Scrutiny of Acts and Regulations Committee

Alert Digest No 6 of 2008

Tuesday, 27 May 2008

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Appropriation (2008/2009) Bill 2008

Introduced: 6 May 2008
Second Reading Speech: 6 May 2008
House: Legislative Assembly
Member introducing Bill: Hon. John Brumby MLA
Responsible Minister: Hon. John Lenders MLC
Portfolio responsibility: Treasurer


Purpose

This Bill provides appropriation authority for payments of certain sums out of the Consolidated Fund for the ordinary annual services of the Government for the 2008/2009 financial year.

Content and Committee comment

[Clauses]

[2]. The Act comes into operation on Royal Assent.

[3]. Provides that the Treasurer may issue the stated amount out of the Consolidated Fund in respect of the financial year 2008/2009 for the purposes set out in Schedule 1 to the Bill.

[4]. Provides that the Consolidated Fund is appropriated to the extent necessary for the purposes included in clause 3.

The Committee makes no further comment.

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Appropriation (Parliament 2008/2009) Bill 2008

Introduced: 6 May 2008
Second Reading Speech: 6 May 2008
House: Legislative Assembly
Member introducing Bill: Hon. John Brumby MLA
Minister responsible: Hon. John Lenders MLA
Portfolio responsibility: Treasurer


Purpose

This Bill provides appropriation authority for payments of certain sums out of the Consolidated Fund to the Parliament for the 2008/2009 financial year.

Content and Committee comment

[Clauses]

[2]. The Act comes into operation on Royal Assent.

[3]. Provides that the Treasurer may issue the stated amount out of the Consolidated Fund in respect of the financial year 2008/2009 for the purposes set out in Schedule 1 to the Bill.

[4]. Provides that the Consolidated Fund is appropriated to the extent necessary for the purposes included in clause 3.

The Committee makes no further comment.

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Drugs, Poisons and Controlled Substances (Volatile Substances) (Repeal) Bill 2008

Introduced: 7 May 2008
Second Reading Speech: 8 May 2008
House: Legislative Assembly
Member introducing Bill: Hon. Lisa Neville MLA
Portfolio responsibility: Minister for Mental Health


Purpose

The Bill repeals the Drugs, Poisons and Controlled Substances (Volatile Substances) Act 2003 (the amending Act) which for a trial period of 2 years inserted Division 2 into Part IV of the Drugs, Poisons and Controlled Substances Act 1981 (the Act) giving the police particular powers when dealing with persons under 18 years of age using inhalants. The Bill will enable Division 2 of Part IV of the Act to continue in operation because the sunset provision contained in section 5 of the amending Act is proposed to be repealed.

Note 1: The amending Act allowed the new scheme to operate for 2 years from its commencement. The 2006 amending (extension of provisions) Act amended the original sunset provision to extend the scheme to 4 years from its commencement. The amending Act commenced operation on 1 July 2004.

Note 2: Section 1 (the purpose section) of the amending Act provides –

The purpose of this Act is to amend the Drugs, Poisons and Controlled Substances Act 1981 to enable members of the police force —

(a) to search persons without warrant in certain circumstances for the purpose of seizing volatile substances or items used to inhale volatile substances; and

(b) to apprehend and detain persons under 18 years of age to protect them and others from the effects of inhaling volatile substances.

Note 3: The Committee reported on the amending Act in Alert Digest No.3 of 2003. The explanatory memorandum to the amending Act can be found in the annual volume of the Acts of Parliament 2003, Volume 3 (40 – 60) commencing on page 2229.

The provisions of the amending Act (inserting new sections 60A to 60T into the Act) include –

    • A purpose section stating that the provisions in the new Division do not create any offence of possessing or inhaling volatile substances or an item used to inhale a volatile substance,

    • A limitation that provides that the powers in the new Division may only be used in a public place or on private premises with the consent of the occupier or owner of the premises,

    • A power for police to use reasonable force to search a person under the age of 18 for volatile substances without a warrant,

    • Search any person (irrespective of age), vehicle, package or thing in a person’s possession for a volatile substance or an item used to inhale a volatile substance (‘an item’) where the police have reasonable grounds to belief that the person intends to provide a volatile substance or an item to a person under 18 years of age to inhale.

    • Request an explanation why any person is carrying or in possession of volatile substances,

    • Seize volatile substances whether an explanation is given or not as to why the person is carrying or in possession of the volatile substance,

    • Apprehend and detain a person under 18 years of age where there are reasonable grounds for believing that such a person has inhaled or inhaling volatile substances and is likely to cause immediate bodily harm to themselves or any other person.

    • Detain a person for such time until the person may be released into the care of a person able to take care of the detained person where the other person consents to care of the detained person. Detention must not be in a police gaol, cell or lock-up and the detained person must not be interviewed by police in relation to any offence,

    • Dispose and forfeiture of volatile substances to the Crown.

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill come into operation on 30 June 2008.

[3]. Repeals the amending Act which inserted the new Division 2 in Part IV of the Act for a 2 year (later extended) trial period. Section 5 of the amending Act contained the sunset provision which was to come into force at the end of the trial period. The repeal of the amending Act allows the amendments to remain in force as the sunset provision will not come into operation.

[4]. Repeals this amending Act on 30 June 2009.

Charter Report

Privacy – Property – Liberty – Drug use by children – Harm minimisation – Whether reasonable limit

Charter s.7(2) provides that human rights may be ‘subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society’. Charter s. 17(2) provides that children are entitled to such protection as is in their ‘best interest’.

The Committee notes that clause 3 repeals the Drugs, Poisons and Controlled Substances (Volatile Substances) Act 2003, s. 5 of which is a sunset clause for Division 2 of Part IV of the Drugs, Poisons and Controlled Substances Act 1981. The Committee observes that the compatibility of clause 3 with the Charter therefore depends on the compatibility of existing Division 2 of Part IV with the Charter.

The Committee also notes that Division 2 of Part IV deals with the detection and prevention of inhaling of volatile substances by children. The Committee observes that such legislation inevitably engages a variety of human rights, but that reasonable provisions will typically satisfy Charter s.7(2), as well as internal limits on particular rights.

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

  • Privacy (Charter ss.13(a)): provisions for the search, without warrant, of children who are reasonably suspected of inhaling volatile substances (s. 60E) and of people who are reasonably suspected of supplying volatile substances or items to children to use to inhale (s. 60F)

  • Property (Charter s.20): provisions for the seizure of items that are suspected of being used by or given to a child to inhale (ss.60J & 60K)

  • Liberty (Charter s.21(1)): provisions for the detention of children who are likely to harm themselves or another person and to hold them until they are released into the care of a person who is capable of caring for them (ss.60L & 60M)

The Statement of Compatibility contends that these provisions (in the context of other protective provisions in the Act) do not infringe the rights to privacy, property or liberty, and also promote the right of children to protection.

Having considered the above Charter rights and 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. The Committee also considers that clause 3 promotes the Charter right of children to such protection as is in their best interests.

