevant information to criminal defendants?

  3. Given the existing rules of evidence restricting irrelevant ‘fishing expeditions’, why is new section 85E needed?

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

The Committee makes no further comment

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Road Legislation Further Amendment Bill 2007

Introduced: 30 October 2007
Second Reading Speech: 1 November 2007
House: Legislative Assembly
Member introducing Bill Hon. Tim Pallas MLA
Portfolio responsibility: Minister for Roads and Ports


Purpose

The Bill amends the Road Safety Act 1986 to —

  • include provisions providing for fatigue management for drivers of certain heavy vehicles based on model legislation developed by the National Transport Commission for implementation throughout Australia;

  • introduce a new offence for drivers who deliberately or recklessly enter level crossings when warning devices are operating or a train or tram is approaching;

  • amend section 92 of the Act to add further purposes for which information in VicRoads’ records may be used, namely—

    • assist in locating missing persons;

    • facilitate the reunion of families and friends;

    • facilitate road safety related research projects;

    • assist infrastructure managers to carry out the managers’ functions under the Road Management Act 2004;

  • clarify the operator onus provisions in Part 6AA for the purposes of tolling offences;

  • enable VicRoads to delay sending a demerit point suspension notice if a demerit point notice is returned as undeliverable;

  • enable regulations to be made in respect of learner drivers that make different provision for drivers of different ages, experience or other factors;

  • enable regulations to be made providing for VicRoads to grant people under the age of 21 years probationary driver licences for longer terms than those that apply to older drivers;

  • clarify that a Ministerial order that recognises laws of other States or Territories for the purposes of determining a person’s liability for repeat drink-driving and drug-driving offences may include offences under laws that have been repealed or expired.

Part 3 of the Bill amends the Chattel Securities Act 1997 to clarify provisions regarding the registration of security interests in motor vehicles, including clarification of the power to make regulations imposing fees, and the ability to waive or reduce those fees in certain circumstances.

Part 4 of the Bill amends the EastLink Project Act 2004 to ensure that the tolling provisions in that Act are consistent with recent changes to operator onus offences and with those that apply under the Melbourne City Link Act 1995.

Part 5 of the Bill amends the Melbourne City Link Act 1995 to apply recent changes to operator onus offences to City Link tolling, so that recipients of tolling invoices who were not driving can avoid responsibility by nominating the responsible person in relation to the vehicle.

Part 6 of the Bill amends the Road Management Act 2004 to establish a new set of arrangements for the funding and management of street lighting on arterial roads between the State and local governments, and to make amendments in relation to road management functions.

Part 7 of the Bill amends the Transport Act 1983 to transfer responsibility for the provisions regarding tow trucks from the Director of Public Transport and the Secretary to the Department of Infrastructure to VicRoads.

Content and Committee comment

[Clauses]

[2]. Some provisions in the Bill come into operation on the day after Royal Assent and other provisions commence on proclamation but with a longest forced commencement provision of not later than by 1 October 2008.

Road Safety Act 1986

Discrimination based on age of driver permitted – Equality before the law [5 and 6].

[5]. Inserts a new subsection (2A) into section 19 to provide that regulations which set out the procedures and requirements to be complied with before VicRoads can grant a driver licence, are able to provide for procedures and requirements that differ depending on the person’s age, experience or any other factor.

[6]. Inserts a new subsection (4) into section 21 to provide that regulations may provide that probationary licences granted to people under the age of 21 years may have longer terms than the terms that usually apply to people who are 21 years of age or more. Also refer to Charter report below.

[9]. Inserts a new section 68B to provide that if a driver deliberately or recklessly enters a level crossing when warning lights or bells or a boom gate are operating; a train or tram is visible or has sounded a warning; or there is a blockage in the road beyond the crossing, he or she commits an offence. Also refer to [15] below.

[10 and 11]. Makes amendments related to tolling offences. Refer to Charter Report below and the Statement of Compatibility concerning collection and disclosure of information and relevant privacy issues.

Note: The Statement of Compatibility provides – The amendments made by clauses 10 and 11 allow vehicle operators to provide personal information about a ‘responsible person’ they wish to nominate for the purposes of collecting a relevant toll under part 4 and part 5 of the bill which amend the EastLink Project Act 2004 and the Melbourne City Link Act 1995, respectively.

