Scrutiny of Acts and Regulations Committee

Alert Digest No 14 of 2008

Tuesday, 11 November 2008

[Table of Contents]

Assisted Reproductive Treatment Bill 2008
Prohibition of Human Cloning for Reproduction Bill 2008 Research Involving Human Embryos Bill 2008

Introduced: 9 September 2008
Second Reading Speech: 10 September 2008
House: Legislative Assembly
Member introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibility:Attorney-General and
Minister for Health

Purpose

The Assisted Reproductive Treatment Bill 2008 repeals the Infertility Treatment Act 1995 and replaces it with three new principal Acts.

The Assisted Reproductive Treatment Bill 2008

  • removes the current statutory requirement that women be married or be in a de facto relationship with a male to have access to Assisted Reproductive Treatment (ART) treatment in Victoria;

  • strengthens the protections for children born through ART by implementing enhanced screening for treatment, expanding donor-conceived children's access to information about their genetic history and clarifying parentage laws;

  • provides that complex treatment decisions are made by an independent expert Patient Review Panel, with provision for review of decisions by the Victorian Civil and Administrative Tribunal;

  • expands the opportunity for altruistic surrogacy and posthumous use of gametes in treatment procedures, in the context of rigorously assessed applications;

  • updates Victoria's laws on ART and surrogacy to clarify and remove existing anomalies and inconsistencies to recognise the realities of Victorian families and reflect new technologies;

  • provides that prescribed ART records are held by the Registry of Births, Deaths and Marriages; and

  • reduces the regulatory burden on ART providers by introducing a deemed registration system.

  • amends the Status of Children Act 1974 and the Births, Deaths and Marriages Registration Act 1996.

The Prohibition of Human Cloning for Reproduction Bill 2008 re-enacts Part 4A of the Infertility Treatment Act 1995 as a separate new principal Act to continue the prohibition on human cloning for reproduction and other unacceptable practices associated with reproductive technology.

The Research Involving Human Embryos Bill 2008 re-enacts Part 2A of the Infertility Treatment Act 1995 as a separate new principal Act to regulate research involving the use of human embryos.

Public submissions sought

The Committee reported on the Bill in Alert Digest No. 12 of 2008 which was tabled in the Parliament on 7 October 2008. In that report the Committee indicated that it would call for public written submissions and comments in respect to these Bills.

The Committee received written submissions from –

  • Ad Hoc Interfaith Committee

  • Australian Christian Lobby

  • Australian Family Association

  • Catholic Women’s League of Victoria & Wagga Wagga Inc.

  • Christine Whipp

  • Donor Conception Support Group Aust. Inc

  • Family Voice Australia (FAVA)

  • Institute for Judaism & Civilization Inc.

  • John Schmid

  • Lauren Burns

  • Lawrie McNamara

  • Liberty Victoria

  • Meredith Lenne

  • Myfanwy Walker and Joanna Rose

  • Narelle Grace

  • Office of the Victorian Privacy Commissioner

  • Pauline Peile

  • Rainbow Families Council

  • Romana Rossi

  • Sandra Johnson

Committee comment

Undue trespass to rights and freedoms – Parliamentary Committees Act 2003, section 17(a)(i) – Access to Assisted to Reproductive Treatment or surrogacy

The Committee having reviewed the submissions is of the opinion that they do not raise any issue that could be characterised as an undue trespass to rights and freedoms within the meaning of the Act.

Charter Report

Rights of families and children – Charter differs from international human rights law relating to families and children – Charter omits rights relevant to assisted reproductive technology – No issues of Charter incompatibility

The majority of public submissions on the Assisted Reproductive Treatment Bill 2008 (and related bills) focus on the following issues relating to children and families:

  • Discrimination against donor-conceived children based on the timing of their donation and vis a vis adoptees.

  • Protection and promotion of the natural family unit.

  • A right of children under intentional law to know about their identity and their biological parents

  • A right of children under international law to have their identity registered

  • A conflict between the interests of children and those of prospective ART users.

The Committee is of the opinion that, regardless of how the various differing views on the law and the evidence addressed in each submission is resolved, none of them raise any issues of Charter incompatibility.

The Committee notes that each of the relevant Charter rights has significant limitations on their operation, as follows:

  • Charter s. 8 equality rights: The Charter’s rights against discrimination are limited to the discrimination attributes in s. 6 of the Equal Opportunity Act 1995. These attributes do not include the timing of conception or the manner in which their family was founded. Therefore, Charter s. 8 does not provide any rights for people conceived from a donation made prior to any particular date to be treated equally with people conceived from a donation made after that date, nor does it provide for donor-conceived people to be treated the same as adopted people.