Age discrimination – Search, seizure and detention of people suspected of inhaling – Whether discrimination against children – Whether discrimination against adults

Charter s. 8(2) provides that everyone has the right to ‘enjoy his or her human rights without discrimination’. Charter s. 8(3) provides that everyone is entitled to ‘equal protection of the law without discrimination’. Discrimination includes discrimination on the basis of age. Charter s. 7(2) provides that human rights may be ‘subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society’.

The Committee notes that existing s. 60A of the Drugs, Poisons and Controlled Substances Act 1981 provides that the purpose of Division 2 of Part IV is ‘to protect the health and welfare of persons under 18 years of age’. The Committee also notes that the following provisions of Division 2 are limited to persons under 18 years of age:

  • The requirement for police exercising their powers to take into account the best interests of the person (s.60B)

  • Provisions for searching a person or seizing items based on that person’s suspected inhaling (ss.60F, 60J(a) & 60K(a))

  • Provisions for searching for or seizing items based on the suspicion that the items will be given to a person to inhale (ss. 60F, 60J(b-c) & 60K(b)(ii-iii))

  • Provisions for detaining people likely to harm themselves or others until someone is available to care for them (ss.60L(a) & 60(1))

  • Provisions barring the return of items to people unless accompanied by a parent or guardian (s.60N(4))

The Committee considers that clause 3 may engage the rights of people aged under 18 to enjoy their rights without discrimination. The Committee also considers that clause 3 may engage the rights of people aged 18 or over to equal protection of the law.

The Statement of Compatibility remarks:

The powers of the police contained in division 2 of Part IV will remain in the Drugs, Poisons and Controlled Substances Act 1981 because studies have shown that young people are more likely to be involved in inhaling volatile substances because of the cost, availability and accessibility. Whilst under the influence of volatile substances, young persons are more likely to have accidents and injure themselves in some way.

The Committee observes that the question of the compatibility of clause 3 with the Charter’s rights to equality may depend on whether or not the restrictions of the other provisions to people aged under 18 are reasonable limitations on those rights according to the test in Charter s.7(2).The Minister remarked in her Second Reading Speech:

The reviewed data shows that the majority of chroming incidents occur in the age group of people up to the age of 18. In 2004-05 the MAS attended 123 incidents of inhalant abuse in the under-18 age group. This equates to 51 per cent of all attendances by MAS staff being to young people aged under 18. Public hospital accident and emergency departments show a similar trend, reporting that where inhalant abuse was the primary concern, 62 per cent of presentations in 2004-05 and 53 per cent in 2005-06 occurred in the under-18 age group.

The Committee refers to Parliament for its consideration the questions of whether:

  • clause 3 discriminates against the right of people under 18 to equal enjoyment of their rights to privacy, property and liberty without discrimination

  • clause 3 discriminates against the right of people 18 or over to equal protection of the law from dangers to health and wellbeing caused by inhalants without discrimination

  • in either case, clause 3 is a reasonable limit on the Charter’s rights against discrimination according to the test in Charter s. 7(2)

The Committee makes no further comment.

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National Gas (Victoria) Bill 2008

Introduced: 7 May 2008
Second Reading Speech: 8 May 2008
House: Legislative Assembly
Member introducing Bill: Hon. Peter Batchelor MLA
Portfolio responsibility: Minister for Energy and Resources


Purpose

The Bill —

  • applies the National Gas Law (NGL) and National Gas Rules (NGR) as laws of Victoria and will repeal the Gas Pipelines Access (Victoria) Act 1998;

  • provides for transitional arrangements in relation to access arrangements relating to pipeline services provided by means of distribution pipelines;

  • provides for the transfer of responsibility for Victorian specific economic regulation of pipeline services provided by means of distribution pipelines from the Essential Services Commission (ESC) to the Australian Energy regulator (AER).

Content and Committee comment

[Clauses]

[2]. The Bill comes into operation on proclamation.

Note: From the explanatory memorandum – The clause does not specify a default commencement date because the Bill is implementing a nationally agreed legislative scheme. It is the intention of the scheme that it comes into operation on the same day in all of the participating jurisdictions. The clause provides for maximum flexibility in relation to the commencement of the Bill to ensure that the nationally agreed legislative scheme will commence in Victoria on the nationally agreed day.

[7]. Applies, as a law of Victoria, the National Gas Law set out in the Schedule to the National Gas (South Australia) Act 2008 of South Australia. The applied Law is to be referred to as the National Gas (Victoria) Law.

[8]. Applies, as regulations for the purposes of the National Gas (Victoria) Law, the regulations in force under Part 3 of the National Gas (South Australia) Act 2008 of South Australia. The applied regulations are to be referred to as the National Gas (Victoria) Regulations.

Parliamentary Committees Act 2003, section 17(a)(vii) – ‘insufficiently subjects the exercise of legislative power to parliamentary scrutiny’

The Committee commented on the predecessor legislation to this Bill, the Gas Pipelines Access (Victoria) Bill, in Alert Digest No. 3 of 1998. The Committee there raised a number of concerns that are typically found in national schemes legislation or application of laws Acts. The principal issue for the Committee concerns Parliamentary scrutiny of such proposed laws. In this Bill the Parliament is asked to apply the law of South Australia (the lead jurisdiction) as a law of Victoria. The National Gas (South Australia) Act 2008 (the ‘South Australian Act’) to be applied is an appendix to the Victorian Bill and this appendix consists of –

• the South Australian explanatory memorandum,

• the South Australian Act (sections 1 to 22) and

• the schedule to the South Australian Act which is the National Gas Law to be applied in each jurisdiction.

The Committee notes that in respect to clause 7 of the Bill adopting the National Gas Law (as set out in the schedule of the South Australian Act) the Committee’s counterpart scrutiny committees in New South Wales and Queensland made the following observations–

Legislation Review Committee (NSW) – Although the NSW Parliament has the present Bill before it there is no scope to debate the need for any modification of the National Gas Law as it has already been signed off by all parties including NSW. The Committee is of the opinion that it would be an advantage if the NSW Parliament could be given an earlier opportunity, possibly through an exposure draft, to express its views on future national scheme legislation rather than have it presented for adoption in a final form that has already been agreed to or implemented by the Commonwealth and the other Australian States.

Scrutiny of Legislation Committee (Qld) – The Committee in common with the legislative scrutiny committees of the parliaments of other States and the Commonwealth, has identified concerns that elements of intergovernmental legislative schemes might undermine the institution of Parliament. In relation to amendments to uniform legislation, the committee’s concerns relate to the degree of flexibility retained by each jurisdiction in its consideration of proposed amendments.

The Committee refers to Parliament the question whether the bill has sufficient regard to the institution of Parliament.

Clause 8 of the Victorian Bill also applies the regulations made under Part 3 of the South Australian Act (sections 10 – 13) as the Victoria regulations which may be referred to as the National Gas (Victoria) Regulations.

