Scrutiny of Acts and Regulations Committee

Alert Digest No 4 of 2008

Ministerial Correspondence

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Animals Legislation Amendment (Animal Care) Bill 2007

The Bill was introduced into the Legislative Assembly on 10 October 2007 by the Hon. Joe Helper MLA. The Committee considered the Bill on 29 October 2007 and made the following comments in Alert Digest No. 14 of 2007 tabled in the Parliament on 30 October 2007.

Committee’s Comment

Charter Report

Keywords – Reasonable limits on rights – Keeping and welfare of animals – Forced work – Privacy – Property – Presumption of innocence – Adequacy of statement of compatibility

Charter s.7(2) provides that human rights may be ‘subject to such reasonable limits as can be demonstrably justified in a free and democratic society’. Charter s.28(3)(a) provides that a statement of compatibility must state how a Bill is compatible with human rights.

The Committee notes that the Bill extends and amends various provisions relating to the keeping and welfare of animals. The provisions are generally typical of legislative schemes to regulate private behaviour that may harm others (including, in this instance, humans and animals.)

The Statement of Compatibility identifies a number of provisions in the Bill that are said to engage the following Charter rights:

    • Forced work (Charter s.11): Provisions requiring people to comply with orders or directions to ensure that animals cannot escape their property (clause 29 inserting new section 84W into the Domestic Animals Act 1994; clause 62 inserting new sections 16B & 25B into the Impounding of Livestock Act 1994.)

    • Privacy (Charter s.13(a)): Provisions empowering certain officers to –

      • enter premises with an owner or occupier’s permission or a court warrant (clause 29 inserting new sections 84C & 84E into the Domestic Animals Act 1994; clause 95 inserting new sections 24G & 24K into the Prevention of Cruelty to Animals Act 1986);

      • enter non-residential premises without a warrant in certain emergencies (clause 95 inserting new sections 23, 24 & 24ZR(2) into the Prevention of Cruelty to Animals Act 1986);

      • require people suspected of offences to supply their name and address upon request (clause 28(2) amending s74A of the Domestic Animals Act 1994, clause 29 inserting a new section 84R into the Domestic Animals Act 1994; clause 95 inserting new section 24ZT into the Prevention of Cruelty to Animals Act 1986)

    • Property (Charter s.20): Provisions empowering –

      • officers to sell or destroy pets and livestock in various defined circumstances (clause 29, inserting new sections 84O, 84P, 84S & 84T into the Domestic Animals Act 1994; clauses 65, 66 & 67 amending, respectively ss.18, 21 & 22 of the Impounding of Livestock Act 1994);

      • officers to dispose of animals that are unclaimed, at risk, diseased or distressed (clause 95, inserting new sections 23(4)(b), 24(1)(b)(i), 24F(b), 24T, 24W, 24X & 24Z into the Prevention of Cruelty to Animals Act 1986);

      • courts to order the forfeiture of a seized animal or thing where a person has been found guilty of an animal cruelty offence (clause 95 inserting new sections 24ZD & 24ZN into the Prevention of Cruelty to Animals Act 1986.)

    • Presumption of innocence (Charter s.25(1)): A provision that deems the owner of a vehicle to be its driver for the purpose of the offence of driving with an unsecured dog, unless the owner can prove that he or she provided adequate information concerning the identity of the driver or the sale or theft of the vehicle

In each instance the Statement of Compatibility contends that the respective rights, to the extent that they are infringed at all, are reasonably limited by the Bill according to the test set out in Charter s.7(2). Having considered the above provisions, the Committee is satisfied that the measures so engaged do not warrant any special mention or adverse comment in respect to possible incompatibility with human rights.

However, the Committee is concerned that the Statement of Compatibility, which is very lengthy and deals with a large and complex amendment bill, does not identify by clause or section number any of the many provisions that it discusses. The Committee refers to its Practice Note No. 2, which states that ‘the Committee considers that the provision to Parliament of reasonable explanatory material is critical to the Parliament’s exercise of legislative power in an informed manner.’ While appreciating the Statement’s comprehensiveness, the Committee considers that the absence of express references to clause or section numbers in relation to such a complex bill may render the statement incapable of informed consideration by members of Parliament.

The Committee resolves to raise this concern with the Minister.

Keywords – Privacy – Powers of entry and questioning without emergencies or court warrants – Entry and observation of non-residential premises housing animals for purpose of animal cruelty laws– Requirement for occupiers of premises searched under animal cruelty laws to provide information to the extent reasonably necessary to determine whether an offence has been committed – Whether unlawful

Charter s.13(a) gives people the right not to have their ‘privacy unlawfully or arbitrarily interfered with’. An interference with privacy is unlawful unless it is authorised by a law that is certain, appropriately circumscribed and accessible.

