Scrutiny of Acts and Regulations Committee
Alert Digest No 2 of 2008
Tuesday, 26 February 2008
5 February 2008
The Bill amends the Crown Land (Reserves) Act 1978 (the ‘Act’) and provides for the management of land in the Carlton Gardens Reserve during special events.
Content and Committee comment
. The amendments made by the Bill will commence on the day after Royal Assent.
. Inserts a new Part 4A into the Act (new sections 29J to 29S).
New section 29J allows the Governor in Council, on the recommendation of the Minister responsible for the Act, to declare an event to be a special event for the purposes of this Part. The declaration must be published in the Government Gazette.
New section 29O allows for regulations made under section 13 of the Act and local laws made under the Local Government Act 1989 to be suspended during all or part of the declaration period. These laws can only be suspended to the extent that they apply to the Carlton Gardens Reserve, and only during the declaration period.
New section 29R requires the Minister to give a copy of the special event management declaration to the committee of management of the Carlton Gardens Reserve within 7 days after it is published in the Government Gazette.
New section 29S requires the event organiser to restore the Carlton Gardens Reserve to a condition reasonably comparable to its condition before the special event period.
. Provides for the automatic repeal of this amending Act on the first anniversary of its commencement.
Keywords – Freedom of movement – Management of very small part of Victoria
Charter s. 12 provides that people ‘have the right to move freely within Victoria’.
The Committee notes that clause 4, inserting a new section 29L(2)(d) into the Crown Land (Reserves) Act 1978, provides that a special event management declaration may give the Secretary to the Department of Sustainability and Environment or the Melbourne Convention and Exhibition Trust a power ‘in relation to the Carlton Gardens Reserve’ to ‘fix opening and closing times for public access’.
The Statement of Compatibility remarks that the Bill ‘might… be perceived to limit the right to freedom of movement’, but argues that it is a reasonable limit on that right under the test set out in Charter s. 7(2).
The Committee observes that clause 4 affects a very small part of Victoria; does not appear to impose any significant constraints on Victorians’ ability to move between parts of Victoria that fall outside of that area; does not target any particular individual or group; and is consistent with normal management of public property. The Committee therefore considers that clause 4 does not engage the Charter’s right to freedom of movement.
The Committee makes no further comment
6 February 2008
The Bill amends the Port Services Act 1995 (the ‘Act’) to require the Port of Melbourne Corporation to undertake the immediate public disclosure of environmental monitoring of the Channel Deepening Project and for other purposes.
Content and Committee comment
. The amendments come into operation on the day after Royal Assent.
. Inserts new section 14B requiring the Port of Melbourne Corporation to cause to be published on the Port of Melbourne Corporation website and presented before Parliament certain environment management plans and related audits and directions the Port of Melbourne Corporation receives from the Minister in relation to the Channel Deepening project.
Where any Minister or public authority prepares or receives a report, statement or advice relating to the Channel Deepening Project and the environmental effects of such dredging a copy must be delivered immediately to the Corporation, and published.
. Inserts new sections 91J and 91K concerning public disclosure of monitoring results relating to the Port of Melbourne Corporation.
The Port of Melbourne Corporation must ensure that any data received or obtained by it as a result of monitoring activities under an environment management plan is published on the Internet immediately on receipt by the Port of Melbourne Corporation or its delegate; and available in paper copy within 1 day of receipt by the Port of Melbourne Corporation or its delegate.
The Port of Melbourne Corporation must ensure that any response levels; or environmental limits; or contingency plans outlined in an environmental management plan under Part 6A are published on the Internet, adjacent to relevant information disclosed immediately upon final approval of the environment management plan.
. The amending Act is repealed on the first anniversary of its commencement.
Keywords – Privacy and reputation – Expression – Fair hearing – Mandatory publication of statements and reports
Charter s. 6 provides that ‘only persons have human rights’. Charter s.13 gives people the right not to have their ‘privacy or correspondence unlawfully or arbitrarily interfered with’ or their ‘reputation unlawfully attacked’. Charter s. 15(2) gives people ‘the freedom to seek, receive and impart information’. Charter s. 24 gives criminal defendants and civil litigants a right to a decision by an ‘impartial court or tribunal after a fair and public hearing’. Charter s. 7(2) provides that human rights ‘may be subject under law only to such reasonable limits as can be demonstrably justified’.
The Committee notes clause 5, inserting a new section 14B into the Port Services Act 1995, requires the Port of Melbourne Corporation to publish various reports, directions and statements prepared by or for a Minister, the corporation or any other public authority relating to an environmental management plan prepared under Part 6A of the Act or the Channel Deepening Project and its environmental effects. The Committee also notes that new section 14B(2) requires that the Minister or public authority deliver reports, statements or advices received or prepared by them to the Corporation for publication. The Committee additionally notes that clause 6, inserting new sections 91J and 91K into the Act, require the publication of additional information received in relation to an environmental management plan.
The Statement of Compatibility remarks –
The timely and open access to information is not only in accordance with the right to freedom of expression, but will assist in protection (sic) public health by allowing the public access to information on the environmental state of Port Phillip Bay.
The Committee considers that clauses 5 and 6 promote the Charter right of Victorians to receive information.
However, the Committee observes that the release of some information may engage the Charter’s rights to privacy, reputation and a fair hearing in some circumstances. Whilst the documents to be published under clauses 5 and 6 largely relate to subject-matter that is the responsibility of public authorities and corporations (who do not have rights under the Charter), the Committee is concerned that some reports, statements and advices prepared by or for a Minister or public authority may incidentally contain private information about an individual or, possibly, information that may be prejudicial to an individual’s reputation or eventual litigation to which that individual is or becomes a party. The Committee therefore considers that clause 5, by requiring the blanket release of such information, may unlawfully interfere with the privacy and reputation of such individuals and may also potentially engage their right to a decision by an impartial court.
The Committee further notes that clause 5, inserting a new section 14B(3) into the Act, provides that new section 14B must be complied with ‘despite any other provisions of this Act or any other Act’. The Committee observes that this may exclude the operation of the Information Privacy Act 2000, the Health Records Act 2001, s. 18 of the Supreme Court Act 1986 (on suppression orders) and the Charter.
The Committee will seek further advice from the Member introducing the Bill concerning the following matters –
Pending the Member’s response the Committee draws attention to the provisions.
The Committee makes no further comment