Scrutiny of Acts and Regulations Committee

Alert Digest No 14 of 2008

Ministerial Correspondence

[Table of Contents]


Building Amendment Bill 2008

The Bill was introduced into the Legislative Assembly on 25 June 2008 by the Hon. Peter Batchelor MLA. The Committee considered the Bill on 28 July 2008 and made the following comments in Alert Digest No. 9 of 2008 tabled in the Parliament on 29 July 2008.

Committee’s Comment

The Committee notes the delayed commencement and observes that no reasons are given in any of the explanatory material for the reasons for such a delay.

The Committee will seek further advice from the Minister for the need to delay commencement by more than one year.

The Committee once again draws attention to Practice Note No. 1 of 2005 concerning indefinite or delayed commencement of Acts.

Minister’s Response

Thank you for your letter seeking my advice in respect of matters raised by the Scrutiny of Acts and Regulations Committee of Parliament and included in the Committee's Alert Digest No. 9 of 2008.

I understand the Committee's concern to ensure that forced commencement provisions comply with Practice Note No 1 of 2005, to ensure that they do not constitute an inappropriate delegation of legislative power within the meaning of section l7(a)(vi) of the Parliamentary Committees Act 2003.

The forced commencement period provided in the Building Amendment Bill 2008 was calculated on the basis of likely passage and Royal Assent to provide for a forced commencement period of within 12 months.

The Bill was passed by the Legislative Assembly on 31 July 2008 and by the Legislative Council on 21 August 2008, and received Royal Assent on 26 August 2008.

This full 12 month period will provide sufficient time for regulations to be made to support the implementation of the provisions.

I trust this addresses the concerns of the Committee and thank you for drawing the matter to my attention.

JUSTIN MADDEN MLC
Minister for Planning

20 October 2008

The Committee thanks the Minister for this response.

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Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008

The Bill was introduced into the Legislative Assembly on 9 September 2008 by the Hon. Richard Wynne 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

Presumption of innocence – Charged councillors can be required to take a leave of absence until the proceedings are determined – Requirement to have regard to the nature and circumstances of the charge

The Committee notes that clause 11(3), amending existing s. 29 of the Local Government Act 1989, provides for VCAT to order a Councillor who is charged with certain offences to take a leave of absence until the proceedings in respect of the charge are finally determined. New section 29(5) requires VCAT to ‘have regard to the nature and circumstances of the charge.’ The Committee considers that clause 11(3) may engage the Charter right of charged councillors to be presumed innocent until proven guilty.

The Statement of Compatibility remarks:

VCAT provides Victorians with access to a civil justice system, whose role and jurisdiction is separate to that of the criminal jurisdictions of courts and other tribunals. VCAT’s power to make orders and impose civil liability under clause.. 11… is intended to address local governance issues and ensure that elected councillors undertake their public duty in accordance with community expectations. It does not in any way interfere with or prejudice an individual’s right to be presumed innocence… by the Victorian criminal justice system.

The Committee reiterates its view that the Charter right to be presumed innocent may apply outside the context of criminal proceedings, especially in proceedings (such as the ‘leave of absence’ determination) that are both triggered by and require the consideration of a criminal charge.

The Committee is concerned that new section 29(5) requires VCAT to ‘have regard to the nature and circumstances of the charge’. This may be read as permitting VCAT to decide on the basis of the fact of the charge, rather than on any evidence that relevantly shows that the councillor may have committed a relevant offence. The Committee considers that a Councillor’s right to be presumed innocent may be infringed if VCAT’s decision is made on the basis of the charge, rather than any evidence properly before it that shows that the Councillor may have committed a relevant offence.

The Committee will write to the Minister seeking further information about whether or not VCAT could make its decision to order a Councillor to go on leave only on the basis of the charge against the Councillor, rather than to any evidence properly before the tribunal that shows that the Councillor may have committed a relevant offence. Pending the Minister’s response, the Committee draws attention to clause 11(3) and its compatibility with Charter s. 25(1).

Minister’s Response

I refer to the Parliament of Victoria, Scrutiny of Acts and Regulations Committee’s (‘the Committee’) letter of 7 October 2008 and its comments in Alert Digest No. 12 of 2008 regarding clause 11(3) of the Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 (‘the Bill’).

I confirm that the intention of clause 11(3) of the Bill is that where a councillor is charged with a certain offence referred to under the Local Government Act 1989, the Victorian Civil and Administrative Tribunal (‘VCAT’) may order a councillor to take leave of absence from the office of councillor with full remuneration until the proceedings in respect of the charge are determined, on the basis of the charge alone. VCAT must have regard to the nature and circumstances of the charge but is not required to have regard to any evidence before the Tribunal that shows the councillor may have committed the offence.

As stated in the Statement of Compatibility, clause 11(3) does not in any way interfere with or prejudice an individual's right to be presumed innocent under the Charter. The Charter right to be presumed innocent protects a person in the context of a criminal trial and does not apply outside the context of criminal proceedings (Sabet v Medical Practitioners Board of Victoria [2008] VSC 347 [146]). VCAT’s power to make orders and impose civil liability under clause 11(3) will not involve criminal proceedings and is independent of the criminal process, and, therefore, does not engage the right. I note that even if the concept of criminal proceedings were given a broad construction, so as to include procedural matters prior to or after a criminal trial, such as a pre-trial detention hearing, which are all stages of the criminal process, that would not be broad enough to include disciplinary proceedings, such as a VCAT ‘leave of absence’ determination, in which no finding of guilt is to be made (Sabet [176]).