The Committee notes that clause 95 provides for two intrusive enforcement powers that require neither an emergency nor a court warrant. New section 24L of the Prevention of Cruelty to Animals Act 1986 provides that a ‘specialist inspector’ may enter non-residential premises housing animals and observe structures and practices ‘for the purposes of’ Parts 2 and 2A of the Act (dealing, respectively, with the protection of animals and enforcement) and regulations under the Act. The Statement of Compatibility remarks:

This power is a re-enactment of an existing power under the Act. The power can only be exercised with the written authority of the minister, and not in relation to a person’s dwelling, therefore minimising the interference with privacy.

New section 24ZQ(1)(a) provides that occupiers (or their employees or agents) of premises lawfully searched under the Act must ‘give information… orally or in writing’ as required by the inspector ‘[t]o the extent that is reasonably necessary to determine whether an offence’ against the Act ‘has been or is about to be committed.’ The Statement of Compatibility remarks:

These powers are largely a re-enactment of existing powers. The power to request information may only be exercised to the extent that is reasonably necessary to determine whether an offence against the act or regulations has been or is about to be committed.

The Committee observes that all provisions of bills introduced into Parliament after 1st January 2007, including re-enactments of existing laws, are subject to scrutiny for compatibility with human rights under the Charter. The Committee also observes that Charter s13(a)’s right not to be subject to arbitrary or unlawful interferences applies to even minimal interferences with privacy, including entry into non-residential premises. The Committee further observes that the broad questioning power in the new section 24ZQ(1)(a) does not appear to be contained in the existing Act.

While the Committee considers that any interferences with privacy authorised by new sections 24L & 24ZQ(1)(a) are not arbitrary (in light of their express connections to the purpose of preventing cruelty to animals), the Committee is concerned that both powers may be too broad (in both drafting and effect) to be considered lawful interferences with the Charter’s right to privacy, in the absence of context-specific constraints such as a belief that an emergency exists or a court warrant. In the case of the new section 24ZQ(1)(a), the Committee is also concerned that individuals questioned may be unaware that they do not have to comply with a request for information that ‘would tend to incriminate the person’ (as provided by new section 24ZV(1)).

The Committee will seek further advice from the Minister concerning the following matters:

  1. Why does the new section 24L permit entry into private premises in the absence of an emergency or a court warrant?

  2. Why does the new section 24L refer generally to ‘the purposes’ of Parts 2 and 2A and the regulations of the Act, rather than setting out specific situations when specialist inspectors can enter non-residential premises housing animals?

  3. Why does new section s24ZQ(1)(a) permit inspectors to require people to provide information in the absence of an emergency or a specific court warrant to that effect?

  4. Why does the new section s24ZQ(1)(a) refer to questioning ‘to the extent that is necessary to determine whether an offence has been or is about to be committed’ rather than setting out specific questions that an inspector may require a person to answer?

  5. Will people questioned under new section 24ZQ(1)(a) be told of their right not to provide self-incriminatory information?

Pending the Minister’s response, the Committee draws attention to these provisions.

Minister’s Response

Thank you for your letter of 31 October 2007. As requested, this response addresses the matters to which the Scrutiny of Acts and Regulations Committee (the Committee) seeks further clarification in relation to the Animals Legislation Amendment (Animal Care) Bill 2007 (the Bill).

The Committee mentions in its letter that the Statement of Compatibility does not identify by clause or section number any of the many provisions of the Bill that it discusses. As the Committee acknowledges, the Statement of Compatibility is very lengthy and deals with a large and complex Bill that amends three separate Acts. Further, the operation and effect of many of the provisions under the Bill are quite similar and engage the Charter of Human Rights and Responsibilities in the same way. For this reason, it seemed more appropriate to deal with these provisions generically, rendering the document comprehensive and easier to read, rather than trying to deal with each and every provision separately. The Statement does; however, refer to the specific Acts that engage a particular right.

The Committee has also requested clarification in relation to new sections 24L and 24ZQ(1)(a) of the Prevention of Cruelty to Animals Act 1986 (the POCTA Act). Responses to these specific matters raised by the Committee are set out as follows:

1. Why does new section 24L of the POCTA Act permit entry into private premises in the absence of an emergency or a court warrant?

New section 24L is an existing provision under the POCTA Act and to date, has been used infrequently. The purpose of the section is essentially to provide an auditing power for the Minister to allow inspection of non-residential premises in non-emergency circumstances. It permits the Minister for Agriculture to appoint an appropriately qualified inspector to inspect animal welfare conditions at locations where large numbers of animals are congregated and may be at risk of poor welfare development, such as large animal transportation facilities, and to ensure they are compliant with animal welfare standards provided by the 31 Codes of Practice. Other existing powers only permit investigation of alleged cruelty offences under the Act or Regulations. Inspectors appointed under section 24L are either senior level inspectors or persons with specialist qualifications in a particular veterinary field (who if not inspectors themselves; would be accompanied by an experienced inspector).