Under amendments made by part 4 and part 5, the operator of a vehicle will have default liability to pay tolls charged to it, unless it can nominate another person as the person responsible for that payment. Making such a nomination will involve divulging personal information and will allow an enforcement agency to use that information to pursue the nominated person.

Right to property – confiscation or impoundment for offences

[15]. Inserts a new paragraph (ea) in subsection 84C(1) to make the new offence of deliberately or recklessly entering a level crossing (see [9] above) one of the offences that will give rise to the impoundment, immobilisation or forfeiture (after a third offence) of a motor vehicle under Part 6A. Refer to Charter report below and the Statement of Compatibility.

Disclosure of information – privacy

[16]. Inserts paragraphs (ic), (id) and (ie) into subsection 92(3). Section 92 of the Act prohibits use or disclosure of personal or commercially sensitive information held by VicRoads except for specified purposes listed in subsection (3). The new paragraphs will enable information to be used and disclosed for a number of further purposes including to enable a person or body approved by the Minister to locate and contact missing persons or to facilitate reunion of families and friends. Also refer to Charter Report below and the Statement of Compatibility.

Freedom of movement – Presumption of innocence

[20]. Inserts a new Part 10A into the Act (new sections 191A to 191ZZZD) to establish a new scheme for managing heavy vehicle driver fatigue.

The Committee notes these extracts from the Statement of Compatibility –

Freedom of movement

New sections 191ZZJ and 191ZZK authorise an inspector under the Road Safety Act 1986 who believes the driver of a fatigue-regulated heavy vehicle has worked a period in excess of the maximum period allowed under a maximum work requirement, or who has taken a rest period that is shorter than the rest period required under a minimum rest requirement, to issue a written notice requiring the driver to take a rest or to work for a shorter period.

New section 191ZZL authorises an inspector under the Road Safety Act 1986 to issue a written notice requiring a driver to stop work immediately and not work again for a stated period if the inspector believes the driver is impaired by fatigue. An inspector may authorise a person who is qualified to do so to drive the vehicle to a suitable rest place.

These provisions engage a person’s right to freedom of movement in Victoria because they enable an inspector to require a person to rest before continuing to drive a fatigue-regulated heavy vehicle until certain requirements of rest are satisfied.

Presumption on innocence

The intent of the new provisions is to establish a scheme to properly manage fatigue in the drivers of heavy vehicles on an industry-wide basis, thus improving safety on Victorian roads. It aims to do so by imposing criminal liability, in cases where the driver of a heavy vehicle contravenes maximum work or minimum rest requirements, and in some cases work diary requirements, on a ‘chain of responsibility’ basis.

New section 191B defines ‘fatigue regulated heavy vehicle’. The requirements set out in new part 10A will generally apply to such vehicles. A ‘fatigue regulated heavy vehicle’ is a motor vehicle or combination with a gross mass of more than 12 tonnes, or a bus. Expressly excluded from the definition are trams, motor homes and vehicles that primarily operate off public roads, such as agricultural machinery and road building plant.

New sections 191D-191K impose duties on various persons (‘parties in the chain of responsibility’) who may be liable for an offence where a driver of a fatigue-regulated heavy vehicle contravenes a maximum work requirement, a minimum rest requirement or a work diary requirement.

These provisions also provide defences for parties in the chain of responsibility.
A person (other than an operator) who was in a position to influence the conduct of the driver will be able to invoke the reasonable steps defence set out in new section 191ZZP.

New section 191ZZP provides that for a person who has the benefit of the reasonable steps defence, it is a defence if the person charged establishes that:

    • the person did not know, and could not reasonably be expected to have known, of the contravention; and

    • either the person took all reasonable steps to prevent the contravention or there were no steps the person could reasonably have taken to prevent the contravention.

    • New section 191ZZQ sets out various matters to which a court may have regard when deciding whether things done or omitted to be done by a person charged constitute reasonable steps.

    • New section 191ZZO(2) provides that a court must consider a person to have taken reasonable steps to prevent an act or omission that led to a contravention if the person establishes that they did certain things to prevent the act or omission. In general terms, those things include identifying and assessing (at or within specified times) aspects of their activities that may lead to a contravention of a fatigue management requirement, and taking steps to eliminate or minimise the risk.