  • Charter s. 17(1) rights of families: The Charter omits the International Covenant on Civil and Political Right’s (ICCPR) reference to a ‘natural’ family unit, and instead refers to ‘families’ in plural and omits the right of men and women to marry and found a family. The explanatory memorandum of the Charter states:

    This sub-clause recognises a right to protection. It is not Parliament's intention to create a right to found a family in the Charter. Parliament intends that the term "families" be given meaning that recognises the diversity of families that live in Victoria, all of whom are worthy of protection.

Therefore, Charter s. 17(1) does not provide traditional families with any rights that are distinct from those of non-traditional families, including same-sex couples and single people.

  • Charter s. 17(2) rights of children: The Charter omits the ICCPR’s right of children to registration and identity. The Charter also doesn’t follow the United Nations Convention on the Rights of the Child in requiring that all decisions be made in the child’s best interests. Rather, it provides only a narrower right for children to such protection as is in their best interests and is needed by them ‘by reason of being a child’. In essence, the Charter requires the State to take action where children are vulnerable due to their age to remedy that vulnerability.

Therefore, Charter s. 17(2) does not require that children’s (and potential children’s) interests be paramount over those of parents (and potential parents) and does not contain a right of children to know their identity.

Charter s. 32(2) permits relevant international human rights law to be considered in interpreting Charter rights. However, each of the above differences from international law is the result of an express decision by the drafters, either to conform with existing Victorian law or not to pre-empt the VLRC’s ART and adoption inquiries.[1] In addition, the rights promoted by the Charter do not include the detailed rights in the UN Convention on the Rights of the Child; that matter will be addressed in the 2011 review of the Charter.[2]

The Committee is of the opinion that the international law cited in the submissions is not relevant to the Charter. The submissions on these issues therefore do not raise any issues of Charter incompatibility.

Privacy – Criminal records check –– Whether irrelevant records will be disclosed – No issue of Charter compatibility

One submission[3] raises an issue about the criminal records check process. The Committee’s report referred to Parliament a question about whether this process (which natural parents do not have to undergo) limits the Charter’s equality rights. The submission raises a separate issue about whether a check of all crimes is necessary, given that only certain offences will raise a presumption against the parents.

While a full check in these circumstances is arguably contrary to the Charter right against arbitrary or unlawful interferences in privacy, the Committee observes that compliance with the Bill only requires Victoria Police to pass on relevant charges to ART service providers. This interpretation is supported by the Charter’s own requirements that statutory provisions be interpreted compatibly with the Charter and that public authorities act compatibly with the Charter.[4] Therefore there are no Charter compatibility issues raised by this submission.

Rights of embryos – Discrimination – Freedom of expression – Referred to parliament

Several submissions engage with the Committee’s original report into the bill. The rights compatibility issues discussed are ones that the Committee referred to Parliament for its consideration (or, in the case of surrogacy, wrote to the Minister about.) The Committee is of the opinion that the submissions therefore do not raise any new compatibility issues.

The Committee makes no further comment.

Return to the Table of Contents

Crimes Legislation Amendment (Food and Drink Spiking) Bill 2008

Introduced: 7 October 2008
Second Reading Speech: 28 October 2008
House: Legislative Assembly
Member introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

The Bill creates two new offences which relate to food or drinking spiking behaviour.

The Bill amends the –

  • Crimes Act 1958 to create a new offence of administering a drug, matter or thing with the intention of rendering a person incapable of resisting an indecent act (defined by new section 53(3)). The existing provision only applies to situations where a person has been rendered incapable of resisting sexual penetration.

  • Summary Offences Act 1966 to create a new offence of food or drink spiking. The offence occurs where a person gives another person, or causes another person to be given or to consume, food or drink that is spiked; and knows that the victim is not aware, or is reckless as to whether the victim is aware, that the food or drink is spiked; and intends the victim to be harmed by the consumption of the food or drink.

The offence is also made out if the victim has been given more of an intoxicating substance than they could reasonably expect their food or drink to contain. This means that it captures the spiking of an alcoholic drink with additional alcohol where the elements of the offence are also satisfied. The offence is a preparatory offence.