2. Why does the new section 24L refer generally to 'the purposes' of Parts 2 and 2A and the regulations of the Act, rather than setting out specific situations when specialist inspectors can enter non-residential premises housing animals?

Specialist inspectors may be required to exercise their power of entry under section 24L of the Act for the purpose of preventing or investigating alleged animal cruelty offences under Part 2 of the Act and the regulations, and to ensure that an inspector's enforcement powers are properly exercised under Part 2A of the Act and the regulations. There are a number of provisions that relate to animal cruelty and enforcement powers under these Parts and the regulations, and therefore, for drafting reasons, section 24L refers more broadly to ‘the purposes’ of Parts 2 and 2A of the Act and the regulations.

3. Why does new section 24ZQ(1)(a) permit inspectors to require people to provide information in the absence of an emergency or a specific court warrant to that effect?

The power under section 24ZQ(1)(a) of the Act is confined to situations where it is reasonably necessary to determine whether an offence against the Act or regulations has been or is about to be committed or cruelty to an animal is likely to occur, and where the inspector is exercising a power of entry under the Act. In all cases (with the exception of new section 24L of the Act), an inspector will have entered the premises in an emergency situation or under a warrant. This power is important and can often prove vital in emergency situations where, for example, a cruelty offence is about to be committed and the inspector needs to be informed of the location of the animal, as well as in assisting investigations for alleged cruelty offences.

4. Why does the new section 24ZQ(1)(a) refer to questioning 'to the extent that is necessary to determine whether an offence has been or is about to be committed' rather than setting out specific questions that an inspector may require a person to answer?

The line of questioning under section 24ZQ(1)(a) of the Act will depend on the individual situation and be determined on a case by case basis. It is impossible to identify the questions the inspector may need to ask in view of the large number of animal species, management systems and environmental circumstances that can be encountered. The type of questions must; however, be confined for the purpose of determining whether an offence against the Act or regulations has been or is about to be committed.

5. Will people questioned under new section 24ZQ(1)(a) be told of their right not to provide self-incriminating information?

The right not to be compelled to testify against oneself or to confess guilt in section 25(2)(k) of the Charter is engaged once a person is charged. The new section 24ZV provides further protection against self-incrimination prior to a person being charged. All inspectors will be advised by the Department through training and professional conduct programs that they should inform people of their right to protection against self-incrimination under new section 24ZV of the Act, when exercising this power.

Joe Helper MP
Minister for Agriculture

12 December 2007

The Committee thanks the Minister for his response.

The Committee notes the Minister’s reply to the Committee’s concern that the Statement of Compatibility ‘did not identify by clause and section number’ the provisions it discussed. The Committee observes that the Minister’s reply addresses a different issue: whether or not a Statement of Compatibility should ‘deal with each and every provision separately’. Whilst the Committee agrees that a Statement of Compatibility may appropriately discuss provisions that raise common issues together, the Committee reiterates its view that it is always essential to identify the provisions being discussed by clause and section number, so that members of parliament can readily cross-reference the discussion in the Statement with the relevant provision in the Bill.

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Crimes Amendment (Child Homicide) Bill 2007

The Bill was introduced into the Legislative Assembly on 5 December 2007 by the Hon. Rob Hulls MLA. The Committee considered the Bill on 4 February 2008 and made the following comments in Alert Digest No. 1 of 2008 tabled in the Parliament on 5 February 2008.

Committee’s Comment

Charter Report

Keywords: Age discrimination – Protection of children – Separate offence for manslaughter of children under six – Availability of evidential provisions for drug and alcohol testing in relation to motor vehicle use where the victim is under six

Charter s. 8(3) provides that everyone ‘is entitled to the equal protection of the law without discrimination.’ Discrimination includes discrimination on the basis of age. Charter s. 17(2) provides that ‘every child has the right, without discrimination, to such protection as is needed by him or her by reason of being a child.’

The Committee notes that clause 3, inserting a new section 5A into the Crimes Act 1958, creates an offence of child homicide. The Statement of Compatibility remarks that the creation of the new offence ‘enables higher penalties to be imposed’ for manslaughter where the victim is under six years old. The Committee observes that the new offence has the same definition and maximum penalty as manslaughter. The Second-Reading Speech remarks that the new offence ‘will give scope to the courts to establish a new sentencing practice’ in cases of manslaughter where the victim is under six. The Committee considers that clause 3 may promote children’s Charter rights to protection from potentially fatal violence.