    • New section 191ZZS enables a person charged with a fatigue management offence to establish that they took all reasonable steps to prevent the contravention by providing proof that they complied with relevant standards and procedures, including an industry code of practice.

    • New section 191ZZX provides that proceedings can be taken against more than one person who is liable to be found guilty of a fatigue management offence. Proceedings may be taken against a person regardless of whether proceedings have been taken against anyone else, and regardless of the outcome of those proceedings.

Effectively, a number of people including the owner and persons involved in the scheduling of trips and the loading and consigning of goods may be deemed to have committed the same offence as the driver, unless they can establish the existence of the reasonable steps defence.

The scheme is intended to place an evidential onus on parties in the chain of responsibility to establish their innocence. The offences carry penalties.

The provisions engage the right to be presumed innocent until proven guilty under section 25(1) of the charter because various influencing persons and their associates are effectively deemed to be guilty until they establish that they are innocent. Overseas jurisprudence indicates that this kind of reverse onus provision has been widely held to amount to a limitation on the right to be presumed innocent.

Notes: From the explanatory memorandum – These provisions implement the National Transport Commission’s model legislation on fatigue management for drivers of heavy vehicles, subject to some minor departures. The current legislative provisions deal with driver working hours in somewhat narrow and prescriptive terms. The new model legislation is intended to address all aspects of the driver fatigue problem rather than focussing on hours of work.

New section 191D imposes a duty on a driver of a fatigue regulated heavy vehicle not to drive on a road while impaired by fatigue. A person charged with this offence does not have the benefit of the mistake of fact defence.

New section 191E imposes duties on other parties in the chain of responsibility (defined in new section 191A) to prevent driver fatigue. It requires that a party in the chain of responsibility take all reasonable steps to ensure that a person does not drive the vehicle on a road while the person is impaired by fatigue. A person charged with this offence does not have the benefit of the mistake of fact defence. The penalty for a party in the chain of responsibility failing to take all reasonable steps to ensure that a person does not drive while impaired by fatigue is the penalty for a critical risk offence.

New section 191F imposes duties on employers, contractors and operators and requires them to take all reasonable steps to ensure that their business practices will not cause or permit the driver to drive while impaired by fatigue, or in breach of applicable work/rest hours requirements.

New subsection 191G imposes a duty on a scheduler to take all reasonable steps to ensure that the driver’s schedule for driving the vehicle will not cause or permit the driver to drive while impaired by fatigue or in breach of work/rest requirements. A person charged with this offence does not have the benefit of the mistake of fact defence.

Section 191H imposes duties on consignors and consignees of goods for transport or transported by a regulated heavy vehicle and provides that they must take all reasonable steps to ensure that the terms of the consignment, including, for example, the delivery time, will not result in, encourage or provide an incentive to a driver, employer, prime contractor or operator to cause or permit the driver to engage in unlawful conduct. A person charged with this offence does not have the benefit of the mistake of fact defence.

New section 191I imposes duties on loading managers and provides that they must take all reasonable steps to ensure that the arrangements for loading and unloading regulated heavy vehicles at the premises at which he or she is the loading manager will not cause or permit the driver to engage in unlawful conduct. A person charged with this offence does not have the benefit of the mistake of fact defence.

Each of the new sections 191L, 191M and 191N create offences for drivers who fail to observe applicable working times and rest times, and for other parties in the chain of responsibility who fail to ensure drivers do not contravene applicable work and rest times. Other parties in the chain of responsibility, except for operators, have the benefit of the reasonable steps defence.

Each of the new sections 191L, 191M and 191N also provide that a person charged with an offence under those sections does not have the benefit of the mistake of fact defence.

New sections 191O and 191P create offences for drivers who fail to observe stipulated hours, and for other parties in the chain of responsibility who fail to ensure drivers do so. Parties in the chain of responsibility, except for operators, have the benefit of the reasonable steps defence but a person so charged does not have the benefit of a mistake of fact defence.

New section 191Q requires drivers to observe maximum work times and minimum rest times specified in the certificate for the accreditation under which the driver is working and provides that other parties in the chain of responsibility must ensure that drivers do not contravene the applicable work and rest times. Other parties in the chain of responsibility, except for operators, have the benefit of the reasonable steps defence but do not have the benefit of the mistake of fact defence.

