Scrutiny of Acts and Regulations Committee

Alert Digest No 9 of 2007

Tuesday, 17 July 2007

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Energy Legislation Amendment Bill 2007

Introduced: 19 June 2007
Second Reading Speech: 20 June 2007
House: Legislative Assembly
Minister responsible: Hon. Peter Batchelor MLA
Portfolio responsibility: Minister for Energy and Resources


Purpose

The Bill amends the Electricity Industry Act 2000 (the ‘Act’) to provide for fair and reasonable prices, terms and conditions for electricity generated by small renewable energy generation facilities and purchased by certain electricity retailers.

The Bill also amends the Gas Industry Act 2001 to clarify the subject-matters the Market and System Operation Rules may deal with.

Content and Committee comment

[Clauses]

[2]. Other than sections 3 and 5 the provisions in the Bill will come into operation the day after Royal Assent. Sections 3 and 5 will come into operation not later than by 1 January 2008.

[3]. Inserts a new Division 5A (new sections 40F to 40N) into Part 2 of the Act to set out the terms and conditions for the purchase of small renewable energy generation electricity.

[9]. Provides for the automatic repeal of this amending Act on 1 January 2009.

The Committee makes no further comment

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Planning and Environment Amendment Bill 2007

Introduced: 19 June 2007
Second Reading Speech: 21 June 2007
House: Legislative Assembly
Minister introducing Bill: Hon. John Thwaites MLA
Minister responsible: Hon. Justin Madden MLC
Portfolio responsibility: Minister for for Planning and the
Minister for Water, Environment and Climate Change


Purpose

The Bill amends the –

  • Planning and Environment Act 1987 (the ‘Act’) to extend the powers of the Victorian Civil and Administrative Tribunal (VCAT) to cancel or amend planning permits issued at its direction.

  • Transfer of Land Act 1958 to provide for approved forms to be made available electronically.

  • Subdivision Act 1988 to make minor amendments.

Content and Committee comment

[Clauses]

[2]. Other than section 9 the provisions in the Bill come into operation on the day after Royal Assent. Section 9 is to commence on proclamation but not later than by 1 September 2008. Section 9 concerns the form of the planning register.

Note: The Second Reading Speech and the explanatory memorandum states that the reason for the delayed commencement is to enable consequential regulations to be developed concerning the form of the planning register.

[4 to 6]. Clarify the responsibilities of a municipal council as a planning authority within its municipal district.

[11 to 14]. Provides a procedure to ensure that those permits issued at the direction of VCAT are able to be amended or cancelled and inserts a new section 90(1)(e) to ensure that a person who makes a request under the new provisions is entitled to be heard at the VCAT.

[21]. Amends section 40(1)(c) of the Subdivision Act 1988 to clarify that an applicant for subdivision may apply to the VCAT for review of a decision of a municipal council or referral authority to require alterations to an engineering plan.

[23]. Provides for the automatic repeal of this amending Act on 1 September 2009.

The Committee makes no further comment

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Summary Offences Amendment (Upskirting) Bill 2007

Introduced: 19 June 2007
Second Reading Speech: 21 June 2007
House: Legislative Assembly
Minister responsible: Hon. Rob Hulls MLA
Portfolio responsibility: Attorney-General


Purpose

The The Bill amends the Summary Offences Act 1966 (the ‘Act’) so as to make it an offence in certain circumstances to observe, or capture or distribute visual images of, the genital or anal region of a person's body; and confer the power to issue a search warrant in respect of the offences.

The Committee notes this extract from the Statement of Compatibility –

In summary, the Bill:

  • makes it an offence to use an aid or device (such as a mirror or drilling a hole in a wall) to deliberately observe another person's genital or anal region (intimate body parts) in circumstances where it is reasonable for the other person to expect such observation could not otherwise be undertaken;

  • makes it an offence to visually capture (such as photograph or film) another person's intimate body parts in circumstances where it is reasonable for the other person to expect such a visual image could not be made;

  • makes it an offence to distribute (for example by sending, supplying or transmitting) a visual image made of another person's intimate body parts, without their consent to any distribution;

  • provides that where the subject of the visual image is incapable of giving consent, or is a child, that visual image can only be distributed in circumstances in which a reasonable person would regard the distribution as acceptable. However, the bill does not purport to interfere or replace current child pornography laws. A note is contained in the bill that the Crimes Act 1958 sets out current child pornography laws;

  • confers power to issue a search warrant in respect of an alleged visual capture or distribution offence.