Section 11 of the South Australian Act expressly provides that Parliamentary disallowance of the regulations is excluded. The section also provides that regulations may only be made on the unanimous recommendations of the Ministers of the participating jurisdictions.

The Committee notes its comments made in May 1998 –

The Committee is also troubled at the prospect of the Victorian Parliament adopting regulations which are made interstate. Again, there is no chance of appropriate scrutiny or input. It seems to the Committee that this is not sound Parliamentary practice.

Once again, in respect to the regulations the Committee notes the response of the then Minister the Hon. Alan Stockdale MLA in May 1998 –

In order to balance the objective of effecting Victoria’s commitments to national competition policy reform under COAG Agreements with the objective of appropriate scrutiny, I invite the Committee to be involved in the process leading up to the approval of the “lead regulations”

The Committee notes that there may be good reasons where national scheme regulations are involved to not allow for parliamentary disallowance, however the Committee is of the view that does not mean that such regulations should not be subject to some form of parliamentary or independent oversight.

Having considered these matters the Committee will seek further advice from the Minister concerning the following –

1. Will the regulations or any amendments to the regulations be subject to parliamentary or independent review or scrutiny by any jurisdiction?

2. Where future national scheme legislation is negotiated involving application of laws in this jurisdiction will the Minister consider the possibility of releasing draft exposure Bills for scrutiny by a Parliamentary Committee?

3. Will any amendments made to the South Australian Act and or the schedule to that Act come before the Victorian Parliament for counterpart amendment

4. Does Charter section 32 (Interpretation of laws) apply to the National Gas (Victoria) Law, the National Gas (Victoria) Regulations, the National Gas Rules and statutory instruments made under them as they apply in Victoria? (also refer to Charter Report below).

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

The Committee refers to the Parliament the broader question of whether the Bill has sufficient regard to the institution of Parliament.

Section 85 – Report to the Parliament pursuant to section 17(b) of the Parliamentary Committees Act 2003 concerning a repeal alteration or variation of section 85 of the Constitution Act 1975 (limitation of the jurisdiction of the Supreme Court)

[16]. Declares that it is the intention of section 14(2) of the Bill to alter or vary section 85 of the Constitution Act 1975.

Note: From the explanatory memorandum – Section 14(2) provides that no proceeding for judicial review or for a declaration, injunction, writ, order or remedy may be brought before the Supreme Court to challenge or question any action, or purported action, of a relevant Minister taken, or purportedly taken, in relation to a cross boundary distribution pipeline unless this jurisdiction has been determined to be the participating jurisdiction with which the cross boundary distribution pipeline is most closely connected. The effect of the provision is that proceedings may only be brought in the Supreme Court of the jurisdiction with which a cross boundary distribution pipeline is most closely connected.

The Committee notes the section 85 statement in the Minister’s Second Reading Speech –

Clause 14(1) of the Bill provides that if a pipeline is a cross-boundary pipeline, any action taken under the national gas legislation of a participating jurisdiction in whose jurisdictional area a part of the pipeline is situated (by a relevant minister or court) is taken also to be taken under the national gas legislation of each participating jurisdiction in whose jurisdictional area a part of the pipeline is situated (by a relevant Minister or Court as the case requires).

Clause 14(2) of the Bill provides that no proceeding for judicial review or for a declaration, injunction, writ, order or remedy may be brought before the Court to challenge or question any action, or purported action, of a relevant minister taken, or purportedly taken, in relation to a cross boundary distribution pipeline unless this jurisdiction has been determined to be the participating jurisdiction with which the cross boundary distribution pipeline is most closely connected.

The relevant minister in relation to a cross-boundary distribution pipeline is determined by the National Competition Council under the national gas law.

The reasons for the variation to the application of section 85 of the Constitution Act 1975 are as follows.

The purpose of clause 14(2) is to prevent jurisdiction forum shopping in relation to decisions of a relevant minister relating to cross boundary distribution pipelines.

The effect of the provision is that proceedings may only be brought in the Supreme Court of the jurisdiction with which a cross-boundary distribution pipeline is most closely connected.

Clause 14 of the Bill is a uniform provision that forms part of the nationally consistent scheme for regulation of pipeline services provided by means of transmission and distribution pipelines. It is the intention that it will be enacted in identical terms by all of the parliaments of the state and territory participating jurisdictions. The provision is necessary for the integrity of nationally agreed scheme.

The Committee reports to Parliament pursuant to a term of reference provided in section 17(b) of the Parliamentary Committees Act 2003, – ‘limitation of the jurisdiction of the Supreme Court’

The Committee having reviewed the section 85 statement made in the Second Reading Speech, the declaratory and enabling clauses and the explanatory memorandum and having regard to the desirability of giving uniform effect to a national regulatory scheme is of the view that the proposed provisions altering or varying section 85 of the Constitution Act 1975 are appropriate and desirable in all the circumstances.

[39]. Repeals the Gas Pipeline Access (Victoria) Act 1998.

Appendix

National Gas (South Australia) Bill 2008

The incorporated South Australian Act (the National Gas Law) includes the following provisions that may test the Committees terms of reference under section 17(a) of the Parliamentary Committees Act 2003.

  • Search warrants issued by a Magistrate on the lower threshold of ‘reasonably suspects’ (clause 35),

  • Power to obtain information or documents (clause 42),

  • Privilege against self-incrimination preserved (clause 42(6) and 63),

  • Legal professional privilege preserved (clauses 42(8) and 62),

  • Natural justice – public hearing – hearing may be held in private (clause 196), power to summons persons to give evidence before a dispute resolution body, penalty for refusing to answer questions (other than self-incriminating questions) (clauses 201 and 203).

Charter Report

Interpretation of legislation compatibly with human rights and by reference to relevant human rights decisions – Whether the Charter’s interpretation provision applies to the National Gas (Victoria) Law, Regulations Rules and statutory instruments – Absence of an override declaration

Charter s.31 provides that ‘Parliament may expressly declare in an Act that that Act has effect despite anything else set out in this Charter’. Charter s.32(1) provides that ‘[s]o far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.’ Charter s.32(2) provides that any court judgment ‘relevant to a human right may be considered in interpreting a statutory provision’.

Charter s.3 defines ‘statutory provision’ to include an Act or a subordinate instrument. Section 38 of the Interpretation of Legislation Act 1984 defines ‘Act’ to mean ‘an Act passed by the Victorian Parliament’ and ‘subordinate instrument’ to mean rules and other legislative documents ‘made under’ such an Act.

The Committee notes that the Bill applies the following documents as laws of Victoria:

  • a schedule (‘the National Gas Law’) to the National Gas (South Australia) Act 2008 (SA) (clause 7 of the Bill)

  • regulations in force under the National Gas (South Australia) Act 2008 (SA) (clause 8 of the Bill)

  • rules made by either a South Australian Minister or the Australian Energy Market Commission under Chapter 9 of the National Gas Law (clause 26 of the National Gas Law)

  • statutory instruments made pursuant to the National Gas Law and clause 21 of schedule 2 to the National Gas Law

The Committee observes that these various documents when they apply in Victoria may not be ‘statutory provisions’ for the purposes of the Charter.