It is not necessary for food or drink to be consumed, nor is it necessary that a person's senses or understanding actually be impaired.

The Committee makes no further comment.

Return to the Table of Contents

Health Services Legislation Amendment Bill 2008

Introduced: 28 October 2008
Second Reading Speech: 29 October 2008
House: Legislative Assembly
Member introducing Bill: Hon. Daniel Andrews MLA
Portfolio responsibility: Minister for Health

Purpose

The Bill amends the –

  • Health Services Act 1988 to provide a new regulatory framework for community health centres. The Second Reading Speech provides -

.. the Bill provides for a voluntary registration scheme for organisations that provide government-funded community health services - community health centres that register will be eligible to receive community health and dental funding and be subject to a new monitoring and governance framework. Registration will be a one-off process, although the Secretary may revoke a community health centre's registration under certain circumstances. The Department of Human Services will manage the registration system, including assessing applications for registration against registration criteria provided for in the Bill.

A key aspect of the new governance framework is a requirement that agencies registering must be companies limited by guarantee. Companies limited by guarantee are subject to more rigorous reporting arrangements than incorporated associations. The vast majority of community health centres are currently incorporated associations

… The new regulatory framework sets performance standards for community health centres. These are determined by the Minister for Health and provided for in the Bill. The Bill provides that if a registered community health centre does not comply with a direction by the Secretary, funding to the agency may be stopped or its registration revoked.

  • Health Services (Conciliation and Review) Act 1987 to provide that members of the Health Services Review Council are appointed for a term of up to three years, and can serve a maximum of 9 consecutive years on the Council.

Content and Committee comment

[Clauses]

[8]. Substitutes the existing Division 6 of Part 3 of the Health Services Act 1988 with a new regulatory framework for community health centres.

New section 50 deals with the Secretary’s power to refuse an application for registration and new section 56 sets out the procedure to be followed if the Secretary intends to revoke the registration of a registered community health centre.

New section 57C allows for application to the VCAT for review of a decision by the Secretary to refuse or revoke registration, or a decision by the Minister to recommend the appointment of an administrator.

The Committee makes no further comment.

Return to the Table of Contents

Multicultural Victoria Amendment Bill 2008

Introduced: 15 October 2008
Second Reading Speech: 28 October 2008
House: Legislative Assembly
Member introducing Bill: Hon. John Brumby MLA
Portfolio responsibility: Minister for Multicultural Affairs

Purpose

The purpose of the Bill is to formalise the structural and administrative changes to the Victorian Multicultural Commission following its merger with the Victorian Office of Multicultural Affairs.

The Bill amends the Multicultural Victoria Act 2004 to —

  • amend the principles and functions of the Victorian Multicultural Commission;

  • provide for the appointment of a Director and other staff of the Victorian Multicultural Commission and amends the provision relating to the appointment of the Deputy Chairperson;

  • amend the reporting requirements of Government Departments in the area of multicultural affairs.

The Committee makes no further comment.

Return to the Table of Contents

Police Regulation Amendment Bill 2008

Introduced: 9 October 2008
Second Reading Speech: 9 October 2008
House: Legislative Assembly
Member introducing Bill: Hon. Bob Cameron MLA
Portfolio responsibility: Minister for Police and Emergency Services

Purpose

This Bill amends the Police Regulation Act 1958 (the ‘Act’) to —

  • reform the police discipline arrangements in the Act to remove a formal charge and inquiry process and substitute a model that is focussed on a remedial approach whilst retaining the ability to dismiss members who are unsuitable to remain in the police force for reasons of misconduct or underperformance;

  • clarify the supervisory capacity of the Chief Commissioner of Police with respect to members of the police force and to improve the management of the performance and conduct of police members;

  • improve procedures for the State to assume liability in civil actions against police members arising from the performance of their functions.

Note: This Bill was originally part of the Police, Major Crime and Whistleblowers Legislation Amendment Bill 2008 and was split on 9 October 2008 in the Legislative Assembly. The Committee considered the original Bill in Alert Digest No. 12 of 2008.

Call for submissions

On 28 October 2008 the Committee, by facsimile transmission, invited key peak bodies and persons to make written submissions to the Committee by 7 November 2008. The inquiry concerned amendments made by the Bill to the Act.

