Scrutiny of Acts and Regulations Committee
Alert Digest No 16 of 2007
The Bill was introduced into the Legislative Assembly on 9 October 2007 by the Hon. Rob Hulls MLA. The Committee considered the Bill on 29 October 2007 and made the following comments in Alert Digest No. 14 of 2007 tabled in the Parliament on 30 October 2007.
The Committee notes that the explanatory memorandum provides no advice for the reason for including sections 51 and 52 in the amendments made to section 7(1). The Committee draws attention to its Practice Note No. 1 in respect to the standard and content expected by the Committee of an explanatory memorandum. The Committee will seek further advice from the Attorney-General.
Thank you for your correspondence of 31 October 2007 on behalf of the Scrutiny of Acts and Regulations Committee regarding the Equal Opportunity Amendment (Family Responsibilities) Bill 2007 (the Bill).
The Committee notes that clause 6 of the Bill amends section 7 of the Equal Opportunity Act 1995 (the Act) to provide that discrimination means direct or indirect discrimination on the basis of an attribute, or a contravention of section 13A, 14A, 15A, 31A, 51 or 52. The Committee has asked for advice about the reason for including sections 51 and 52, which are existing sections of the Act, in the amendments made to section 7(1).
The Bill amends the Act to expand the range of what constitutes discrimination against parents or carers in employment and employment related areas. The Bill requires an employer, a principal or a firm not to unreasonably refuse to accommodate the parental or carer responsibilities of a person offered employment, an employee, a contract worker, a person invited to become a partner in a firm, or a partner in a firm. It will be discrimination for an employer, principal or firm to contravene this requirement. A person will be able to make a complaint about the contravention to the Victorian Equal Opportunity and Human Rights Commission but will not have to prove direct or indirect discrimination (as defined in the Act) to make out the complaint.
This approach is similar to the way current sections 51 and 52 of the Act operate. Section 51 prohibits discrimination by a person who refuses to allow reasonable alterations to be made to accommodation in order to meet the special needs of a person with an impairment. Section 52 prohibits discrimination by a person who refuses to provide accommodation to a person with an impairment because that person has a guide dog. It is understood that a person is able to make a complaint about the contravention of these sections without having to prove direct or indirect discrimination. However, this is not clear on the face of the Act. The Bill therefore clarifies that a contravention of sections 51 or 52 constitutes discrimination.
I thank you for the opportunity to respond to the Committee's request for further advice. I trust that this response allays the Committee's concern.
ROB HULLS MP,
19 November 2007
The Committee thanks the Minister for this response.
The Bill was introduced into the Legislative Assembly on 9 October 2007 by the Hon. Tim Pallas MLA. The Committee considered the Bill on 29 October 2007 and made the following comments in Alert Digest No. 14 of 2007 tabled in the Parliament on 30 October 2007.
Keywords – Freedom of expression – Peaceful assembly – Restrictions on protesters’ access to areas and vessels in port waters and land – Restrictions necessary to permit port bodies to carry out statutory powers, functions and objectives – Reasonable limitations – Adequacy of statement of compatibility
Charter s.15(2) gives every person ‘the right to freedom of expression’ including the ‘the freedom to seek, receive and impart information and ideas of all kinds’ in any ‘medium chosen by him or her.’ Charter s.16(1) gives every person ‘the right of peaceful assembly.’ Charter s28(3)(a) provides that a statement of compatibility must state how a Bill is compatible with human rights.
The Committee notes that clause 14, inserting a new division 2 of Part 5A into the Port Services Act 1995, provides for the making of declarations that any part of certain port waters and land or an area surrounding any vessel in certain port waters is ‘an area to which access is restricted’.
The Committee notes that events or vessels in port waters or land may attract political protestors, for example the entry of a war ship to port waters (as mentioned in the second reading speech) or dredging work. The Committee also notes that new section 85, which provides that a declaration of a restricted access area may be specific to particular vessels, persons, purposes, times or activities, may permit a declaration that is specific to particular protesters, protest activities or protests in general. The Committee further notes that the High Court of Australia in Levy v Victoria (1997) 189 CLR 579 held that a law banning protesters from an area where a politically controversial activity will occur, and therefore preventing them from collecting information about that activity or drawing public attention (via television coverage of proximate protests) to it, engaged (but, in that instance, did not infringe) the Commonwealth Constitution’s freedom of political communication. The Committee therefore considers that clause 14 engages Charter ss 15(2) and 16(1).