The Committee also notes that clause 20 of the National Gas Law provides that Schedule 2 to the National Gas Law applies to the National Gas Law and regulations and statutory instruments made under it. The Committee observes that Schedule 2 to the National Gas Law provides for rules on interpretation (clause 7 of Schedule 2 to the National Gas Law, requiring an interpretation that will ‘best achieve the purpose’ of the National Gas Law) and extrinsic material (clause 8 of Schedule 2 to the National Gas Law, setting out situations when consideration may be given to extrinsic material) that may be inconsistent with Charter ss.32(1) & 32(2).

The Committee is concerned that Charter s.32 may not apply to the National Gas (Victoria) Law, the National Gas (Victoria) Regulations and the National Gas Rules and statutory instruments made under those rules (as applied in Victoria.).

The Committee considers that any document given force of law by the Parliament should be subject to Charter s.32 unless Parliament makes an override declaration in accordance with Charter s.31.

The Committee therefore draws attention to clauses 7 and 8.

Privacy – Expression – Property – Fair hearing – Access to an energy resource – Whether reasonable limit

Charter s. 7(2) provides that human rights may be ‘subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society’.

The Committee notes that the National Gas Law provides for the regulation of third party access to an energy resource. The Committee observes that such legislation inevitably engages a variety of human rights, but that reasonable provisions will typically satisfy Charter s. 7(2), as well as internal limits on particular rights.

The Statement of Compatibility identifies several provisions of the National Gas Law that are said to engage the following Charter rights:

  • Privacy (Charter s. 13(a)): provisions for search warrants for things connected to a breach of the National Gas Law, Regulations or Rules (clause 35 of the National Gas Law).

  • Expression (Charter s. 15(2)): provisions for the Australian Energy Regulator to require a person to provide information required for the Australian Energy Regulator to exercise its function (clause 42 of the National Gas Law); criminalising the provision of false information to the Australian Energy Regulator (clause 60 of the National Gas Law); allowing the Australian Energy Regulator to order a person not to disclose information received during an access dispute (clause 200 of the National Gas Law); requiring persons summonsed before the Australian Energy Regulator to answer questions unless there is a reasonable excuse (clause 203 of the National Gas Law) and barring people associated with a website (the National Gas Services Bulletin Board) from disclosing information received for that website for purposes not connected with the website (clauses 227 & 228 of the National Gas Law).

  • Property (Charter s. 20): provisions for search warrants for things connected to a breach of the National Gas Law, Regulations or Rules (clause 35 of the National Gas Law).

  • Fair hearing (Charter s. 24(2)): provisions for private hearings on access to a pipeline unless both parties consent (clause 196 of the National Gas Law).

The Statement of Compatibility contends that these provisions (in the context of other protective provisions in the Act) do not infringe the above rights. Having considered the above Charter rights and 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 of the view that s.11 of the South Australian legislation which provides that parliamentary disallowance of regulations is excluded undermines the sovereignty of the Victorian Parliament, and other future template legislation should be handled as exposure drafts allowing sufficient opportunity for parliamentary scrutiny.

The Committee makes no further comment.

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Public Health and Wellbeing Bill 2008

Introduced: 7 May 2008
Second Reading Speech: 8 May 2008
House: Legislative Assembly
Member introducing Bill: Hon. Daniel Andrews MLA
Portfolio responsibility: Minister for Health


Purpose

The purpose of the proposed new principal Act (the ‘Act’) is to provide for a legislative scheme to protect and promote public health and wellbeing in Victoria. The Act repeals the Health Act 1958 and makes consequential amendments to other relevant Acts.

Glossary

CHO means ‘Chief Health Officer’

SMO means ‘Senior Medical Officer’

Public submissions invited

The Committee placed public notices in the Herald-Sun and The Age on Friday 16 May 2008 inviting persons and organisations to make written submissions to the Committee within its terms of reference by Wednesday 28 May 2008.

Depending on the content of any written submissions received the Committee may hold public hearings. The Committee may report on this Bill again in a future Alert Digest.

Content and Committee comment

[Clauses]

[2]. The Act is proposed to come into operation on proclamation but not later than by 1 January 2010.

Note: From the explanatory memorandum – The commencement period allows for the making of new regulations and for other necessary implementation measures.

Part 3 (sections 15 to 32) sets out the functions of the Secretary, the Chief Health Officer (CHO) and local councils in administering the Act.

[17]. Sets out the functions of the Secretary including establishing and maintaining a comprehensive information system of the health status of certain persons or classes of persons including the extent and effects of disease, illness and disability.

[19]. Provides a power of delegation for the Secretary by which the Secretary may delegate a power, duty or function of the Secretary under this or any other Act or under regulations under this or any other Act to the persons set out in the section.

[20 to 23]. There is to be appointed a Chief Health Officer (‘CHO’).

[24 to 28]. The Division sets out the functions of municipal Councils and makes provision for public health and wellbeing plans. The Division further sets out special powers available to the Secretary only during a “state of emergency” declared by the Minister. In that period, the Secretary may direct a Council or an officer of a Council to perform any function or duty, or exercise any power as directed by the Secretary.

[29 to 32]. The Division deals with environmental officers appointed by municipal Councils and by the Secretary.

Part 4 (sections 33 to 48) provides for consultative councils (experts and specials) established by Ministerial Order that may analyse and report on matters, inquire into specific areas of medical specialisation, monitor services, collect, publish and disseminate relevant information.

[39]. The Chairperson of a prescribed Consultative Council may request information from a health service provider or a pathology service.

The information requested by the Chairperson may be general or specific in nature and must be considered by the Chairperson to be necessary to the performance of the functions of the prescribed Consultative Council.

This clause provides that a health service provider or pathology service to which this section applies is authorised to provide the requested information.

Note: Section 227 provides protections to persons who give information they are authorised or required to give under this Act.

[40]. Provides for the mandatory notification by health service providers and pathology services of prescribed information to prescribed Consultative Councils established by the Minister. Regulations may be made to specify the manner, form and period in which a prescribed health service provider or prescribed pathology service must supply prescribed information to the Council. Failure to comply with the request is an offence that can result in a penalty of up to 10 penalty units.

Note: Section 227 provides protections to persons who give information they are authorised or required to give under this Act.

[41]. Provides that a prescribed Consultative Council may provide information to the bodies specified in this section if the Consultative Council determines that it is in the public interest to do so.

[42]. Sets out the confidentiality obligations applying to persons who are or have been members of a prescribed Consultative Council or its sub-committees, or have been employed or engaged or made available to a prescribed Consultative Council or its sub committees.

A person cannot be required to produce before any judicial officer or tribunal documents or information that is within the person's knowledge or control because of his or her relationship with the Consultative Council. Further it is not possible to apply for the documents or information through provisions of the Freedom of Information Act 1982.

