Scrutiny of Acts and Regulations Committee

Alert Digest No 13 of 2008

Ministerial Correspondence

[Table of Contents]


Abortion Law Reform Bill 2008

The Bill was introduced into the Legislative Assembly on 30 July 2008 by the Hon. Bob Cameron MLA. The Committee considered the Bill on 18 August 2008 and made the following comments in Alert Digest No. 10 of 2008 tabled in the Parliament on 19 August 2008.

Committee’s Comment

Charter Report

Privacy – Late abortions – Requirement that two medical practitioners hold reasonable belief that abortion appropriate in all the circumstances – Potential prosecution if belief is unreasonable – Whether unlawful interference in privacy

The Committee notes that clauses 5 and 7 provide that abortions may be performed on women who are more than 24 weeks pregnant ‘only’ if two medical practitioners each ‘reasonably believes that the abortion is appropriate in all the circumstances’. The Committee considers that clauses 5 and 7 may engage the Charter right of pregnant women to make private medical decisions (in consultation with their doctors) without unlawful interference.

The Explanatory Memorandum remarks:

A registered medical practitioner who performed an abortion on a woman who was more than 24 weeks pregnant without considering the relevant circumstances, or without seeking the opinion of a second registered medical practitioner will be liable to be found to have engaged in professional misconduct under the Health Professions Registration Act 2005.

The Committee observes that the consequences of clauses 5 and 7 may go further than this description. An abortion performed on a woman who is more than 24 weeks pregnant will be unlawful if either practitioner reaches an unreasonable belief that an abortion is appropriate in all the circumstances.

The Committee is concerned that such a practitioner may be open to prosecution for causing serious injury. Clause 10(2) expands the definition of ‘serious injury’ in s. 15 of the Crimes Act 1958 to include ‘the destruction, other than in the course of a medical procedure, of the foetus of a pregnant woman’. In contrast to the equivalent provision in NSW , clause 10(1) restricts ‘medical procedure’ to procedures done ‘in accordance with the Abortion Law Reform Act 2008’. The Committee notes that this definition was not part of the recommendations of the Victorian Law Reform Commission.

The Explanatory Memorandum remarks:

A broader definition of medical procedure is not required, as the substantive offences in sections 16 and 17 of the Crimes Act 1958 both include the element of “lawful excuse” such that other forms of medical procedure in which termination of pregnancy is not the primary intention are not caught by the offences.

The Committee observes that, if a doctor forms an unreasonable belief that an abortion on a woman is over 24 weeks’ pregnant is appropriate, clauses 5 and 7 appear to render the abortion unlawful and, therefore, may prevent that doctor from relying on any defence of ‘lawful excuse’ to a charge of intentionally causing serious injury.

The Committee considers that the threat of criminal prosecution for wrong decision-making about ‘appropriate’ medical treatment may amount to an unlawful interference in the privacy of pregnant women and their doctors.

The Committee will write to the Minister seeking further information about whether or not doctors who perform an abortion on a woman who is more than 24 weeks pregnant after forming an unreasonable belief that the abortion was appropriate in all the circumstances may be liable to prosecution. Pending the Minister’s response, the Committee draws attention to clauses 5, 7 and 10.


Operation of Charter’s savings provision for abortion and child destruction – Absence of statement of compatibility – Expansion of definition of serious injury to include foetal destruction – Whether existing criminal offences exempted from the Charter

The Committee notes that there is no Statement of Compatibility for the Bill. The Second Reading Speech remarks:

In accordance with section 48 of the Charter of Human Rights and Responsibilities, a statement of compatibility for the Abortion Law Reform Bill 2008 is not required. The effect of section 48 is that none of the provisions of the charter affect the Bill. This includes the requirement under section 28 of the charter to prepare and table a compatibility statement, and the obligation under section 32 of the charter to interpret statutory provisions compatibly with human rights under the charter.

The Committee observes that:

  • Charter s. 48 is limited to ‘any law applicable to abortion or child destruction’. The Bill is not (yet) law.