Clause 18 of the Bill amends section 68D of the Act effectively removing the ability of the Police Appeals Board (the ‘Board’) to order the Chief Commissioner to reinstate an applicant officer where the Board, on appeal, has concluded that the dismissal was not sound, defensible or well-founded. The Bill provides that the only remedy available to the Board in such circumstances is to order the Chief Commissioner to pay the applicant an amount of compensation not exceeding the amount of remuneration of the applicant during the period of 12 months immediately before being dismissed.

The Committee invited submissions in accordance with its terms of reference, namely, whether the removal of the Board’s ability to order reinstatement is either an undue trespass to rights or freedom within the meaning of section 17(a)(i) of the Parliamentary Committees Act 2003; or is incompatible with the human rights set out in Part 2 of the Charter of Human Rights and Responsibilities.

Submissions received

The Committee received written submissions from –

  • Chief Commissioner of Police

  • The Police Association (Victoria)

  • Minister for Police and Emergency Services

The Committee has determined to publish the submissions on its Website.

Remedy on appeal for dismissal – Removal of right of reinstatement – Police Appeals Board – Whether an undue trespasses to rights or freedoms – Whether incompatible with Charter

The Committee has considered the written submissions made to it and is of the opinion that the these provisions do not raise any issue concerning common law rights within the meaning of section 17(a)(i) of the Parliamentary Committee Act 2003 (undue trespass to rights or freedoms).

The Committee further considers that the provisions do not raise a question of Charter incompatibility within the meaning of the rights set out in Chapter 2 of the Charter for Human Rights and Responsibilities (see Charter Report below).

The Committee refers to the Parliament the question whether on appeal to the Board reinstatement of an officer should be an essential or appropriate remedy in all the particular circumstances.

Charter Report

Chief Commissioner’s want of confidence dismissal powers – Remedy of compensation on appeal – No right to reinstatement – No issues of Charter compatibility

The Police Association’s submission raises numerous issues about the fairness of proposed provisions for the dismissal of police officers and the limited remedies in the event that the Police Appeals Board makes findings adverse to the Commissioner. Whether or not these claims are correct, they raise no issues with respect to the Charter.

The Committee notes that the Charter does not contain any relevant rights to employment or to a remedy in the event of an unfair dismissal. In particular, the Charter’s discrimination rights are limited to defined attributes and those attributes do not include employment as a police officer. There is no Charter right for police officers (or anyone else) to be treated fairly in relation to their dismissal. However the Committee observes that the Chief Commissioner is a public authority under the Charter and therefore is obliged to act compatibly with other rights that might arise in public employment, such as the right against race discrimination.

The Committee has concluded that the submissions do not raise any issues of Charter incompatibility.

The Committee makes no further comment.

Return to the Table of Contents

Professional Standards and Legal Profession Acts Amendment Bill 2008

Introduced: 28 October 2008
Second Reading Speech: 29 October 2008
House: Legislative Assembly
Member introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

The Bill amends the -

  • Professional Standards Act 2003 to facilitate a national framework for the mutual recognition of professional standards schemes (PS schemes) approved under nationally consistent professional standards legislation of each State and Territory so as to allow members of occupational associations who are covered by a PS scheme in another State or Territory, to practise under that scheme if that scheme is authorised for operation in Victoria.

Note: Victoria enacted the Professional Standards Act 2003 as part of the national tort law reforms with the specific objectives of improving professional service standards and limiting the occupational liability of professionals in certain circumstances. This was aimed at helping stabilise professional indemnity insurance premiums for service providers. In return for conferring a benefit of capped liability for members of participating professional associations, the legislation also protects consumer interests through requirements for members to hold satisfactory levels of insurance, implement risk management strategies and to establish complaints and disciplinary procedures.

  • Legal Profession Act 2004 to clarify that, at the time of notifying a practitioner of a complaint, the Legal Services Commissioner is not required to give a practitioner an opportunity to make a submission as to whether to treat a complaint as a disciplinary complaint, civil complaint or both; and to clarify that the Commissioner is not required to give a complainant or practitioner an opportunity to make a submission before exercising his/her powers to summarily dismiss a complaint.

Note: The Committee notes that the amendments will only apply to complaints lodged after the commencement of the amendments and does not affect the decision made by the Supreme Court in the case of Byrne v. Marles & Anor.

The Committee makes no further comment.

Return to the Table of Contents

Public Administration Amendment Bill 2008

Introduced: 28 October 2008
Second Reading Speech: 29 October 2008
House: Legislative Assembly
Member introducing Bill: Hon. MLA
Portfolio responsibility: Minister for

Purpose

The Bill amends the

  • Public Administration Act 2004 in relation to employer powers including; emergency redeployment powers; employee mobility; employee misconduct; employee probationary periods; and the powers of the Public Sector Standards Commissioner.