Content and Committee comment

[Clauses]

[2]. Provides that the Bill comes into operation on the day after the day on which it receives the Royal Assent.

[3]. Inserts a new Division 4A in Part I of the Act containing 9 new sections (sections 40 to 41G).

New section 41 provides that an offence may be committed even if the subject of the observation or visual capturing is in a public place and makes it clear that the location of the proposed offence is immaterial, and may include a public place (depending on the elements and circumstances surrounding the alleged offending).

New section 41A makes it an offence to utilise a device to deliberately observe another person's genital or anal region in circumstances in which a reasonable person would expect that region could not be observed.
This is a summary offence punishable by a maximum penalty of 3 months' imprisonment.

New section 41B makes it an offence to intentionally visually record or otherwise visually capture another person's anal or genital region in circumstances in which a reasonable person would expect that region could not be so recorded or otherwise visually captured.

This is a summary offence punishable by a maximum penalty of 2 years' imprisonment.

New section 41C makes it an offence for the person who visually captures another person's genital or anal region to then distribute it.

This is a summary offence punishable by a maximum penalty of 2 years' imprisonment.

New section 41D(1) provides that the offences under section 41A (observation) or section 41B (visual capturing) do not apply to three particular sets of circumstances.

Paragraph (a) provides an exception where the subject of the observation or visual capturing has given express or implied consent to that action.

Paragraph (b) provides an exception for observation or visual capturing that is carried out by a person who merely accesses the Internet or a broadcasting or datacasting service.

Paragraph (c) provides an exception for law enforcement officers acting reasonably in the course of their duty.

New section 41D(2) provides that the offence under section 41C (distribution) does not apply to three particular sets of circumstances.

Paragraph (a) provides an exception where the subject of the visual image has given express consent, or there is implied consent, for distribution of that image to occur for a particular purpose.

Paragraph (b) provides an exception that may apply where the subject of the visual image is a child or is otherwise incapable of giving consent to distribution.

Paragraph (c) provides an exception for law enforcement officers acting reasonably in the course of their duty.

New section 41E provides that a member of the police force may apply to a magistrate for the issue of a warrant to search a particular place if that member believes on reasonable grounds that an offence has been committed against section 41A (observation), 41B (visual capturing) or 41C (distribution). The granting of a warrant must state listed conditions and must be in accordance with the Magistrates’ Court Act 1989.

Note: From the explanatory memorandum – Members of the police force do not currently have the right to apply for search warrants in relation to most summary offences. The power is appropriate in relation to the offences in this Bill, given they involve a potential breach of the privacy of people's intimate body parts.

New section 41F provides that police may seize any thing in addition to those things described in the warrant if the thing is a like thing, will afford evidence about an offence against the new section 41A, 41B or 41C, or is necessary to prevent its concealment, loss or use in the commission of such an offence.

New section 41G provides that, before executing a search warrant, a police member must—

  • announce that he or she is authorised by a warrant to enter the place; and

  • give any person at the place an opportunity to allow entry.

A police member can immediately enter a place if she or he believes on reasonable grounds that this is required to ensure the safety of any person or that the effective execution of the search warrant is not frustrated.

Charter of Human Rights and Responsibilities Act 2006

Statement of Compatibility

In the section of the Statement of Compatibility headed ‘Section 13(a) – right to privacy’ the Committee notes the incorrect references to the new sections 41B and 41C. These should be respectively references to new sections 41A and 41B, and the reference to new section 41D should be a reference to 41C.

General comment

The Committee accepts that the offence provisions proposed by this Bill may engage a number of Charter rights. The Committee observes that the rights so engaged are competing rights which are usefully canvassed in the Statement of Compatibility.

The Committee refers to the Parliament the question whether a reasonable and proportionate balance has been achieved by the measures introduced by this Bill.

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

The Committee makes no further comment

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Scrutiny of Acts and Regulations Committee
Parliament of Victoria