  • Charter s. 48 provides that nothing in the Charter ‘affects’ a law. Statements of compatibility have no legal effect.

  • Clause 10, in extending the definition of ‘serious injury’ in the Crimes Act 1958 to cover destruction of a foetus, goes beyond the current definitions of abortion and child destruction (which are presently limited to intentional conduct ) to cover reckless destruction, threats to destroy, conduct causing danger of destruction, negligent destruction, and dangerous driving causing destruction of foetuses. If clause 10 is classified as a law applicable to abortion or child destruction, then its effect may be to make a number of existing criminal offences applicable to abortion or child destruction and, hence, subject to Charter s. 48, exempting them from the effects of the Charter.

The Committee will write to the Minister seeking further information about the application of Charter s. 48 to the Bill and, in particular, whether or not clause 10 will exempt any existing criminal offences from the effects of the Charter.

Minister’s Response

I refer to your letter of 9 September 2008 with which you enclosed a copy of the Committee’s Charter Report in relation to the above Bill, contained in Alert 11 of 2008, seeking advice in relation to two matters raised in the Alert. As I introduced the Bill to the parliament, the Committee’s letter has been referred to me for response.

Consequences of an “unreasonable” belief

The first issue on which the Committee seeks my advice is in relation to the outcome in a hypothetical situation, if a doctor performed an abortion on a woman who was more than 24 weeks pregnant after unreasonably forming a belief that the abortion was appropriate in all the circumstances. The Committee has asked whether such a doctor might be liable to prosecution under one of the “causing serious injury” offences in the Crimes Act, as a result of the extended meaning of “serious injury” introduced into that Act by the Bill.

Although there are six offences in the Crimes Act relating to causing serious injury, only section 16 (intentionally causing serious injury), section 17 (recklessly causing serious injury), and section 24 (negligently causing serious injury) are relevant to the hypothetical case. Section 21 (threatening to cause serious injury), section 23 (recklessly placing another in danger of serious injury) and section 319 (causing serious injury through dangerous driving) are not relevant.

The offences set out in sections 16 and 17 both relate to causing serious injury “without lawful excuse”. The offence set out in section 24 is that of causing serious injury by negligently doing or omitting to do an act.

I understand the Committee’s concern to relate to the assessment of the registered medical practitioner’s “reasonable belief”. The concept of “reasonable belief” is well established in a number of legal contexts. The term “reasonable belief” means a belief based on reasonable grounds, that is, grounds which could lead a reasonable person in the same situation to the same belief. As the Abortion Law Reform Bill is concerned with the reasonable belief of a registered medical practitioner, the assessment of whether a belief was reasonable or not will be an assessment of whether another similarly qualified medical practitioner, with similar training and experience as the medical practitioner, and in possession of the same information, would be likely to form the same belief in those circumstances.

While the hypothetical case posed by the Committee is in theory possible, in practice I consider that there is little likelihood of such a problem occurring. This is because, under clause 5 of the Bill, an abortion may only be performed on a woman who is more than 24 weeks pregnant where two registered medical practitioners each are of the reasonable belief that abortion is appropriate in all the circumstances. Given that two doctors need to form the same belief, it is highly unlikely that the treating doctor would find herself or himself in the position that her or his belief was not judged reasonable, against the prevailing standard of the medical profession, as it would already have been demonstrably supported by the second registered medical practitioner.

In contrast, were a registered medical practitioner to perform an abortion on a woman more than 24 weeks’ pregnant without consulting a second medical practitioner as envisaged by the Bill, the treating medical practitioner may in some circumstances indeed be found not to have a “lawful excuse” for her or his conduct, and so be potentially criminally liable.

Application of the Charter to Clause 10 of the Bill

The second issue on which the Committee has sought my response is in relation to the application of section 48 of the Charter of Human Rights and Responsibilities to the Bill and, in particular, whether or not clause 10 of the Bill will exempt any existing criminal offences from the effects of the Charter.