The Committee also notes that clause 3’s protection only extends to children under six years old. The Committee therefore observes that clause 3 engages the Charter’s rights to equal protection of the law without discrimination on the basis of age. The Second Reading Speech remarks:

Children under 6 years old are generally more likely to become victims of homicide than older children. This is due to a range of factors. They include the greater physical vulnerability of young children compared to older children. They also include the particular stresses posed by caring for babies and young children and the fact that physical abuse of children under school age is less likely to be detected through social contacts than the physical abuse of older children.

Whilst the Committee is concerned that the Statement of Compatibility does not address the question of age discrimination, the Committee considers that clause 3 is a reasonable limit on the Charter’s equality rights.

The Committee also notes that clause 3 provides that a person who commits manslaughter on a child under six is ‘guilty of child homicide and not of manslaughter’. The Committee observes that narrowing the definition of manslaughter in this way makes existing Victorian statutory provisions relating to manslaughter unavailable in investigations and trials when the victim is under six years old. The Committee also observes that, while clause 7 amends a number of such provisions to include the new offence of child homicide, it does not amend ss. 57-57B and 58* of the Road Safety Act 1986, which facilitate the proof of drug and alcohol testing results relevant to motor vehicle control in trials for a number of offences, including manslaughter. The Committee is therefore concerned that clause 3, by making it harder to prosecute manslaughter caused by a motor vehicle in cases where the victim is under 6, may infringe such children’s Charter rights to protection without discrimination.

Note: * Sections 57, 57A, 57B and 58 concern evidentiary provisions respectively applying to blood tests, urine tests, oral fluid tests and breath tests. The sections facilitate the reception of evidence of these tests in certain legal proceedings including murder or manslaughter.

The Committee will seek further advice from the Attorney-General as to whether the evidentiary provisions of Road Safety Act 1986 (sections 57-57B and 58) also apply to the new offence of ‘child homicide’ introduced by clause 3 of the Bill.

Pending the Attorney-General’s response, the Committee draws attention to these provisions.

Minister’s Response

In the Charter Report for the Crimes Amendment (Child Homicide) Bill 2007 the Committee asks whether sections 57-57B and 58 of the Road Safety Act 1986 apply to the new offence of child homicide.

These Road Safety Act provisions facilitate admission of drug and alcohol testing results relevant to trials for a number of offences, including culpable driving causing death, and manslaughter and murder arising out of the driving of a motor vehicle.

Clause 3 of the Bill provides that a person who kills a child under six years old in circumstances that would otherwise constitute manslaughter is guilty of child homicide and not of manslaughter. The Committee observed that narrowing the definition of manslaughter in this way makes the relevant Road Safety Act provisions relating to manslaughter unavailable in proceedings where the victim is under six years old. The Committee is therefore concerned that by "making it harder to prosecute manslaughter caused by a motor vehicle in cases where the victim is under 6”, clause 3 infringes the right of these children to protection without discrimination.

While the Bill changes the definition of manslaughter to exclude cases where the victim is under six years old, the offence of culpable driving causing death has not changed and can be prosecuted in these situations. Child homicide does not replace the offence of culpable driving causing death in situations where a child under six years old is killed by a motor vehicle.

Culpable driving causing death and child homicide concern very different situations. As I indicated in my Second Reading Speech, child homicide is concerned with the situation where an unstable parent violently reacts in the home to the stress of caring for a baby or very young child. Where someone under six years old is killed by a motor vehicle, the accused can be charged with culpable driving causing death. The practice of the Director of Public Prosecutions where a person is killed by a motor vehicle is to charge the offence of culpable driving causing death rather than manslaughter. By charging a person with culpable driving causing death when a child under six years old is killed by a motor vehicle the prosecution can lead evidence under the Road Safety Act provisions. As a result, the Road Safety Act provisions will apply in the same manner irrespective of the age of the person killed by a motor vehicle.

I trust that the above explanation addresses the Committee’s concerns.

ROB HULLS MP
Attorney-General

25 February 2008

The Committee thanks the Attorney-General for this response.

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Drugs, Poisons and Controlled Substances Amendment Bill 2008

The Bill was introduced into the Legislative Assembly on 26 February 2008 by the Hon. Rob Hulls MLA. The Committee considered the Bill on 7 March 2008 and made the following comments in Alert Digest No. 3 of 2008 tabled in the Parliament on 11 March 2008.

Committee’s Comment

Charter Report

Keywords: Liberty and security – Permit required for medical practitioner to administer, supply or prescribe a Schedule 9 poison to a patient – Whether a ‘law’

Charter s.21(1) gives everyone ‘the right to liberty and security’. The right to liberty includes a right ‘to make decisions that are of fundamental personal importance’: B(R) v Children’s Aid Society of Metropolitan Toronto [1995] 1 SCR 315, 368. The right to security includes ‘a right to access to medical treatment for a condition representing a danger to life or health without fear of criminal sanction’: R v Morgentaler [1988] 1 SCR 30, 34. 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 that clause 7 (inserting new sections 33A-33D into the Drugs, Poisons and Controlled Substances Act 1981) bars a ‘registered medical practitioner who considers it necessary to administer, supply or prescribe a Schedule 9 poison to or for one of his or her patients’ from doing so without a permit. New section 33B provides that the Secretary of the Department of Health Services may issue a permit, including any ‘terms and conditions that the Secretary considers appropriate’, and may also amend, suspend or revoke such a permit. New sections 33C & 33D provide for criminal offences for medical practitioners who administer, supply or prescribe a Schedule 9 poison in breach of the conditions of a permit or without a permit.