I thank you for the Committee’s comments and the opportunity to respond.

RICHARD WYNNE MP
Minister for Local Government

29 October 2008

The Committee thanks the Minister for this response.

Further Comments

Presumption of innocence – Whether limited to criminal proceedings – Where meaning of a Charter right is not settled – Need for statement of compatibility to address compatibility issues arising from differing interpretations of a Charter right

11. Disqualifications

(3) After section 29(3) of the Principal Act insert—

"(4) If a Councillor is charged with an offence referred to in subsection (2), the Secretary may apply to VCAT for an order requiring the Councillor to take leave of absence from the office of Councillor until the proceedings in respect of the charge are finally determined.

The Committee notes the Minister’s remark that clause 11(3) will permit VCAT to order a councillor charged with a criminal offence to take a leave of absence ‘on the basis of the charge alone’. The Committee repeats its view that, while the Charter permits interim executive action on the basis of evidence relating to a charge, taking such action merely on the basis of a charge alone may limit a councillor’s Charter right to be presumed innocent until proved guilty.

The Minister cites a recent Supreme Court decision concerning a disciplinary board’s decision to suspend a doctor facing criminal charges for the proposition that the right to be presumed innocent ‘does not apply outside the context of criminal proceedings’.[5] However, while the judge in that decision discussed whether or not the presumption of innocence applies outside of criminal proceedings, she expressly declined to reach any conclusion on that issue.[6] Instead, her only finding was that the particular act of the disciplinary board did not limit the presumption of innocence.[7] Her reasoning on that latter point expressly focused on how the board’s reasoning was based on the evidence before it, rather than the mere fact of the laying of a criminal charge.[8]

The Committee considers that, where a relevant threshold legal question about the applicability of the Charter has been raised but not settled before the courts, it is important that Parliament be fully informed about the compatibility issues that could arise if the issue is resolved differently to the view taken by the government.

The Committee will write to the Minister seeking further information as to the following questions: • If a court holds that Charter s. 25(1) is applicable in disciplinary proceedings, would clause 11(3) limit the Charter’s right to be presumed innocent? • If so, would clause 11(3) be a reasonable limit on the right of councillors to be presumed innocent of criminal charges under proved guilty according to the test set out in Charter s. 7(2)? Pending the Minister’s response, the Committee draws attention to clause 11(3).

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Prostitution Control and Other Matters Amendment Bill 2008

The Bill was introduced into the Legislative Assembly on 7 October 2008 by the Hon. Tony Robinson MLA. The Committee considered the Bill on 27 October and made the following comments in Alert Digest No. 13 of 2008 tabled in the Parliament on 28 October 2008.

Committee’s Comment

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 facsimile communication dated 28 October 2008, in which you request advice in relation to delayed commencement of certain provisions of the Prostitution Control and Other Matters Amendment Bill 2008.

I note that the Scrutiny of Acts and Regulations Committee’s (SARC’s) Practice Note 1 provides that “where the commencement is more than 12 months from Royal Assent the Committee expects that Parliament will be informed as to the reasons why it is desirable or necessary to employ such commencement provisions”.

The Bill sets the default commencement date for sections 6, 7(1), 7(2) and 8 at 1 January 2010, if not proclaimed before then.

In nominating a default date for the commencement of provisions of a Bill it is necessary to take account of what further steps must be undertaken following the passage of the Bill before the relevant provisions can come into operation. This includes the preparation of any necessary regulations, the preparation and conduct of an education campaign, and any further necessary research that may accompany these. The need to ensure that sufficient time is available for the completion of these activities must be balanced with the need to ensure that legislative power is not inappropriately delegated.

This is further complicated by the uncertainty of the progress of a Bill through the Parliament, which is affected by the direction of debate and other Parliamentary business, making the final date of the Royal Assent uncertain.

The relevant sections of the Bill introduce an offence for licensees who fail to exercise effective control over their businesses. There are a number of requirements on licensees to meet the effective control standard. Licensees will need time to prepare to comply with the provisions before they come into operation, and the Business Licensing Authority (BLA) and Consumer Affairs Victoria (CAV) will need time to develop guidelines for compliance, and consult with industry on these. In addition, the Bill makes provision for consideration of matters prescribed in regulations, which (if found to be necessary) will be made prior to commencement of the relevant sections.

The likely date of Royal Assent of the Bill under consideration is either December 2008, or if the Bill is not passed until early 2009, February or March 2009. A default commencement date of 1 January 2010 for sections 6, 7(1), 7(2) and 8 thus appears to adhere to the spirit of the Practice Note as well as can be reasonably achieved.

Thank you for raising this matter with me.

TONY ROBINSON MP
Minister for Consumer Affairs

7 November 2008

The Committee thanks the Minister for this response.

Committee Room
10 November 2008

 

Notes

[5]

Citing Sabet v Medical Practitioners Board of Victoria [2008] VSC 347, [146].

[6]

Ibid [177]-[178]

[7]

Ibid [185]

[8]

Ibid [183] cf [100]

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Scrutiny of Acts and Regulations Committee
Parliament of Victoria