The Committee notes in Alert 11 that the amendment to the definition of “serious injury” in section 15 of the Crimes Act has the effect of extending the law relating to destruction of a foetus, through the application of the defined term in other provisions of the Crimes Act. The Committee asserts that at present the offences contained in section 10 (child destruction) and sections 65 and 66 (performing unlawful abortion and supplying the means of abortion) are limited to intentional conduct, and contrasts this with the offences contained in section 17 (recklessly causing serious injury), section 21 (threatening to cause serious injury), section 23 (recklessly placing another in danger of serious injury) section 24 (negligently causing serious injury) and section 319 (causing serious injury through dangerous driving).

The Committee has sought my advice as to whether, because the Bill extends the operation of these offences, and the extended definition of “serious injury” is a law relating to abortion and therefore exempt from the effects of the Charter, the offences contained in sections 16, 17, 21, 23, 24 and 319 of the Crimes Act are therefore now also to be considered to be laws relating to abortion and exempt from the Charter. I confirm that, to the extent that the laws relate to child destruction and abortion, they will fall within the exemption provided by section 48. Whether future amendments to those provisions are to be characterised as laws relating to child destruction and abortion will be a matter to be determined by reference to the amendments proposed.

I trust that these responses will assist the Committee in its consideration of the Bill.

Maxine Morand MP
Minister for Women’s Affairs

7 October 2008

The Committee thanks the Minister for this response.

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Dangerous Goods Amendment (Transport) Bill 2008

The Bill was introduced into the Legislative Assembly on 9 September 2008 by the Hon. Tim Holding MLA. The Committee considered the Bill on 6 October 2008 and made the following comments in Alert Digest No. 12 of 2008 tabled in the Parliament on 7 October 2008.

Committee’s Comment

[2]

Delayed commencement – Inappropriate delegation of legislative power

The Committee refers to its Practice Note No. 1 concerning delayed commencement provisions exceeding one year from introduction in the Parliament. In such circumstances the Committee will seek to ensure that Parliament has sufficient information to determine whether a delay in commencement is justified. The Committee will seek further information from the Minister.

Minister’s Response

I refer to your correspondence dated 7 October 2008 in relation to the commencement date of the Dangerous Goods (Amendment) Bill 2008. I understand Steve Palmer of my office has also discussed the Scrutiny of Acts and Regulations Committee’s (the Committee) concerns with this Bill with the relevant legal adviser, Andrew Homer.

I confirm that it is intended that all provisions of the amending Act will commence operation by 31 December 2008, or shortly thereafter.

I trust this appropriately clarifies the matter for the Committee.

Thank you for writing to me on this matter, and should I be able to provide any further assistance, please do not hesitate to contact my office.

TIM HOLDING MP
Minister for Finance, WorkCover
and the Transport Accident Commission

15 October 2008

The Committee thanks the Minister for this response.

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Labour and Industry (Repeal) Bill 2008

The Bill was introduced into the Legislative Assembly on 30 July 2008 by the Hon. Rob Hulls MLA. The Committee considered the Bill on 18 August 2008 and made the following comments in Alert Digest No. 10 of 2008 tabled in the Parliament on 19 August 2008.

Committee’s Comment

Charter Report

Presumption of innocence – Offence of opening factories or warehouses or failing to provide holiday to employees on ANZAC Day – Managers guilty of offence committed by body corporate – Defence if manager proves due diligence – No defence if manager knew that the body corporate committed an offence – Whether reasonable limit

Charter s. 25(1) provides that criminal defendants have the right ‘to be presumed innocent until proved guilty according to law.’ Charter s. 7(2) provides that human rights may be ‘subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society’.

The Committee notes that clause 5, inserting a new s. 5C(4) into the ANZAC Day Act 1958, provides that, where a body corporate occupier of a factory or warehouse commits the offence of failing to close a factory or warehouse on ANZAC Day or failing to give each employee a holiday for the whole of ANZAC Day, anyone concerned in the management of the body corporate is also guilty of that offence and is liable for its penalty. The Committee observes that the effect of s. 5C(4) is that, if an employee of a body corporate, acting in the course of his or her employment, opened a factory or warehouse or failed to give an employee a full holiday on ANZAC Day, then the chair and every board member, director, secretary and officer of the corporation may be convicted of a criminal offence and fined up to 100 penalty units (currently $11,012.)