The Second-Reading Speech remarks:

Schedule 9 poisons include heroin, LSD and cannabis. It is therefore appropriate to clarify the requirement for a permit to be held by a practitioner before proceeding to treat a patient with a schedule 9 poison. This is consistent with current requirements under the Drugs, Poisons and Controlled Substances Regulations 2006.

The Committee observes that existing ss. 34 & 35 only regulate the supply of schedule 9 poisons to drug-dependent people or to anyone for more than eight continuous weeks; however, existing reg. 7 of the regulations criminalises the supply of a schedule 9 drug (and related conduct) to anyone without a permit.

The Committee also observes that a Canadian court has held that a law that prevents a person from obtaining marihuana for medical treatment ‘violates his right to liberty and security of the person’: R v Parker (2000) 49 OR (3d) 481; 177 DLR (4th) 385, [10]. The Committee considers that clause 7 may limit the Charter right of Victorian patients with medical conditions that require treatment with schedule 9 drugs to liberty and security.

The Committee further observes that there are well-known policy reasons to regulate the use and movement of schedule 9 poisons anywhere in the community and considers that those reasons may justify the limitation of Charter rights under Charter s. 7(2). However, the Committee notes that Charter s. 7(2) provides that only a ‘law’ may limit Charter rights and that overseas courts interpreting similar provisions have held that such a law must be appropriately circumscribed and accessible.

The Committee is concerned that new section 33B does not contain any criteria or other limitation on the Secretary’s discretion to grant or refuse a permit, or the terms on which it is granted or when it may be suspended or revoked. The Committee observes that the Canadian court mentioned above held that a similar provision was incompatible with that nation’s Charter as ‘the plenary discretion vested in the Minister precludes a finding that this is a reasonable limit’ under the Canadian equivalent to Charter s. 7(2): R v Parker (2000) 49 OR (3d) 481; 177 DLR (4th) 385, [174]-[193].

The Committee will seek further information from the Minister as follows:

1. In what circumstances will the Secretary refuse to grant a permit under new section 33B to a medical practitioner who believes that a schedule 9 drug is necessary to treat a particular patient?

2. Will those circumstances and any other guidelines or criteria that the Secretary will consider be publicly available?

Pending the Minister’s response, the Committee draws attention to clause 7.

Keywords: Adequacy of statement of compatibility

The Committee notes that the Statement of Compatibility does not address the compatibility of new sections 33A-33D with the rights of Victorian patients with medical conditions treatable by Schedule 9 poisons to liberty and security of the person. The Committee reiterates its view stated in Alert Digest No. 9 of 2007 that:

where there is a reasonable prospect that a provision in a Bill may test or infringe Charter compatibility that issue should be drawn to the attention of the Parliament and a reasoned, even if brief, analysis of why the provision is nevertheless considered compatible with the Charter should be outlined.

The Committee observes that a provision of a bill may engage a Charter right even when it replicates an existing provision contained in another law (e.g. in this instance, the regulations to the principal Act.) This is especially the case when the existing provision was enacted prior to the commencement of the Charter.

The Committee also notes that the Statement of Compatibility does not identify by clause or section number any of the provisions it discusses. The Committee reiterates its view, stated in Alert Digest No. 14 of 2007, that –

‘the absence of express references to clause or section numbers in relation to a complex Bill may render the statement of compatibility incapable of informed consideration by members of Parliament.’

The Committee draws attention to its Practice Note No. 2 concerning the content of Statements of Compatibility and the Committee’s practice in reporting on them where the Committee considers that they are inadequate or inaccurate.

The Committee will raise these concerns with the Minister.

Minister’s Response

I refer to your letter dated 12 March 2008 regarding your Committee’s consideration of the Drugs, Poisons and Controlled Substances Amendment Bill 2008.

The Committee has raised particular concerns about the compatibility of clause 7 of the Bill, with section 21(1) of the Victorian Charter of Human Rights and Responsibilities Act 2006 (the Victorian Charter), the right to “liberty and security”.

The new provisions

Clause 7 inserts a new Subdivision 3 into Part 3 of the Drugs, Poisons and Controlled Substances Act 1981 (the Act) that deals with Schedule 9 poisons. Schedule 9 poisons are poisons that have no known therapeutic benefit, and that have a trafficable value. They include heroin, LSD and cannabis.