The provisions of Part 5 and Health Privacy Principle 6 of the Health Records Act 2001 do not apply to information or documents with the effect that a person cannot seek health information held about him or her by a prescribed Consultative Council.

A Consultative Councils is able to include in documents information that does not identify individuals.

[43]. A person cannot be required to produce documents or copies of documents to a court, tribunal, board, agency or other person if the documents were created for the sole purpose of providing information to the prescribed Consultative Council and were provided to the prescribed Consultative Council by or on behalf of that person.

It is not possible to apply for the documents or information through the provisions of the Freedom of Information Act 1982 and Part 5 and Health Privacy Principle 6 of the Health Records Act 2001 do not apply to documents or information.

[44 to 48]. Are provisions applying to the Consultative Council on Obstetric and Paediatric Mortality and Morbidity (CCOPMM). The CCOPMM may require persons to report on and provide information concerning the birth and death of children.

Part 5 (sections 49 to 57) provides for a State Public Health and Wellbeing Plan.

[50 to 52]. Provides for the conduct by the Secretary of public inquiries into serious public health matters. The Minister has the power to direct the Secretary to conduct a public inquiry and the Secretary may appoint a suitably qualified person or panel of persons to conduct a public inquiry.

[55]. Authorises a person to provide information to the Secretary, the Chief Health Officer or an authorised officer if the person reasonably believes that the disclosure is necessary to assist the Secretary, the Chief Health Officer or the authorised officer to perform a function or duty or exercise a power under this Act or the regulations.

Note: Section 227 provides protections to persons who give information they are authorised or required to give under this Act.

Part 6 (sections 58 to 78) sets out the regulatory provisions administered by municipal Councils. For example performing duties in respect to the registration of certain premises, disposal of refuse, animals and remedying public nuisances.

[61]. Creates an offence to cause or knowingly allow a nuisance on any land owned or occupied by a person without a lawful excuse. (See comment below c.203).

[69]. A person must register certain business premises unless they are exempt from registration. (See comment below c.203).

Part 7 (sections 79 to 110) deals with specific regulatory provisions administered by the Secretary.

[79 to 98]. Cooling tower systems – The Division makes provision for the registration by the Secretary of cooling tower systems. The register containing details of the location of registered cooling tower systems must be available for inspection by members of the public during normal office hours. The Division also deals with cooling tower system risk management plans and the auditing requirements of such plans and the certification of, and the conduct of approved qualified auditors.

[99 to 110]. Pest control – Deals with pest control licences and makes it an offence for a natural person, in the course of the business of a pest control operator, to use any pesticide or class of pesticide without a pest control licence authorising him or her to use that pesticide or class of pesticides and provides exemptions from the offence provision for those using pesticides for the purposes specified, such as horticulture, agriculture, and the control of pest animals to protect an area that is not a commercial building or domestic premises. There are age restrictions applying to such licences.

Part 8 (sections 111 to 165) Management and control of infectious diseases, micro-organisms and medical conditions.

[113]. Examination and testing order – Permits the CHO to make an examination and testing order relating to a person who has, or has been exposed to, an infectious disease.

The clause sets out the grounds on which the CHO may take this action, which include that if the person has the disease, there is a serious risk to public health. It also sets out requirements for the form and content of the examination and testing order.

Detention of person – quarantine – isolation

If the person fails to undergo a specified examination or test, the person may be detained, in isolation if necessary given the nature of the disease, at a specified place for a period up to 72 hours for the purpose of testing and examination.

The examination and testing order may be subject to any conditions the CHO considers appropriate.

[115]. Obliges a registered medical practitioner who conducts an examination or test to provide the results to the CHO and to the person on whom the examination or test was conducted.

Note: Section 227 provides protections to persons who give information they are authorised or required to give under this Act.

[116]. Makes it an offence for a person to fail to comply with an examination and testing order.

Public Health Order – Obligations to receive treatment and supervision – Detention – Restrictions on movement, residence, behaviour and activity

[117]. The CHO may make a public health order (‘Order’) relating to a person who has, or has been exposed to, an infectious disease and sets out the grounds on which the CHO may take this action. An Order must not continue to have effect for a period greater than 6 months from the day it is made and must be proportionate to the risk that the person poses to public health.

A person subject to a public health order also has the right under section 45 of the VCAT Act 1998 to request the CHO to provide a written statement of reasons for the decision.

An order may impose a number of restrictions or obligations that a person subject to a public health order may be required to comply with. These range from participating in counselling, to undergoing assessment by a psychiatrist or neurologist, to refraining from carrying out specified activities or behaviour absolutely or unless specified conditions are complied with, refraining from visiting a specified place or class of place, residing at a specified place during specified times and informing the CHO of a change of residence, to submitting to the supervision of a nominated person, to receiving a specified treatment and to submitting to detention or detention and isolation as specified.

A person may be directed not to use public transport or attend school or work (either absolutely or unless stated conditions are observed) in order to minimise the person's contact with others.

[119]. The CHO may request a registered medical practitioner to provide information in relation to a person to the CHO for the purpose of making a decision about a public health order, the registered medical practitioner must provide that information in writing to the CHO as soon as is reasonably practicable.

Note: Section 227 provides protections to persons who give information they are authorised or required to give under this Act.

[120]. It is an offence for a person to fail to comply with a public health order.

[121 and 122]. A person subject to a public health order may apply to the CHO for an internal review of the order or an external review before the VCAT. Unless a stay is applied for and granted by VCAT the order will remain in force pending the outcome of the review.

Note: Discrimination against a person on the basis that they have an infectious disease is lawful under both the Equal Opportunity Act (Vic), section 80 and the Disability Discrimination Act 1992 (Cth), section 38.

Enforcement of order

[123]. An authorised officer who is a registered medical practitioner may enforce an examination and testing order or a public health order and may request the assistance of a member of the police force.

A requirement in an examination and testing orders or a public health order that a person undergo any examination, test, pharmacological treatment or prophylaxis cannot be enforced by the use of force.

The clause provides that a member of the police force may use reasonable force to detain the person subject to an order under this section and to take that person to a place where an examination or test is to be carried out, or to another place where the person is required to be under the order. The reasons why a person is arrested or detained under this section must be explained to the person arrested or detained.

The clause provides that if he or she believes it necessary to enforce an order under this Division, an authorised officer may apply to the Magistrates' Court for a warrant for the arrest of a person subject to the order. The warrant may specify any conditions to which it is subject.

[124]. No action lies against a registered health practitioner who in good faith and with reasonable care takes specified action in accordance with an order.

Note: Refer to section 85 Constitution Act 1975 statement and report at [240] below.

[125]. The CHO must facilitate any reasonable request for communication with others made by a person detained under an order.