The Committee also notes that new s. 5C(5) provides a defence for managers who can prove that they didn’t consent to the opening or employment and exercised due diligence to prevent it. The Committee observes that, to use this defence, managers will have to prove their due diligence and lack of consent on the balance of probabilities. The Committee therefore considers that s. 5C(5) engages the Charter right of criminal defendants to be presumed innocent until proven guilty.

The Statement of Compatibility remarks:

The right to be presumed innocent is an important right that has long been recognised well before the enactment of the charter. However, the courts have held that it may be subject to limits particularly where, as here:

the offence is of a regulatory nature; and,

a defence is enacted for the benefit of an accused to escape liability…

…The purpose of the imposition of a burden of proof on an accused person concerned with the management of the body corporate, is to provide such a person with an opportunity to escape liability in circumstances where the offence was committed without his or her knowledge or consent and where the defendant took appropriate measures to ensure compliance with clause 5C(1) without undermining the ability to enforce the provision.

The Committee observes that s. 5C(4) may render people liable for conduct that they have no connection to and that s. 5C(5) may therefore be correctly classified as a denial of an essential element of an offence: see State v Coetzee [1997] ZACC 2 (a decision of the Constitutional Court of South Africa on a similar provision.) The Committee also observes that although the offence in s. 5C(1) does not attract imprisonment, the fine is a significant one. The Committee is therefore concerned that, despite the regulatory nature of the offence, the reverse onus in s. 5C(5) may not be a reasonable limit on the Charter’s right to be presumed innocent according to the test in Charter s. 7(2).

The Committee is also concerned that the defence of due diligence is not available to managers if they knew that the offence was being or would be committed (as s. 5C(5) requires that defence prove both that the offence occurred without their ‘consent or knowledge’ and that they ‘exercised due diligence’.) The Committee observes that a person concerned with the management of a corporation who acts diligently to prevent a factory opening on ANZAC Day but who discovers on ANZAC Day that the factory is nevertheless open will have no defence to a prosecution for the offence. The Committee also observes that the defence of due diligence is usually conceived as an alternative, rather than an addition, to the defence of absence of knowledge: see R v Sault Ste. Marie [1978] 2 SCR 1299, 1326. The Committee further observes that a number of similar managerial liability provisions in other statutes provide for a broader defence for managers, either by omitting the requirement to prove that the offence occurred without the manager’s knowledge; substituting narrower requirements like ‘without knowing permission’, ‘without connivance’ or ‘unintentionally’; or by making the defence of due diligence an alternative to the defence of lack of knowledge or consent.

The Committee will write to the Minister seeking further advice on the following matters:

1. Whether it is appropriate to reverse the burden of proof on the sole defence available to a criminal offence where a person's liability for that offence can be established solely by their occupation and the offence carries a significant financial penalty?

2. Whether the defence in new sub-section 5C(5) would be available to a manager who learns on ANZAC Day that a factory is open and immediately take all reasonable steps to close it, given para (a)’s requirement that a person wishing to use the due diligence offence must prove that the offence occurred ‘without that person’s... knowledge’?

Pending the Minister’s response, the Committee draws attention to new sub-section 5C(5).

Minister’s Response

Thank you for your letter dated 19 August 2008 regarding the Labour and Industry (Repeal) Bill 2008.

With reference to the two queries raised by SARC, I make the following remarks.

Whether it is appropriate to reverse the burden of proof on the only defence available in response to a criminal offence where a person may be liable on the basis of their occupation and exposed to a significant financial penalty

Committee members are aware that there is a community expectation that factories remain closed on ANZAC Day. The law has stipulated this for many years and the reforms to the ANZAC Day Act merely reflect the importance of ANZAC Day, and the place it holds in the national consciousness.