A permit is currently required in order for a medical practitioner to treat with a Schedule 9 permit, and it is currently an offence for a practitioner to prescribe these drugs without a permit. The Bill maintains these requirements.

The Bill gives the Secretary a new power to impose conditions on a Schedule 9 permit (new section 33B(2)), and a power to revoke or suspend the permit (new section 33B(3)).

General concerns raised by the Committee

The Committee notes that the Statement of Compatibility does not address the “compatibility of the new sections 33A – 33D with the rights of Victorian patients with medical conditions treatable by schedule 9 poisons to liberty and security of the person.”

The Committee raises the concern that “clause 7 may limit the Charter right of Victorian patients with medical conditions that require treatment with Schedule 9 drugs to liberty and security”. A number of Canadian decisions concerning article 7 of the Canadian Charter have been cited in support of this proposition.

It is important to note that the Canadian provision to which the Committee refers is not analogous to the Victorian provision.

Article 7 of the Canadian Charter of Rights and Freedoms (the Canadian provision) provides:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Section 21(1) of the Victorian Charter provides:

Every person has the right to liberty and security.

Section 21(1) of the Victorian Charter excludes a right to access medical procedures. This is made clear in the explanatory memorandum to the Victorian Charter, which states that clause 21 -

“is intended to operate in a different manner to article 7 of the Canadian Charter of Rights and Freedoms which guarantees the right to “life, liberty and security of the person” in that the Victorian provision is not intended to extend to such matters as a right to bodily integrity, personal autonomy or a right to access medical procedures”.

Therefore, the provisions in question do not engage the right to liberty and security of the person.

Nature of permit system

To understand the nature of the amendments, it is necessary to consider the nature of the permit system under the Act.

The function of the system is not to obstruct or veto the clinical judgements of practitioners, but to protect the community by monitoring the flow of drugs of dependence, and to minimise the risk of substance dependence by preventing patients from obtaining the same drug from more than one doctor simultaneously.

Practicalities of Schedule 9 permit applications

To put this into context, I emphasise that Schedule 9 poisons are poisons with no established therapeutic application. I understand that there has never been an application made, and consequently no permit ever granted, to treat a patient with a Schedule 9 poison.

Schedule 9 poisons have been included in the Bill in order to cover the eventuality that a practitioner wishes to prescribe a Schedule 9 poison that is available overseas and registered for a therapeutic use in an overseas country.

However, it is envisaged that if a poison in Schedule 9 was found to have a legitimate use for the therapeutic treatment of a patient, by the time it had gone through the processes of establishing quality, safety and efficacy required under the Therapeutic Goods Act 1989, it would be rescheduled to a Schedule 8 poison.

Specific information sought by the Committee

  1. In what circumstances will the Secretary refuse to grant a permit under new section 33B to a medical practitioner who believes that a schedule 9 drug is necessary to treat a particular patient?

Under the present legislation, when issuing a permit, the Secretary considers the criteria set out in Regulation 8 of the Drugs, Poisons and Controlled Substances Regulations 2006. New Regulations will be made after the Bill has been passed by Parliament; however no policy change is intended.

The Regulations require that the practitioner must establish patient identity and provide evidence of therapeutic need.

If these considerations are addressed, a permit will be issued unless there is a pre-existing permit for that patient in that time period.

If a practitioner is making a higher number of applications than might be expected for the condition being treated, or there is some other anomaly which might indicate that the drug is being obtained for reasons other than therapeutic need (e.g. addiction or trafficking), the permit may be withheld or conditions imposed until the issue is investigated.

  1. Will those circumstances and any other guidelines or criteria that the Secretary will consider be publicly available?

The Regulations, a guide to the Regulations and summaries for health professionals are all available on the Department of Human Service’s website.

Records of individual permit applications are not made publicly available, for privacy reasons. If a treating doctor or patient is dissatisfied with the outcome of a permit application, the usual administrative review processes would be open to them.

I trust that this information satisfies your concerns.

HON DANIEL ANDREWS MP
MINISTER FOR HEALTH

3 April 2008

The Committee thanks the Minister for his response.

The Committee notes the Minister’s reference to the explanatory memorandum to Charter s. 21 and the distinction it draws between that that section of the Charter and the Canadian jurisprudence cited by the Committee in its report on the Bill. Whilst the Committee agrees that clause 7 therefore may not engage the Charter right to liberty and security, the Committee observes that the clause 7, for similar reasons to those discussed in its report, may engage the Charter rights of patients with medical conditions that require treatment with schedule 9 drugs to life, freedom from cruel or inhuman treatment and privacy. The Committee draws Parliament’s attention to clause 7’s compatibility with those rights and to the explanation of clause 7’s operation and purpose provided by the Minister.