New section 191R sets out the circumstances in which a driver may, and must not, change from one work/rest hours option to a different work/rest hours option. A person charged with an offence under the section does not have the benefit of the mistake of fact defence.

New section 191W requires the owner of a fatigue regulated heavy vehicle to ensure that an odometer fitted to the vehicle is maintained to the standard specified by the Fatigue Authorities Panel. A person charged with an offence under this section does not have the benefit of the mistake of fact defence but provides that if a driver’s employer or operator is charged with an offence they have the benefit of the reasonable steps defence.

New section 191X imposes obligations on employers, prime contractors, operators and schedulers to ensure driver compliance with the record keeping duties and provides that such a person, other than the operator, has the benefit of the reasonable steps defence but does not have the benefit of the mistake of fact defence.

Freedom of movement – Order to stop driving – 191ZZJ, 191ZZK, 191ZZL, 191ZZM

New sections 191ZZJ and 191ZZK authorise an inspector under the Act who believes the driver of a fatigue regulated heavy vehicle has worked a period in excess of the maximum period allowed under a maximum work requirement, or who has taken a rest period that is shorter than the rest period required under a minimum rest requirement, to issue a written notice requiring the driver to take a rest or to work for a shorter period.

New section 191ZZL authorises an inspector under the Act to issue a written notice requiring a driver to stop work immediately and not work again for a stated period if the inspector believes the driver is impaired by fatigue. An inspector may authorise a person who is qualified to do so to drive the vehicle to a suitable rest place.

New section 191ZZM authorises an inspector under the Act to issue a written notice requiring a driver to stop work and not work again for up to 24 hours where the driver has failed to produce a work diary upon request of the inspector; or produced a document that is not a work diary or which the inspector reasonably believes cannot be relied upon as an accurate record of time spent working or resting.

Reasonable steps defence

New sections 191O and 191ZZP sets out what constitutes reasonable steps and provides that a person who has the benefit of the reasonable steps defence under Part 10A has a defence to a charge for an offence against that section if the person charged proves that the person did not know, and could not reasonably be expected to have known, of the contravention; and either the person took all reasonable steps to prevent the contravention or there were no steps the person could reasonably have taken to prevent the contravention.

New subsection 191ZZT explains the effect of an offence provision which this section states that a person does not have the benefit of the mistake of fact defence, which is that the person is not able to rely on the defence of honest and reasonable mistake of fact.

New section 191ZZX provides that proceedings can be taken against more than one person who may be guilty of a fatigue related offence regardless of whether proceedings have been taken against anyone else, and regardless of the outcome of those proceedings.

New section 191ZZY provides that nothing in new Part 10A affects any power of a court, a tribunal, the Corporation or an inspector apart from Part 10A.

New section 191ZZZ provides that there cannot be any contracting out of obligations under Part 10A. A term of a contract that purports to limit the effect of that Part is void.

New section 191ZZZC sets out the decisions of VicRoads under Part 10A which are subject to internal review.

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’.

Criminal liability – reverse onus provisions – presumption of innocence – duties on persons in chain of responsibility to take reasonable steps to prevent contravention of scheme to regulate and manage driver fatigue – 191E, 191F, 191G, 191H, 191I

The Committee notes the provisions in the new Part 10A that place the onus on a person to demonstrate that they took reasonable steps to prevent the contravention (191ZZP) or that there were no steps that the person could have taken to prevent the contravention. The Committee notes that the defendant will need to lead some evidence relevant to establishing that defence and that relevant matters in deciding whether acts or omissions constitute reasonable steps are provided in new section 191ZZQ.

The Committee observes that many of the matters that may make up such a defence are matters not readily available to the prosecution but are more readily accessible to the defendant, that is, that the reasonable steps are in the peculiar knowledge of the defendant. The Committee considers that imposing the onus on the defendant in certain circumstances may be justified to provide a reasonable balance between the effective enforcement of a regulatory scheme, being the combating of driver fatigue, and the rights of defendants, being the ordinary requirement in criminal / penalty offences that the prosecution prove it’s case.

The Committee also notes the detailed Charter section 7(2) analysis in the Statement of Compatibility and further refers to the Charter report below.

[29]. Inserts new Schedules 3, 4 and 4A relevant to work and rest hours applicable to the provisions introduced by the Bill.