The Committee observes that, under Charter s.15(2), freedom of expression ‘may be subject to lawful restrictions reasonable necessary… for the protection of… public order’ and that, under Charter s.7(2), all Charter rights may be subject to ‘such reasonable limits as can be demonstrably justified in a free and democratic society.’ The Committee notes that, under new section 84(3)(a), declarations of restricted access (including the specifications under new section 85) must not be made unless the Minister ‘is satisfied that the declaration is necessary to enable’ the Port of Melbourne Corporation or the Victorian Regional Channels Authority ‘to carry out its powers or functions and to give effect to its objectives under the Act.’ The Committee also notes that, from 1st January 2008, Charter s.38(1) will (subject to Charter s.38(2)) require the Minister to consider the Charter rights of Victorians (including the rights of protesters) when making or continuing a declaration. The Committee therefore considers that clause 14 is a reasonable limit on the Charter’s freedom of expression and right to peaceful assembly.
However, the Committee is concerned that the Statement of Compatibility does not discuss the compatibility of the new Part 5A with the Charter’s rights to freedom of expression (aside from a minor enforcement provision) and peaceful assembly. The Committee reiterates its view stated in Alert Digest No. 9 of 2007 that:
The Committee resolves to write to the Minister expressing its concern about this statement of compatibility.
system.Thank you for your letter of 31 0ctober2007 advising as to the observations of the Scrutiny of Acts and Regulations Committee (Committee), on aspects of the Statement of Compatibility accompanying the Port Services Amendment Bill 2007.
I refer to the Committee's view that clause 14 of the Bill inserting a new Part 5A into the Port Services Act 1995 engages ss15(2) (right to freedom of expression), and 16(1) (right of peaceful assembly), of the Charter of Human Rights and Responsibilities Act 2006 (the Charter). 1 also note that the Committee concluded that the limitations on the right to freedom of expression and right of peaceful assembly were reasonable.
Your letter nevertheless draws attention to the concern of the Committee that the Statement of Compatibility does not refer to the compatibility of the new Part 5A with these rights, except in relation to a minor enforcement provision.
Following advice from my officers and following consultation by my officers with the Department of Justice, I was advised the rights were not raised by the proposed provisions as the Bill does not expressly prohibit protest activity or peaceful assembly. Part 5A primarily restricts and is intended to restrict freedom of movement (apart from freedom of expression in relation to the proposed enforcement provision, being section 88D).
If any other rights were to be potentially affected, this would be as an operational result of restricting freedom of movement, rather than as a direct consequence of an express restriction or prohibition in the Bill. On one view, any restriction on freedom of movement would indirectly and as a secondary or operational effect, restrict freedom of expression and peaceful assembly because persons could not impart information nor congregate where the movement or access was restricted.
In relation to the right to freedom of expression, it is agreed that in the operation of proposed section 84 and application of section 85, there is potential to restrict freedom of expression if the declaration were cast so that protestors could not enter the restricted access areas or protest activity could not occur within it.
In relation to the right to peaceful assembly, it is also agreed that an operational consequence of creating a restricted access area is that persons restricted could not therefore assemble together in that area and that if the declaration were cast so that protestors could not enter or protest activity could not occur within the restricted access area, the freedom of assembly of protestors would be restricted.
I agree with the Committee that in any event, clause 14 of the Bill provides a reasonable limit on these rights.
If there were to be any restrictions on protestors or protest activity through the declaration of a restricted access area, these would constitute lawful restrictions reasonably necessary for the protection of public order in accordance with section 15(3)(b) of the Charter.
There may be circumstances where persons seeking to carry out protest activity pose a safety risk to themselves and others in relevant port waters. In such situations, declaration of a restricted access area restricting their access specifically, or a more general category of persons or activities within which they may fall, may be necessary to manage that safety risk and ensure that important works or activities in connection with the functions and powers of Port of Melbourne Corporation or the Victorian Regional Channels Authority are carried out.
Similarly, while any restrictions on protestors or protest activity through the declaration of a restricted access area may restrict the right of those persons to peaceful assembly, the restriction is reasonable and justified under section 7 of the Charter.
Further, the controls on the creation and nature of the restricted access area, such as maximum size of the areas, maximum duration of the declaration, and the requirement that the Minister is satisfied that the areas are required for the relevant ports to carry out their powers or functions and to give effect to their statutory objectives, are appropriate controls to ensure that the restricted access areas are not created arbitrarily and are proportionate to the safety risks they seek to manage.
Finally, in exercising my powers to declare or continue the declaration of a restricted access area, I would make my decision in accordance with my obligations under the Charter to properly consider the Charter rights of individuals (including protestors), and act compatibly with the Charter.
I trust this response is of assistance and if the Committee has any further queries, I would be pleased to assist with further information.
TIM PALLAS MP
29 November 2007
The Committee thanks the Minister for this response.