Notifiable conditions – obligations to notify the Secretary of certain information

[126]. The Governor in Council may by Order declare an infectious disease or micro-organism to be a notifiable condition or notifiable micro-organism and sets out the details of notification that must be specified in the Order. An Order made under this provision is reviewable under Part 5 (Scrutiny, Suspension and Disallowance) of the Subordinate Legislation Act 1994 as though it was a ‘statutory rule’ within the meaning of that Act.

[127 to 130]. A registered medical practitioner, pathology service or laboratory must notify the Secretary of a notifiable condition and sets out the details that must be provided with the notification. Failure to comply with these requirements is an offence.

Note: A notifiable condition is defined in section 3 of the Act. Notifiable diseases and conditions will be prescribed in regulations.

HIV and other prescribed diseases (Division 4 – ss. 131 to 133)

[131 and 132]. Information to be provided prior to testing and post test counselling – A registered medical practitioner must not carry out on any person an HIV (or other prescribed disease) test unless the person has been given certain information prescribed by the regulations and also provides requirements relating to post-test counselling where positive tests are recorded for HIV and other prescribed diseases.

[133]. Court may be closed – Provides for the making of orders for the closure of a court or tribunal if the court or tribunal is satisfied that social or economic consequences to a person may follow the disclosure of information regarding HIV or other prescribed disease during court or tribunal proceedings.

[134]. Order for test where incident has occurred – The CHO may make an order for a person involved in a workplace incident to be tested for a specified infectious disease.

If it is necessary to enforce an order the CHO may apply to the Magistrates' Court for an order to authorise a member of the police force to use reasonable force to take the person named in the order to the place specified in the order; or restrain the person named in the order so as to enable a registered medical practitioner to take a sample of blood or urine; or take the person named in the order to the place specified in the order and restrain the person named in the order so as to enable a registered medical practitioner to take a sample of blood or urine.

The clause also provides for circumstances in which an order may be made when the person to be tested has died, or is unconscious or otherwise lacks capacity to consent to being tested.

Note: Orders made under this section are not a response to a serious risk to public health, but a response to a particular type of risk of infection to which caregivers and custodians may be exposed in the occupational setting.

[136]. Access and disclosure of information – Where an order is made under section 134 the CHO may examine relevant health information held by the Department in relation to that person. The CHO may also require a health service provider to provide to the CHO any relevant health information held by it in relation to that person.

The section provides that the CHO can only use the information obtained under this section for the purposes of the Division.

The clause outlines the conditions under which the CHO may disclose health information about a person obtained under this section to another person involved in an incident and limits the disclosure of identifying information about a person by another person to whom it has been provided for the purposes of this section.

Health information about a person obtained under this section is not admissible in any legal proceedings including a criminal prosecution.

[137]. Enables a Senior Medical Officer (‘SMO’) (as defined by the section) to make the same orders as under clause 134 with respect to an incident relating to the health service where the SMO is employed. However the enforcement provisions do not apply to section 137 (see ss. 134(3) and 134(4)).

[138]. Where testing occurs under section 134 the relevant person must be counselled by a registered medical practitioner.

[139]. A registered medical practitioner or pathologist who conducts a test under, or in relation to, an order or authorisation must communicate the results to the CHO or the SMO who ordered or authorised the test without delay.

On receiving the test results, CHO or senior medical officer must without delay give notice of the test results to the specified persons including the person tested.

Health information about a person obtained under this section is not admissible in any legal proceedings including a criminal prosecution.

[140]. A person receiving a test result under section 134 must not disclose information which would identify another person upon whom a test was performed.

[142] Immunity for actions performed in good faith – No action lies against a registered health practitioner who in good faith and with reasonable care takes a sample of blood or urine, or conducts a test in accordance with the Division or provides information about tests results or counselling authorised by the Division.

Note: Refer to section 85 Constitution Act 1975 statement and report at clause 240 below.

[144 to 149]. Division 7 of Part 8 concerns immunisation and requires parents of primary school children to provide an immunisation status certificate (‘ISC’) to the school in respect to vaccine-preventable diseases. An ISC may include a statutory declaration by the parent declaring that the child has been vaccinated against the vaccine-preventable disease.

Blood and tissue donations – Statutory defence – Immunity of donors

[150]. The Division declares that it applies to any legal action in tort, in contract, under statute or otherwise by or on behalf of a person who claims to have been infected with an infectious disease (being HIV, Hepatitis C or a prescribed disease) by donated blood or blood products made from donated blood, or by donated tissue. It provides a statutory defence in specified circumstances to any action commenced after this section comes into effect.

Note: The Statement of Compatibility provides – This division extends a scheme of statutory defences to actions brought on or on behalf of a person who claims to have been infected with HIV, hepatitis C or a prescribed disease because he or she was given blood, blood products or tissue donated by another person. The purpose of the division is to help maintain the viability of the Australian Red Cross Society and to encourage those who regularly donate or are considering donating blood in good faith to continue doing so.

[151]. Blood donations – Red Cross and other health services – statutory defence – Provides a defence in legal proceedings and sets out the circumstances in which the statutory defence is available (see Table 1 in the Schedule).

Note: The defence provides protection from legal liability to the Australian Red Cross Society and other health services, to those employed by them, and to registered health professionals that deal appropriately with donated blood for the benefit of the community.

[152]. Tissue donations – health services – statutory defence – Provides a defence in legal proceedings and sets out the circumstances in which the statutory defence is available (see Table 2 in the Schedule).

Note: The defence provides protection from legal liability for health services, registered medical practitioners and others that deal with donated tissue in the course of infertility treatment and other medical treatment.

[154 and 155]. No action lies against a donor for the transmission of an infectious disease to another person from his or her donation unless the donor has been prosecuted and found guilty of the offence of knowingly making a false statement on the donation form. It is an offence for a person to knowingly make a false statement in relation to his or her donation of blood or tissue.

Autopsies

[156]. Permits the CHO to order an autopsy to be conducted in circumstances where public health may be at risk or where a death was caused by an infectious disease. The CHO may order that a body to be transported to a particular registered medical practitioner. It is an offence for a person to fail to give possession of the body to a registered medical practitioner when directed to do so by the CHO.

[157]. The CHO must notify the senior next of kin of a person of a decision to perform an autopsy on that person. The senior next of kin may apply to the Supreme Court at any time within 48 hours after receiving notice for an order preventing the autopsy.

Brothels and escort agencies

[158 to 165]. The Division contains regulatory requirements for the control of infectious disease by proprietors of brothels and escort agencies and deals with the storage, use and disposal of condoms.

[160]. It is an offence for the proprietor of a brothel or an escort agency to require a sex worker to provide a service to a client if the sex worker has refused to provide the service because the sex worker suspects the client is infected with an infectious disease or because the client has refused to use a condom.

Part 9 (sections 166 to 186) Provides for authorised officers and for entry, search and seizure powers and search warrants.

[167]. An authorised officer may request a person to provide information in the course of an investigation where there is a risk to public health. A person is authorised by this section to provide the information requested.

Note: Section 227 provides protections to persons who give information they are authorised or required to give under this Act.