EastLink Project Act 2004

[47]. Substitutes for sections 204 and 205 of the EastLink Project Act 2004 six new sections that replace the existing tolling offence with a process for the registration of vehicles for travel in a toll zone.

New section 204(1) makes it an offence to drive in a toll zone without being registered by the Freeway Corporation. Registration is achieved by entering into an agreement or arrangement with the Freeway Corporation under new sections 205A or 205B.

The offence occurs at the time of driving in the toll zone. This differs from the current provision in which the offence occurs at the time a demand for payment, for any relevant toll and administration fee for a trip, is not paid.

[62 to 73]. Part 5 of the Bill replaces the “owner onus” system with the “operator onus” system and thus brings the Melbourne City Link Act 1995 system in relation to toll invoices into line with the system applicable to camera and parking offences under the Road Safety Act 1986, where the identity of the offender is not established at the time the offence is detected.

Note: From the explanatory memorandum – The “operator onus” system provides for a chain of nominations of persons who had “possession or control” of a vehicle detected using a tollway. Responsibility for the offence rests with the operator or the last person nominated who is unable or unwilling to nominate anyone else.

The current system is based on the nomination of “drivers” only. This approach is of limited value if the vehicle has passed from person to person several times before the offence was committed. In such situations, the vehicle’s operator may have no knowledge of the identity of the driver. Further, the existing system is of limited utility where companies or other organisations are links in the “chain” of control over the vehicle. For example, if a vehicle is leased to a company, the registered operator cannot nominate the company because a company cannot be the driver.

Melbourne City Link Act 1995

[64]. Deals with liability to pay toll and administration fees and substitutes “owner” with “operator” in section 72(2) of the Act thus deeming the operator of a vehicle to be the driver of that vehicle at the time it was driven in a toll zone.

[74 to 80]. Part 6 establishes a new set of arrangements for the funding and management of street lighting on arterial roads, with the cost being shared between the State (through VicRoads) and local governments.

[86]. Provides for the automatic repeal of this amending Act on 1 October 2009.

Charter Report

Keywords – Reasonable limits – Regulation of driving – Age discrimination – Movement – Privacy – Property – Imprisonment for breach of contract – 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.’

The Committee notes that the Bill relates to the regulation of common public behaviour (specifically driving) in order to promote public order and safety and for the enforcement of that regulation. The Committee observes that such legislation inevitably engages a variety of human rights, but that reasonable provisions will typically satisfy Charter s.7(2), as well as internal limits on particular rights.

The Committee observes that the Statement of Compatibility incorrectly refers to clause 15 as clause 16 and vice versa. The Committee also observes that the Statement incorrectly describes new section 191ZZP (inserted into the Road Safety Act 1986 by clause 20) as placing an ‘evidential onus’ on criminal defendants, whereas it places an onus of proof on those defendants.

The Statement of Compatibility identifies several amendments of the Road Safety Act 1986 that are said to engage the following Charter rights:

  • Age discrimination (Charter s.8(3)): Provisions permitting different procedures for obtaining a licence and terms for probationary driver licences depending on the driver’s age (clauses 5 and 6, amending ss. 19 & 21)

  • Movement (Charter s.12): Provisions amending how driving is licensed (clause 5, amending s.19); criminalising unsafe entry into a level crossing and providing for licence removal and forfeiture of a vehicle (clause 9, inserting a new s.68B); and authorising inspectors or courts to bar drivers of heavy vehicles from driving in certain circumstances (clause 20, inserting new sections 191ZZJ – 191ZZM; and clause 23, amending s.192)

  • Privacy (Charter s.13(a)): Provisions requiring the owner of a vehicle to reveal personal information about the person who was responsible for it at the time of a tolling offence to avoid liability for that offence (clause 11, amending s.84BE); and permitting VicRoads to disclose private information for the humanitarian purposes, conducting road safety research, disclosing road safety information or advice, or for the purpose of issuing or defending proceedings relating to road management functions or infrastructure damage (clause 16, amending s.92).