The provisions in question already apply through the ANZAC Day Act to entertainment and sporting events. What the Bill does is take the current provisions in the Labour and Industry Act, put them into the ANZAC Day Act and make them consistent with arrangements prevailing for entertainment and sport. Given the similarity in the potential offences to impede the observation of ANZAC Day, the same treatment should apply. Victorians, particularly those who must comply with the legislation, should welcome the consistency that the Government is bringing about.

The purpose behind the reverse onus of proof is to provide a defence for persons who have done everything within their power in order to prevent opening, while avoiding situations where a person can seek to escape liability through recklessness, wilful ignorance or negligence.

The Government believes that the defence provided in the Bill is appropriately narrow. It should be noted that the Labour and Industry Act, which now governs the opening of factories on ANZAC Day, has no defence provisions.

In your letter you make reference to a number of cases determined in other jurisdictions. This offence is quite different from the offences and defences considered by the Constitutional Court of South Africa and the Supreme Court of Canada and most of the other offences identified by the Committee.

The defence relates to a narrowly defined regulatory offence involving a penalty of a fine only. While the fine in the proposed amendment to the ANZAC Day Act can be up to 100 penalty units, it should be seen in the context of the potential profits a business could make through breaching the requirement to close a factory on ANZAC Day. The Government believes that the fine will have the appropriate deterrent effect. By way of contrast the defence in issue in State v Coetzee was in the Criminal Procedure Act. It had a very broad reach and was not limited to regulatory offences. Rather, it applied indiscriminately to all offences, whether regulatory or criminal, including those with penalties of imprisonment.

Further, unlike the offence of water pollution considered in La Reine v Sault Ste - Marie, or many of the other offences in other States referred to by the Committee, this is a case where it would be possible not to enact any defence at all.

While the equivalent Tasmanian offence referred to by the Committee, (which carries a maximum penalty of nearly double that prescribed in the Bill) may have a broader defence, there are examples in other jurisdictions of similar offences that carry no defence whatsoever. For example, s 6 of the Anzac Day Act 1960 (WA) renders all members of a managing body or committee guilty of the offence of holding a sports event on Anzac Day, without any defence whatsoever. Section 5 of the Shop Trading Hours Act Repeal Act 1990 (NZ) prohibits trading on ANZAC Day and defines occupiers liable for the offence to include 'any agent, manager, supervisor, or other person acting or apparently acting in general management or control of the shop' and, where the shop is occupied by a corporation or body of persons, the shop's working manager.

In contrast, the Victorian Government in the Bill currently before Parliament has provided a defence. In these circumstances, the courts consider an affirmative defence with an onus on the accused to be a reasonable limit on the right to be presumed innocent. As Lord Woolf pointed out in AG of Hong Kong v Lee Kwong-kut

It would not assist the individuals who are charged with offences if, because of the approach adopted to 'statutory defences' by the courts, the legislature, in order to avoid the risk of legislation being successfully challenged, did not include in the legislation a statutory defence to a charge.[1]

I also ask the Committee to note that the defence contained in the Bill is in the same terms as the existing offences in the ANZAC Day Act, which was the subject of an inquiry by the Committee in 2002. I consider that the narrow defence provided in the Bill is appropriate.

I do not consider it appropriate to allow a person involved in the management of a body corporate to escape liability in circumstances where he or she did not implement a system to ensure the factory does not open on ANZAC Day. Similarly, a person should not be able to rely on ignorance of the factory's opening, where steps should have been taken to ensure that breaches of the Act did not occur and that all other body corporate officers are made aware and are responsible in this regard.

I also refer the Committee to the Statement of Compatibility (attached), in which I set out the Government's views as to the reasonableness of reversing the onus of proof.

Whether the defence would be available to a manager who learns on ANZAC Day that a factory is open and immediately takes all reasonable steps to close it

In the unlikely situation of a person concerned in the management of a body corporate taking all reasonable steps to ensure that a factory did not open contrary to the Act, and the factory still opening without that person's knowledge, the defence will apply.