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Working with Children Amendment Bill 2007

The Bill was introduced into the Legislative Assembly on 21 August 2007 by the Hon. Rob Hulls MLA. The Committee considered the Bill on 17 September 2007 and made the following comments in Alert Digest No. 12 of 2008 tabled in the Parliament on 18 September 2007.

Committee’s Comment

[10]

The Committee reports to Parliament pursuant to a term of reference provided in section 17(a)(i) of the Parliamentary Committees Act 2003, – ‘trespasses unduly on rights or freedoms’ – Administrative law – Exercise of discretion using criteria based on inconclusive charge (finally dealt with) made against a person where no merits determination is made.

The Committee notes that the amendments will allow the Secretary to exercise an administrative discretion (if exceptional circumstances exist) to issue a negative assessment or revoke an existing assessment using as the criteria, charges that are ‘finally dealt with’ such as the withdrawal or dismissal of a charge, where there is a significant link between the final dealing and a risk to the safety of children. The Committee observes that such a criteria constitute circumstances where there is no conclusive judicial merits determination.

The Committee notes that the issue of a negative notice of assessment or revocation of an existing assessment based on such exceptional grounds is reviewable by VCAT (proposed amended section26(5)).

The Committee considers that the exercise of administrative powers based on such non-merits criteria is unusual and may trespass on a person’s rights and freedoms. The Committee raises this issue in greater detail in the Charter Report below.

The Committee will raise the issue with the Attorney-General to seek further advice.

Charter Report

Keywords – Statement of compatibility – Incorrect description of offence – Loitering near schools etc

The Committee notes that, in the section of the Statement of Compatibility titled ‘unlawful and arbitrary interferences’, the offence of ‘loitering near schools’ etc in s60B of the Crimes Act 1958 is incorrectly described in the following terms:

To be charged with the offence, a person must:

      • have been charged with a specified sexual offence (all of which are currently included as 'relevant offences' under the act); and

      • be in or near a place frequented by children, 'without reasonable excuse'.

In fact, s60B provides that, to be charged with this offence, a person must loiter near a school or certain public places after have been found guilty of a specified sexual offence. Merely being charged with such an offence is insufficient.

The Committee resolves to write to the Attorney-General outlining this concern.

Keywords – Presumption of innocence – Discretion to refuse or revoke assessment notice in exceptional circumstances – Criminal charges finally dealt with without a finding of guilty or not guilty – Secretary’s finding of a significant link between a final dealing and a risk to safety of children – Protection of children

The Committee observes that the Statement of Compatibility does not address the compatibility of clauses 10 & 12 (amending ss 17 & 23 of the Working With Children Act 2005) with Charter s25(1). Charter s25(1) gives ‘a person charged with a criminal offence… the right to be presumed innocent until proved guilty according to law.’ The Committee notes that the European Court of Human Rights has held that an equivalent provision under the European Convention on Human Rights and Fundamental Freedoms ‘may be infringed not only by a judge or court but also by other public authorities’ (Allenet de Ribemont v France [1995] ECHR 5, [36]) and that the purpose of the presumption of innocence ‘is to protect the accused against any judicial decision or other statements by State officials amounting to an assessment of the applicant’s guilt without him having previously been proved guilty according to law.’ (Rushiti v Austria [2000] ECHR 106, [31])

The Committee notes that clauses 10 & 12 provide that the Secretary’s new powers to refuse or revoke a person’s assessment notice (making it an offence for the person to work with children) in exceptional circumstances on the basis of the applicant’s criminal record apply not only to pending charges and to offences where the applicant has been found guilty but also to charges that have been ‘finally dealt with’ without a finding of guilty or not guilty. Section 6 of the Act lists the following ways a charge can be finally dealt with without a finding of guilty or not guilty:

    • the charge is withdrawn (including a nolle prosequi, i.e. formal discontinuation of the charge by the prosecutor)

    • the charge is dismissed by a court

    • the person is discharged by a court following a committal hearing

The Committee observes that none of these determinations amount to proof of guilt according to law. The Committee notes that the European Court of Human Rights has held that the presumption of innocence continues to apply when a court has ‘closed the proceedings’ against a person but did not ‘determine the question of guilt’ (Allenet de Ribemont v France [1995] ECHR 5, [35].)

The Committee notes that clauses 10 and 12 provide that the new powers may only be applied to a person on the basis of a charge that has been finally dealt with if the Secretary is satisfied that there is a significant link between the final dealing and a risk to the safety of children posed by the person. The Committee observes that such a finding may involve (and may to be seen to involve) a conclusion by the Secretary that the charge was well founded. The Committee therefore considers that any refusal or revocation of an application by the Secretary on the basis of a charge that has been finally dealt with (other than by a finding of guilty) may breach the presumption of innocence of the person who is the subject of the charge.