[168 to 170]. Deals with powers of entry either with consent of the occupier or with a search warrant issued by a court in accordance with the provisions and forms of the Magistrates’ Court Act 1989.

An authorised officer may enter a public place and, with the consent of the occupier, may enter other premises including residential premises, for this purpose.

[175]. Sets out the powers that may be exercised by an authorised officer who enters premises under powers conferred by this Act.

[176]. Provides on entry of premises by an authorised officer a power to direct a person to produce a document, operate equipment or answer questions. A person must comply unless they have a reasonable excuse. (See comment below c.203).

[183]. It is an offence to hinder or obstruct an authorised officer without a reasonable excuse. (See comment below c.203).

[185]. Permits a person to complain to the Secretary about the exercise of powers by authorised officers which must be investigated and a written report made to the complainant.

Part 10 (sections 187 to 204) – Protection and enforcement provisions (sections 187 to 204).

Entry without warrant to residential premises – Limited purpose entry

[187]. Declares that entry can only be to the part of the residential premises to which entry is necessary for the purposes for which the power is conferred.

[188]. The CHO may direct a person to provide information that the CHO believes is necessary to investigate a risk to public health or to manage or control a risk to public health. It is an offence for a person not to comply with a direction of the CHO. A person is not guilty of the offence if they had a reasonable excuse. Before directing a person the CHO must warn the person that refusal to comply is an offence, and that the person may refuse to provide any information that would tend to incriminate them. (See comment below c.203).

Note: Section 227 provides protections to persons who give information they are authorised or required to give under this Act.

[190 to 193]. Public health risk powers – Prescribes the public health risk powers that on the authority of the CHO may give to an authorised officer and may be given to a person either orally or in writing, including (amongst others) the power to close premises, require information to be given, search for and seize things, direct a person not to enter or remain at premises (in the first instance for up to 4 hours subsequently renewable up to 12 hours), provide name and address, require cleaning or disinfection, the destruction of things and to take action to eliminate or reduce risk to public health. Refusing to obey a direction without lawful excuse is an offence. (See comment below c.203).

Note: A requirement to give information is subject to the privilege against self-incrimination (see section 212).

[194]. The Secretary or a municipal council may issue an improvement notice requiring the person to remedy the contravention or likely contravention, or a prohibition notice prohibiting the carrying on of an activity in a specified way.

[196].The CHO, the Secretary or a Council may apply to the Magistrates' Court for an injunction compelling a person to comply with an improvement or prohibition notice or restraining a person from contravening an improvement notice.

[197]. Allows a person to be summoned to appear before a magistrate where an improvement or prohibition notice relating to a nuisance has been issued and the person fails to comply with the notice or where the nuisance although abated, is likely to recur.

197(7). A person who fails to comply with an order under subsection (4) is guilty of an offence unless the person satisfies the Magistrates' Court that the person has, in seeking to comply with the order, exercised due diligence.

Presumption of innocence – Reverse onus – defendant to show ‘due diligence’

The Committee observes that improvement or prohibition notices deal with protection against public health risks.

The Committee notes the provision provides a defence imposing on the defendant a legal burden to satisfy the Magistrates’ Court (on the balance of probabilities) that they had exercised due diligence in seeking to comply with the order.

The Committee notes these extracts from the Statement of Compatibility –

As knowledge of the measures the defendant has taken to comply with the order will be peculiarly within the defendant’s knowledge, it would be relatively easy for the defendant to prove, on the balance of probabilities, that he or she has exercised due diligence in seeking to comply with the order.……..

It is necessary to structure the offence in this way because evidence of the steps the defendant has taken to comply with the order will be in the possession of the defendant rather than the prosecution.

In the circumstances the Committee accepts the necessity to include a revers onus provision.

The Committee draws attention to the provision.

Emergency powers – Power to detain, prevent entry, restrict movement or give direction to a person in an emergency area

[198]. The Minister may, on the advice of the CHO and after consultation with the Co-ordinator in Chief and the State Co-ordinator under the Emergency Management Act 1986, declare a state of emergency arising out of circumstances causing a serious risk to public health.

The clause sets out requirements for the publication by the mass media and in the Government Gazette of the making, varying or revoking an emergency declaration. The declaration may be for a period of 4 weeks, and may be extended, but that the total period that a declaration is in force cannot exceed 6 months. It also sets out requirements for the reporting to a Parliament of the making of a declaration under this section.

[199]. During a state of emergency the CHO may authorise authorised officers to exercise any of the public health risk powers found in section 190 of this Act, or the emergency powers found in section 200, if the CHO believes that it is necessary to do so to eliminate or reduce a serious risk to public health.

[200]. Prescribes the emergency powers that may be exercised in an emergency and requirements regarding the exercise of emergency powers.

These powers enable authorised officers to detain persons in the emergency area, restrict the movement of persons within the emergency area, prevent persons from entering the emergency area and give any direction reasonably necessary to protect public health.

Authorised officers must explain, if practicable, the reasons for detention to the detained person. If a person is subject to detention under this section, an authorised officer must at least once every 24 hours review whether the continued detention of the person is reasonably necessary.

An authorised officer must give written notice to the CHO of a decision to detain a person, and a decision to continue to detain a person after reviewing the detention after 24 hours.

Rights and freedoms – Preventive detention authorised other than by judicial merits determination – Whether detention punitive or preventative in character – Whether justified and not a trespass on judicial powers

The Committee notes the provisions in sections 190 and 200 respectively allow for detention of persons at particular premises in specified circumstances involving risks to public health.

Section 190 allows for up to 12 hours detention upon direction by the Chief Health Officer and section 200 allows for longer periods where a state of emergency has been declared under section 198. The Committee also observes that in respect to detention in the latter case section 204 provides for compensation where powers are exercised on insufficient grounds.

The Committee observes that the provisions are exercised by executive authority without judicial involvement. Instances of such detention are of particular concern to the Committee in respect to the scrutiny of provisions under both the ‘rights and freedoms’ and Charter rights terms of reference. The Committee observes that there may be man special circumstances where preventative detention may be necessary. The Committee’s concern is to ensure that the detention is justifiable having regard to well defined clear public policy and that the measure is not punitive in character and is no more intrusive to liberty of the person and freedom of movement as is warranted in all the circumstances.

In this respect the Committee observes these extracts from judgments in two High Court cases.It is accepted that in some circumstances, it is valid to confer powers on both non-judicial and judicial bodies to authorise detention, for example, in cases of infectious disease or mental illness. These categories are not closed. (Per Callinan and Heydon JJ in Fardon v Attorney-General (Qld) (2004) 78 ALJR 1519 at 1561 at [214]).

‘The question whether a power to detain persons or to take them into custody is to be characterised as punitive in nature… depends upon whether those activities are reasonably capable of being seen as necessary for a legitimate non-punitive objective. The categories of non-punitive, involuntary detention are not closed’. (Per Gummow J in Kruger v The Commonwealth (1997) 190 CLR 1 at 162).