Another scenario, unlikely though it may be, is where the manager took all reasonable steps to ensure that a factory did not open contrary to the Act, but the factory still opened without that person's knowledge, and then, on ANZAC Day, the manager became aware that the factory was operating. In this situation, the onus will be on the manager to take whatever steps are necessary to close the factory. Should they fail to act on their knowledge they will be liable for prosecution. Where the manager takes reasonable steps, then that person will have a defence against any action brought under this provision.

ROB HULLS MP
Minister for Industrial Relations

6 October 2008

Enc. Statement of Compatibility

The Committee thanks the Minister for this response.

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Police, Major Crime and Whistleblowers Legislation Amendment Bill 2008

The Bill was introduced into the Legislative Assembly on 9 September 2008 by the Hon. Bob Cameron MLA. The Committee considered the Bill on 6 October 2008 and made the following comments in Alert Digest No. 12 of 2008 tabled in the Parliament on 7 October 2008.

Committee’s Comment

Charter Report

Fair hearing – Right to call witnesses – OPI employees cannot be compelled to testify on OPI matters without the consent of the DPI – Proceedings between state and individuals – Equality of arms

The Committee notes clause 42, inserting a new section 109A into the Police Integrity Act 2008, and clause 46, inserting a new section 86KJA into the Police Regulation Act 1958, provide that OPI employees ‘cannot be compelled to give evidence in any legal proceeding in respect of any matter coming to his or her knowledge in the performance of functions under’ the two Acts unless ‘the Director certifies in writing’ that it is in the public interest to do so.

The Committee is concerned about the application of clauses 42 and 46 in proceedings between the State (including the OPI) and individuals (including criminal defendants.) In such proceedings, it will be the Director, Police Integrity who will determine whether or not either party can call an OPI employee as a witness in relation to OPI matters and, possibly, what the employee may testify about.

The Committee considers that the vesting of exclusive control in a State employee over whether or not such witnesses can be called may limit the Charter right of individual litigants in such matters to a fair hearing, a right that overseas courts have held includes the principle of ‘equality of arms. Also, where the proceedings are criminal proceedings (especially proceedings prosecuted by the OPI), clauses 42 and 46 may also be incompatible with the right of criminal defendants ‘to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses for the prosecution’.

Whilst the Committee accepts that limits on the ability of litigants to compel OPI employees to testify are reasonably necessary to protect sensitive OPI information, the Committee is concerned that giving exclusive control to the DPI to determine whether OPI witnesses can testify may not be the least restrictive limit on the Charter rights to a fair hearing and to call witnesses. The Committee observes that the existing procedure in the Police Integrity Act 2008 for determining whether to admit protected documents, which delineates specific matters of sensitivity and, in criminal cases, allows a court to assess those matters and to admit sensitive documents in exceptional circumstances, may be capable of being adapted to the circumstance where a non-state party wishes to call an OPI employee as a witness.

The Committee will write to the Minister seeking further information as follows:

1. Do clauses 42 and 46, by giving the DPI exclusive control over the calling of OPI employees as witnesses, limit the Charter rights of litigants opposed to the state to a fair hearing and the Charter right of criminal defendants to call witnesses under the same conditions as the prosecution?

2. Could the purpose of protecting sensitive OPI information be achieved by adapting the existing 'protected documents' procedure in Division 10 of Part 4 of the Police Integrity Act 2008 to the circumstance where a non-state party wishes to call an OPI employee as a witness?

Pending the Minister's response, the Committee calls attention to clauses 42 and 46.

The Committee makes no further comment.

Minister’s Response

Thank you for your letter dated 7 October 2008 enclosing an extract from the Scrutiny of Acts and Regulations Committee’s (‘the Committee’) Alert Digest No. 12 of 2008. The extract comments on Part Nine of the Police, Major Crime and Whistleblowers Legislation Amendment Bill 2008 (‘the Bill’) regarding the protection of the Director, Police Integrity (‘DPI’) and staff of the Office of Police Integrity (‘OPI’).