  • Property (Charter s.20): A provision including licence removal and vehicle forfeiture as penalties for people convicted of entering a level crossing unsafely (clause 15, amending s.84C)

  • Imprisonment for breach of contract (Charter s.21(8)): Provisions extending existing criminal offences for non-payment of tolls, which are punishable by fines, given that non-payment of a fine may attract imprisonment under Division 2 of Part 12 of the Infringements Act 2006 (clauses 9 & 15, inserting a new s.68B and amending s.84C.) The Committee observes that s.160(3) of the Infringements Act 2006 (which provides for a court to find alternatives to imprisonment for fine default where it would be excessive, disproportionate or harsh to do otherwise) is likely to be interpreted, under Charter s.32(1), as barring imprisonment for a fine resulting from a failure to perform a contractual obligation.

  • Presumption of innocence (Charter s.25(1)): Provisions making people in the chain of responsibility for a heavy vehicle driver’s actions criminally responsible for the driver’s contravention of rest requirements unless those people can prove that they were unaware of the contravention and took all reasonable steps to prevent it (clause 20, inserting new section 191ZZP); and requiring owners of vehicles that infringe tolling rules to nominate a responsible person in order to avoid liability for the offence (clause 10, amending s.84BB.) The Committee observes that reverse onus provisions are not unusual in offence provisions that make one person criminally responsible for another’s conduct.

In each instance the Statement of Compatibility contends that the respective rights are not infringed or are subject only to reasonable limits under Charter s.7(2). Having considered the above Charter rights and provisions, the Committee is satisfied that the all of 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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State Taxation and Accident Compensation Acts Amendment Bill 2007

Introduced: 30 October 2007
Second Reading Speech: 1 November 2007
House: Legislative Assembly
Member introducing Bill Ms Maxine Morand MLA
Minister responsible Mr John Lenders MLC
Portfolio responsibility: Treasurer


Purpose

The Bill amends the Congestion Levy Act 2005 to provide –

  • an exemption for parking spaces owned by consulates, consular officers and consular employees, and their family members;

  • an indemnity which applies between owners and operators of public car parks; and

  • an ability for owners of private car parks to pass through the full cost of the congestion levy to car park users, including any GST payable by the owner on the amount of the levy received from the user.

The Bill amends the Land Tax Act 2005 to –

  • clarify the land tax liability of land held by personal representatives of deceased estates during the period of administration of that estate;

  • extend the principal place of residence exemption to land that is used and occupied as a principal place of residence by a person holding a right to reside on the land granted under a will;

  • increase the period of the principal place of residence exemption for deceased estates;

  • provide for the use of valuations of land based on occupancy on the land for assessing land tax;

  • make miscellaneous amendments to the trust provisions.

The Bill also amends the Accident Compensation Act 1985 to increase the scope for the Victorian Workcover Authority to provide car and home modification benefits to catastrophically injured workers.

Content and Committee comment

[Clauses]

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

[4]. Exempts certain parking spaces owned by consular officials from the congestion levy.

[5 to 7]. Amend the Congestion Levy Act 2005 to provide an indemnity between owners and operators of public car parks and ensures that owners can pass on the full cost of the levy to car park users including GST. Clause 7 provides that these amendments apply from 1 January 2006 (the commencement of the Act). Where any liability arises to any person the Bill provides that they have 90 days from the commencement to pay the relevant amount. Also refer to Charter report below.

[22]. Makes amendments to section 99 of the Accident Compensation Act 1985 concerning payments for vehicle or home modification costs in respect to persons suffering major injuries.

[24]. Provides that the benefits introduced by the Bill are to be indexed and are to apply to any injury whether before or after the commencement of the amendments.

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

Charter Report

Keywords – Property – Retrospective imposition of civil obligation to pay money to someone else – Whether in accordance with law

Charter s.20 provides that people must not be deprived of property ‘other than in accordance with law.’ A statutory deprivation of property will not breach Charter s.20 if it is for a non-arbitrary purpose and is proportionate to that purpose.

The Committee notes that two amendments to the Congestion Levy Act 2005 potentially make individuals civilly liable to pay money to others:

  • Clause 5 (inserting a new s.33A) requires one person to indemnify another for the amount of the congestion levy where the first person has the power to set car parking fees and the other is liable to pay the levy;

  • Clause 6 (amending s.34(2)) requires a user of a parking space to pay the GST on the congestion levy to a car park owner.

The Committee considers that these clauses may engage the Charter’s right to property.