Charter s17(2) provides that ‘every child has the right… to such protection as is in his or her best interests and is needed by him or her by reason of being a child.’ The Committee notes that the evident purpose of clauses 10 & 12 is to protect children and that the Secretary’s new power to refuse or revoke an application is limited to ‘exceptional circumstances’ and is subject to review by the Victorian Civil and Administrative Tribunal. The Committee observes that, as the Statement of Compatibility does not discuss the compatibility of clauses 10 & 12 with Charter s25(1), it does not address whether or not they strike a reasonable balance between Charter s25(1) and Charter s17(2).

The Committee resolves to write to the Attorney-General outlining this concern. Pending the Minister’s response, the Committee draws attention to the provision.

Minister’s Response

Thank you for your letter commenting on the Working with Children Amendment Bill, which has since passed into law as the Working with Children Amendment Act 2007 (the Amendment Act). I apologise for the delay in responding.

The Amendment Act aims to enhance the existing decision-making mechanisms within the Working with Children Act 2005 (the Act) and makes a number of technical amendments addressing practical and legal issues that have arisen in the first year of operation of the Working with Children Check (WWCC) scheme. I will respond to the Committee's specific comments in turn.

'Exceptional Circumstances' Discretion

The Committee comments that the 'exceptional circumstances' discretion will allow the Secretary to the Department of Justice to issue a negative assessment or revoke an existing assessment notice based on charges that have been withdrawn or dismissed and that "the exercise of administrativepowers based on such non-merits criteria is unusual and may trespass on uperson's rights and freedoms."

Response

In considering the Committee's comments, advice was obtained which did not concur with the Committee's interpretation. I note that I have previously committed to a 3 year review of the Act. The review will commence this year and given that the Committee's interpretation differs from the advice received, it would be appropriate that the Committee's observations be considered in this review.

Section 60B of the Crimes Act 1958

The Committee reported that the Statement of Compatibility for the Bill incorrectly described the elements of the offence of 'loitering near schools etc' as per section 60B of the Crimes Act 1958. The Statement noted that to be charged with 'loitering near schools etc' a person must have been previously charged with a specified sexual offence. The Committee rightly noted that

“In fact, s60B provides that, to be charged with this offence, a person must loiter near a school or certain public places after having been found guilty of a specified sexual offence. Merely being charged with such an offence is insufficient.”

Response

I note and agree with the Committee's observation regarding the incorrect description of the offence of “loitering near schools etc” contained in the Statement of Compatibility, but note that this does not affect the operation of the Act with respect to the offence.

Right to he Presumed Innocent Until Proved Guilty

The Committee reported that the Statement of Compatibility did not address the compatibility of the new 'exceptional circumstances' discretion in light of Charter s25(1), which gives "a person charged with a criminal offence.. . the right to be presumed innocent until proved guilty according to law."

The Committee noted that

“the European Court of Human Rights has held that an equivalent provision under the European Convention on Human Rights and Fundamental Freedoms 'may be infringed not only by a judge or court but also by other public authorities’ ... “

Response

I note that the right to be presumed innocent is a right in criminal proceedings, and accordingly, protects a person in the context of a trial. It has also been held to be relevant to pre-trial matters such as bail, and post-trial matters such as sentencing. These are all, however, stages of the criminal process. The cases cited by the Committee involve statements made in the context of, or in close connection with, criminal proceedings. As noted above, the presumption of innocence does not apply outside of this context. Taking into account proceedings for certain crimes in assessing an application for a WWC does not engage the right, as it is a process which occurs outside of the criminal process.

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

ROB HULLS MP
Attorney-General

19 March 2008

The Committee thanks the Attorney-General for his response.

The Committee notes the Attorney-General’s view that the Charter’s right to be presumed innocent does not apply outside of the context of criminal proceedings. The Committee observes that this interpretation would mean that defendants would lose their right to be presumed innocent of the charges against them simply because those charges are dropped. The Committee also observes that Charter s. 25(1) provides that criminal defendants have ‘the right to be presumed innocent until proved guilty according to law’ and that – aside from its title – it does not refer to criminal proceedings. The Committee further observes that human rights laws should be “interpreted in such a way as to guarantee rights which are practical and effective as opposed to theoretical and illusory”: Allenet de Ribemont v France [1995] ECHR 5. The Committee additionally observes that the amendments to ss. 17 and 23 of the Working with Children Act 2005 made by clauses 10 and 12 of the bill, by requiring the Secretary to consider whether there is a significant link between a final dealing and the safety of children, may be regarded as connecting the Secretary’s decision to the earlier criminal proceedings. The Committee therefore reiterates its view that these provisions may limit the Charter’s right to the presumption of innocence.

Committee Room
7 April 2008

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