On 9 October 2008, the Legislative Assembly agreed to divide the Bill into two bills, as follows:

a) Police Regulation Amendment Bill 2008 will enact the amends to the Police Regulation Act 1958 (‘the PRA’) that appear in Parts 1 to 7 of the Bill. These Parts are in relation to the constitution of Victoria Police, remedial procedures and civil proceedings under the PRA and other consequential amendments to other Acts; and

b) Major Crime (Investigative Powers) and Other Acts Amendment Bill 2008 (‘the MCOA Bill’) will include Parts 8, 9 and 10 of the Bill.

I note that your letter refers to clauses in Part Nine of the Bill which now appears in Part 3 of the MCOA Bill. Apart from the re-numbering of clauses, the provisions are the same. Accordingly, your questions and my responses below refer to the revised numbering.

Your letter includes two questions for Parliament’s consideration which I reproduce, for convenience, as follows:

Whether or not clauses 6 and 10, by giving the DPI exclusive control over the calling of OPI employees as witnesses, limits the Charter rights of litigants opposed to the state (including criminal defendants) to a fair hearing and to call witnesses under the same conditions as the prosecution?

If so, whether or not clauses 6 and 10 are reasonable limits on those rights according to the test in Charter s.7(2) and, in particular, are the least restrictive means reasonably available to achieve the goal of protecting sensitive OPI information? In the Alert Digest 12 of 2008, the Committee asks if the existing ‘protected documents’ procedure could be adapted for circumstances where a person wishes to call an OPI officer.

Clauses 6 and 10 introduce s 86KJA into the PRA and s 109A into the PIA. These provisions clarify the circumstances in which past and present OPI officers may be compelled to give evidence in civil proceedings, criminal proceedings and proceedings before the Appeals Board. Section 86KJ in the PRA (and s 109 in the PIA) currently provide for the general protection of OPI staff. The MCOA Bill repeals s 86KJ, which states ‘a protected person cannot be called to give evidence in court…’ and replaces it with s 86KJA. The new provision states that a protected person cannot be compelled to give evidence ‘in any legal proceeding in respect of any matter coming to his or her knowledge in the performance of functions under this Act.’ This aligns the provision with the original intention of Parliament to protect the safety of and information known to OPI staff rather than to entirely exclude OPI staff from being called as witnesses.

The MCOA Bill represents an appropriate balance between the competing rights of the safety of the protected person and the integrity of OPI investigations with the fairness of the hearing as set out in sections 24 and 25(2)(h) of the Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’).

Section 25(2)(h) does not protect an unlimited right to compel the attendance of witnesses on the defendant’s behalf, but only protects a right to obtain the attendance and examination of witnesses on the same conditions as witnesses against him or her. Section 86KJA(1) is compatible with this right. A recent County Court ruling has illustrated that a literal reading of the current provisions may prevent OPI officers from giving evidence in the context of present and former members of Victoria Police charged with theft. Accordingly, the purpose of the amendment is to ensure the provisions are interpreted the way Parliament intended: that OPI officers are competent but not compellable witnesses.

The amended provisions ensure that protected persons are competent witnesses for both the prosecution and the defence and allow either party to the proceeding to call a protected person as a witness. However, apart from the exception in s 86KJA(2), protected persons cannot be compelled to give evidence.

The existing ‘protected documents’ procedure in Division 1A of Part IVA of the PRA cannot be adapted to apply to the DPI and staff of the OPI because the procedure was developed for the specific purpose of dealing with material held by OPI officers. There is an important distinction between disclosing documents held by the OPI and the evidence that can be ascertained from a document, compared to allowing an OPI officer to be subject to cross-examination. This distinction is reflected in the existing legislation and will be preserved by the amendments to ensure the safety of protected persons and preserve the integrity of OPI investigations.

Not allowing either party to compel protected witnesses may in some instances limit the rights protected by s 24(1) and s 25(2)(h). Any limitation on the rights under the Charter can be demonstrably justified as a reasonable restriction for a range of reasons, including that:

    • it strikes an appropriate balance between the rights of the accused and the necessity of protecting the safety of OPI officers and the confidentiality of sensitive OPI information;

    • other procedural safeguards exist in proceedings to ensure the fairness of the proceeding, including procedures for disclosing documents or other things in the possession of the OPI;

    • the provisions do not affect the ability of the accused to examine witnesses; and

    • the limitation is less restrictive on the rights than the previous provisions that sought to achieve the same purpose.