The explanatory memorandum remarks that the purpose of clause 5 is ‘to encourage owners and operators of public car parks to pass on the full cost of the levy to car park users through increased parking fees, which is consistent with the aim of the congestion levy to reduce traffic congestion’ and that the purpose of clause 6 is ‘to ensure that owners of private car parks can pass on the full cost of the congestion levy to car park users.’ The Committee observes that clause 7, inserting new sections 38 and 39 into the Congestion Levy Act 2005, makes these obligations retrospective to 1 January 2006 (when the Act commenced.)

While the Committee feels that the retrospective imposition of obligations may not achieve the purpose of changing the behaviour of drivers or car park owners, the Committee observes that clauses 5 and 6 redistribute liability for the congestion levy in an equitable, and hence non-arbitrary, manner. The Committee therefore considers that clauses 5, 6 and 7 do not infringe the Charter’s right to property.

The Committee makes no further comment

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Victorian Energy Efficiency Target Bill 2007

Introduced: 31 October 2007
Second Reading Speech: 1 November 2007
House: Legislative Assembly
Member introducing Bill Hon. Peter Batchelor MLA
Portfolio responsibility: Minister for Energy and Resources


Purpose

The Act will promote the reduction of greenhouse gas emissions by establishing the Victorian Energy Efficiency Target scheme and will confer functions on the Essential Services Commission (the ‘ESC’) to administer the scheme.

Note: From the Statement of Compatibility – The purpose of the Bill is to promote the reduction of greenhouse gas emissions by establishing the Victorian Energy efficiency target (VEET) scheme. The VEET scheme operates so that individual consumers who undertake activities to abate the use of energy are entitled to create, or assign the right to create, energy efficiency certificates which can then be sold to retailers who are required to surrender a certain amount of certificates each year to the Essential Services Commission (commission).

The VEET scheme operates to promote activities that will contribute to a reduction in greenhouse gas emissions by consumers of electricity and gas and to encourage investment, employment and technology development in industries that supply goods or services which reduce the use of electricity and gas by consumers.

Content and Committee comment

[Clauses]

[2]. The Act will, subject to earlier proclamation, come into operation on 1 January 2009.

Note: From the Second Reading Speech – It is proposed to commence the scheme following the making of regulations under the Bill.

[9 to 26]. Part 3 of the Bill deals with energy efficiency certificates including the accreditation process under the scheme and the creation, form, content, transfer, registration, expiry and surrender of energy efficiency certificates.

[20]. Provides that a person who is not entitled to create certificates must not do so.

[41 to 55]. Part 7 provides for the ESC to appoint persons as authorised officers and makes provision for the exercise of entry and search powers.

[44]. Provides that an authorised officer may enter premises at any reasonable time to exercise monitoring powers. Entry must be with the occupier’s consent or pursuant to a monitoring warrant.

[49 and 50]. Empowers an authorised officer to ask for relevant information or require the production of a relevant document where he or she has entered premises with consent or under a monitoring warrant.

[51]. Creates an offence of failing, without reasonable excuse, to answer a question or produce a document under clause 50.

Protection against self-incrimination – protection does not apply in respect to documents

[52]. Provides for protection against self-incrimination. The protection does not apply to the production of documents required to be kept under the Act notwithstanding their tendency to incriminate the person required to produce them.

[55]. Provides for an authorised officer to apply to a magistrate for a monitoring warrant.

[56]. Provides that an affected person in relation to a reviewable decision may request that the ESC reconsider that decision.

[60]. Empowers the ESC to require production of information and documents relevant to the operation of the Act. Such a requirement will be made by written notice. The power extends to compel a person to appear before the ESC.

[61]. Creates an offence of failing, without reasonable excuse, to comply with a notice under clause 60.

Protection against self-incrimination

[62]. Provides for protection against self-incrimination without any limitation in respect to the information provisions in section 60.

[65]. Creates two offences: disclosure of confidential or commercially sensitive information and use of such information to obtain a pecuniary advantage.

[68]. Creates the offence of knowingly providing false or misleading information or documents to the ESC.

[69]. Creates the offence of failing to provide documents to the ESC as required.

[76]. Requires a review of the Act to be undertaken by 31 December 2011.

[77 to 79]. Amends the Essential Services Commission Act 2001 so as to enable it to perform the functions conferred on the ESC by the Bill.

[79]. Provides for the automatic repeal of the amending Part 9 of the Act on 1 January 2010.