  • Ombudsman Act 1973 to clarify that the Ombudsman has jurisdiction under the Act to investigate administrative actions of the Office of Police Integrity (the OPI) and the Director, Police Integrity and of members of the police force in the course of a secondment to that Office. The Special Investigations Monitor has jurisdiction to investigate complaints about the OPI’s use of coercive powers.

  • Project Development and Construction Management Act 1994 to create the Secretary to the Department of Innovation, Industry and Regional Development as a body corporate; to abolish the body corporate named Secretary to the Department of Transport; to provide for the transfer of certain matters from the Secretary to the Department of Transport body corporate to the Secretary to the Department of Innovation, Industry and Regional Development body corporate;

Content and Committee comment

[Clauses]

Public Administration Act 2004

[14]. Employer powers in emergency circumstances – Inserts a new Part 7A to provide special powers to public sector employers for use in emergency situations. The new provisions permit the Premier to declare that an emergency situation exists for a specified period, which can be revoked or extended. The employer may change the duties of employees, require employees to perform work for another public sector body, perform their duties at a different location, and to not attend for duty.

The employer powers do not authorise the imposition of conditions of employment that are less favourable than applied previous to the making of the declaration. When declaring the emergency situation, the Premier will be required to consult specified persons, and such a declaration will not be able to be extended beyond six months without the agreement of Parliament.

The Committee makes no further comment.

Return to the Table of Contents

State Taxation Acts Further Amendment Bill 2008

Introduced: 28 October 2008
Second Reading Speech: 29 October 2008
House: Legislative Assembly
Member introducing Bill: Hon. Tim Holding MLA
Portfolio responsibility: Minister for Finance

Purpose

The Bill amends the –

Duties Act 2000 to —

  • clarify duty on sub-sales of land;

  • clarify the duty exemption for transfers to and from trustees and nominees;

  • lower the age for eligibility for the equity release program exemption;

  • provide for the registration of approved agents for the purposes of Part 4 of Chapter 10 of that Act and Part 6 of the Livestock Disease Control Act 1994.

First Home Owner Grant Act 2000 to —

  • provide for the administration of the First Home Owners Boost;

  • enable the Commissioner to vary or reverse a decision in relation to an application in certain circumstances despite 5 years having passed since the decision was made;

  • clarify that applicants may object to the imposition of penalties imposed under that Act;

  • strengthen the protection of confidential information under that Act.

Livestock Disease Control Act 1994 to —

  • substitute references to the Stamps Act 1958 with references to the Duties Act 2000;

  • repeal the requirement to affix duty stamps;

  • clarify requirements in relation to statements and invoices;

  • enable infringement notices to be issued in relation to certain offences.

Taxation Administration Act 1997 to permit the disclosure of information to the Business Licensing Authority, the Roads Corporations and the Secretary to the Department of Primary Industries.

Content and Committee comment

[Clauses]

[2]. Division 1 of Part 3 (clauses 14 to 16 amending the First Home Owner Grant Act 2000) are deemed to have commenced on 14 October 2008 the date of the announcement of the First Home Owners Boost policy.

Retrospective application of laws

The Committee notes the retrospective application of these amendments. The Committee accepts that there are occasions where deemed retrospective commencement is acceptable including, as in this instance, provisions that provide a financial benefit to persons.

Section 11(3) of Division 3 of Part 2, and Division 3 of Part 4 come into operation on a day or days to be proclaimed.

Note: In respect to commencement by proclamation – From the explanatory memorandum – This is because they relate to swine duty sections in the Livestock Disease Control Act 1994 which have not yet been proclaimed and have no default commencement date. When the Stamps Act 1958 was repealed by the Duties Act 2000, provisions for the imposition of swine duty were retained on the assumption that, when the relevant provisions in the Livestock Disease Control Act 1994 were proclaimed, collection of swine duty could immediately continue again.

The Committee makes no further comment.

Notes

[1]

Consultation Committee Report, [2.4.6]

[2]

Charter s. 44(2)(ii)

[3]

Office of the Privacy Commissioner.

[4]

Charter ss. 32(1) & 38(1).

Return to the Table of Contents

Scrutiny of Acts and Regulations Committee
Parliament of Victoria