Section 86KJA(2) allows for a protected person to be compelled to give evidence if the DPI certifies in writing that the giving of evidence by the protected person is in the public interest. Section 86KJA(2) will only be incompatible with the right to a fair hearing in s 24(1) of the Charter if it gives an advantage to the prosecution. The requirement of fairness protected by s 24(1) requires that defendants have a reasonable opportunity to present their case under conditions that do not place them at a substantial procedural disadvantage to their opponents. It imposes an obligation on the prosecution to disclose to the accused and to the court all material evidence favourable or unfavourable to the accused. The ‘public interest’ under s 86KJA(2) stands for the interests of justice and not what is in the interests of the prosecution.

Allocating this power to the DPI (rather than to a court with the presence of a special counsel representing the interests of the defendant – as occurs with protected documents under the Act), is a demonstrably justifiable limit under the Act, having regard to the important competing interest of protecting the safety of vulnerable witnesses. It enables the DPI to compel protected persons (or former protected persons) who may be unwilling to testify and rely on s 86KJA where it is not in the public interest to do so.

The provisions do not restrict the prosecution from giving adequate notice of prosecution witnesses and nor do they restrict the examination of witnesses compelled by the prosecution to be examined in the presence of the accused (or prevent the accused from cross-examining a witness). The MCOA Bill repeals 86KJ(6) of the PRA and s 109(7) of the PIA, which – if interpreted as a general prohibition on OPI officers giving evidence in court – are potentially an unjustifiable limit on the rights. Additionally, the MCOA Bill does not displace the duties of prosecutors to exercise their functions to promote the fairness of the proceedings. The amendments do not displace the prosecution’s common law duty of disclosure of all material evidence under common law, which goes towards ensuring equality of arms in the proceedings (as required pursuant to s 25(2)(g) and (h) and s 24(1)).

BOB CAMERON MP
Minister for Police & Emergency Services

14 October 2008

The Committee thanks the Minister for this response.

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Prohibition of Human Cloning for Reproduction Bill 2008 &
Research Involving Human Embryos Bill 2008

Both Bills were introduced into the Legislative Assembly on 9 September 2008 by the Hon. Daniel Andrews MLA. The Committee considered the Bills on 6 October 2008 and made the following comments in Alert Digest No. 12 of 2008 tabled in the Parliament on 7 October 2008.

Committee’s Comment

[2]

Delayed commencement – Inappropriate delegation of legislative power

The Committee refers to its Practice Note No. 1 concerning delayed commencement provisions exceeding one year from introduction in the Parliament. In such circumstances the Committee will seek to ensure that Parliament has sufficient information to determine whether a delay in commencement is justified. The Committee will seek further information from the Minister.

Minister’s Response

Thank you for your correspondence of 7 October 2008 regarding the commencement of the Prohibition of Human Cloning for Reproduction Bill 2008 and the Research Involving Human Embryos Bill 2008.

The commencement of these Bills is by proclamation, with a forced commencement date of 1 January 2010. However, the commitment is to enact these pieces of legislation as soon as the Assisted Reproductive Treatment Act (ART Act) is proclaimed, and the Infertility Treatment Act 1995 is necessarily repealed.

The intention is to proclaim the ART Act by 1 July 2009, pending satisfactory resolution of any implementation requirements. If it is possible to achieve this, these bills will commence within the one year period specified in Practice Note No 1 produced by SARC.

I trust this explanation addresses the Committee's concerns.

Hon. Daniel Andrews MP
Minister for Health

20 October 2008

The Committee thanks the Minister for this response.

Committee Room
27 October 2008

 

Notes

[1]

[1993] AC 951, p975

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Scrutiny of Acts and Regulations Committee
Parliament of Victoria