Charter Report

Keywords – Reasonable limits – Carbon trading scheme – Privacy – Property

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

The Committee notes that the Bill relates to the regulation of trading (specifically carbon trading) and the enforcement of that regulation. The Committee observes that such legislation inevitably engages a variety of human rights, but that reasonable provisions will typically satisfy Charter s.7(2), as well as internal limits on particular rights.

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

Privacy (Charter s.13(a)): provisions –

  • requiring applicants for accreditation to disclose information (or consent to the disclosure of information) considered necessary for the purposes of the Victorian Energy Efficiency Target scheme to the Essential Services Commission (clauses 9 & 10)

  • requiring the disclosure of information in certificates, notices and registers pursuant to the scheme (clauses 21, 38(4), 58 & 59)

  • providing for search of premises for items relating to certificates or scheme acquisitions pursuant to a monitoring warrant issued by a magistrate (clause 48(1)(a))

  • requiring persons at a premises entered pursuant to a monitoring warrant to disclose information and documents relating to certificates or scheme acquisitions to an authorised officer (clauses 50 & 51)

(The Statement of Compatibility also regards these provisions as engaging the right to freedom of expression.)

Property (Charter s20): Provisions for the surrender of energy efficiency certificates if an accredited person breaches an undertaking not to claim a benefit under another scheme or if the certificate was created in breach of a criminal provision (clauses 38(2) & 40(2)); and the seizure of items as evidence of an offence (clause 48(1)(h))

In each instance the Statement of Compatibility contends that the respective rights are not infringed. Having considered the above Charter rights and provisions, the Committee is satisfied that all of the measures so engaged do not warrant any special mention or adverse comment in respect to possible incompatibility with human rights.

Keywords – Privacy – Liberty – People with information or documents that are relevant to the operation of the Act – Requirement to provide information or documents or to appear before the Essential Services Commission – Criminal offence to fail to comply or to supply false information or documents

Charter s.13 gives people the right not to have their ‘privacy… unlawfully or arbitrarily interfered with’. Charter s.21(1) gives people ‘the right to liberty’.

The Committee notes that clause 60 empowers the Essential Services Commission to issue a written notice to any person the Commission believes ‘has information or a document that is relevant to the operation of the Victorian Energy Efficiency Target Act 2007 (once it is enacted.) The Committee also notes that the notice can require that the information or document be supplied in a manner specified, including requiring the person to attend before the Commission. The Committee further notes that non-compliance (without a reasonable excuse) is a criminal offence (clause 61), as is the supply of false or misleading information or a false document (clause 68). The Committee considers that clause 60 engages the rights to privacy and liberty, as well as incidentally engaging the rights to movement and expression.

The Statement of Compatibility – which characterises clause 60 as only engaging the rights to movement and expression – remarks that the requirement to supply information can be justified as a reasonable limitation on the same grounds as clause 50 and that the requirement to attend before the commission can be justified as reasonable because ‘it is integral to the operation of the bill that the commission has the ability to make inquiries when investigating matters under the bill.’ The Committee observes that clause 60 may be considerably wider than clause 50, which does not include a power of summons and is limited to people at premises that are the subject of a court-ordered monitoring warrant and to questions relating to certificates, scheme acquisitions or information transferred under the Act. By contrast, clause 60 may permit inquiries and summons of any person, including non-participants in the VEET scheme, who happen to possess information or documents that are in any way relevant to how the scheme or the legislation operates.

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

  1. Why does clause 60 refer generally to any person who the Essential Services Commission has reason to believe has information or documents, rather than setting out specific people or classes of people that may be given a notice by the Commission?

  2. Why does clause 60 refer generally to any information or documents that are ‘relevant to the operation of this Act’, rather than setting out specific matters that a person may be required to reveal to the Commission?

  3. Why does clause 60 include the power to summon an individual to appear before the Commission?

  4. Why is clause 60 directly enforced by criminal offence provisions, rather than by sanctions under the VEET scheme or a power for a court, on application, to order a person to comply with a particular request?

Pending the Minister’s response, the Committee refers to Parliament for its consideration of whether or not clause 60, in combination with the criminal offence provisions in clauses 61 and 68, is a reasonable limit on the rights to privacy and liberty according to the test set out in Charter s7(2).

The Committee makes no further comment

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Scrutiny of Acts and Regulations Committee
Parliament of Victoria