The question whether the preventative detention measures in section 190 and 200 are justifiable and proportionate to achieve a non-punitive objective is a question for Parliament’s consideration.

[203]. It is an offence for a person to fail to comply without reasonable excuse with a direction or other requirement of an authorised officer given or made in exercising powers under an authorisation given under section 199.

Presumption of innocence – Burden of proof - Defendant must provide reasonable excuse - Proof of evidentiary facts.

The Committee notes that a number of provisions in the Bill that create summary offences provide that the defendant bears an evidential burden to prove, on the balance of probabilities some evidential fact to raise an available excuse, exemption, exception or proviso (a defence) to the offence . The Committee observes that in such cases section 130 of the Magistrates’ Court Act 1989 applies. Once the excuse or other defence is raised the prosecution still bears the legal burden of disproving the defence and proving the elements of the offence beyond reasonable doubt.

The clauses in the Bill that raise this issue, the offence and excuse or exemption are –

61 Knowingly allow or suffer a nuisance to exist on any land owned or occupied by a person – without lawful excuse.

69 Failure to register premises – but not an exempt business.

176 Direct a person to produce a document, operate equipment, answer a question – without lawful excuse.

183 Hinder and obstruct an authorized officer – without reasonable excuse.

188 CHO may direct person to provide information necessary to investigate whether there is a risk to public health or to manage and control such risk – failure to do so without a reasonable excuse.

193 Failure to comply with a direction or requirement in the exercise of a public risk power under 190 – without reasonable excuse.

203 Failure to comply with a direction or requirement in the exercise of a power given under authorization under 199 – without reasonable excuse.

261 False and misleading statements without reasonable grounds for believing that at the time the information statement or document was given was true or was not misleading.

Compensation

[204]. Allows a person who suffers loss as a result of an authorisation by the CHO to an authorised officer to apply to the Secretary for compensation, if the person considers there were insufficient grounds for the giving of that authorisation.

An applicant may appeal to the VCAT for review of a decision made by the Secretary.

Part 11 (sections 205 to 239)General provisions – Reviews and appeals – Offences

[205]. Applies to decisions made by a municipal council regarding the registration of prescribed accommodation and business premises under sections 74 or 76 of the Act.

[206]. Applies to decisions made by the Secretary under section 94 in relation to approved auditors or under sections 101 and 105 in relation to pest control licences.

[207]. Sets out the right to apply to the VCAT for review of a decision made by a Council, or by the Secretary.

[208]. A persons served with an improvement or prohibition notice may appeal to the Magistrates' Court within 21 days.

[209]. The Secretary or a Council may serve an infringement notice on a person that the Secretary or Council has reason to believe has committed a prescribed offence. The provisions of the Infringements Act 2006 apply to such a notice.

[211]. It is an offence to destroy any records required to be kept under the Act.

Protection against self-incrimination preserved except in respect to the provision of documents

[212 and 213]. A natural person may refuse or fail to give information under this Act or the regulations if giving the information would tend to incriminate the person. This clause does not apply to the provision of a person's name and address, or to the production of documents that the person is required to keep under the Act or regulations and [213] Preserves legal professional privilege for the purposes of the Act or regulations.

Protection of persons giving information

[227]. Provides that the giving of information that is authorised or required to be given under the Act does not constitute unprofessional conduct or a breach of professional ethics and the giving of the information does not make the person giving it subject to any liability in respect of it, and does not constitute a contravention of any other Act or law, including common law.

[229 to 231]. Provides for action to be taken if a person fails to comply with a direction, requirement or notice given in the exercise of public health risk powers under section 190, or emergency powers under section 200 of the Act, or fails to comply with an improvement or prohibition notice issued in relation to a direction or other requirement given in the exercise of those powers. The CHO may authorise a person or Council to take any action necessary to ensure compliance with the direction, requirement or notice and provides for cost recovery by the Secretary or a Council if they have performed the action in the place of the person who has been directed to do so and has not complied. A Council may recover from an occupier any expenses incurred in the abatement of any nuisance.

[232 to 239]. Provides for the making of general or specific regulations (e.g. cooling towers and pest control) and fees to give effect to the various purposes of the Act.

Section 85 – Report to the Parliament pursuant to section 17(b) of the Parliamentary Committees Act 2003 concerning a repeal alteration or variation of section 85 of the Constitution Act 1975 (limitation of the jurisdiction of the Supreme Court)

[240]. Declares that it is the intention of the section to alter or vary section 85 of the Constitution Act 1975 to the extent necessary to prevent the bringing before the Supreme Court of an action of a kind referred to in section 124 or 142.

Note: These sections provide that no action lies against a registered medical practitioner who in good faith and with reasonable care conducts an activity ordered or authorised under an order or authorisation made by the Chief Health Officer or a senior medical officer. The clause establishes that the Supreme Court cannot hear such an action.

The Committee notes the section 85 statement in the Minister’s Second Reading Speech –

Section 124 provides that no action will lie against a registered medical practitioner who in good faith and with reasonable care conducts a test, examination and assessment, or provides counselling, pharmacological treatment or prophylaxis, in relation to an examination and testing order or a public health order made under Division 2 of Part 8 of the Act.

Division 2 deals with the management and control of infectious diseases, and empowers the chief health officer to order a person to undergo any of a range of measures to reduce the risk they may pose to public health. Often these measures, such as an examination or counselling about the nature of the disease, will be undertaken by a registered medical practitioner.

Similarly, section 142 provides that no action lies against a registered medical practitioner who in good faith and with reasonable care takes a blood or urine sample, conducts a test or provides test results or counselling in relation to a test on a person who has been involved in an incident with a caregiver or custodian. In relation to these incidents, the chief health officer may order that a test be conducted on a person who has refused to be tested, and a registered medical practitioner will be asked to perform the test and provide results.

The aim of sections 124 and 142 is to protect registered medical practitioners who implement measures ordered by the Chief Health Officer as part of the response to a threat to the health and wellbeing of the community. It is appropriate that registered medical practitioners be protected from legal liability for their actions in these circumstances. If registered medical practitioners were not provided with this protection, the regulatory framework for the protection of the public from infectious disease would not be effective.

Parliamentary Committees Act 2003, section 17(b) – provisions that alter or very section 85 of the Constitution Act 1975 – limitation of the jurisdiction of the Supreme Court’.

The Committee having reviewed the section 85 statement made in the Second Reading Speech, the declaratory and enabling clauses and the explanatory memorandum. The Committee is of the view that the proposed provision altering or varying section 85 of the Constitution Act 1975 is appropriate and desirable in all the circumstances.

[241]. Repeals, on proclamation, a number of redundant sections of the Health Act 1958 before the Act commences. [242]. Repeals the Health Act 1958 and provides necessary savings provisions.

[243 to 245]. Provides the transitional provisions in relation to Consultative Councils existing under the Health Act 1958 and that relevantly apply to blood and tissue donations and cooling tower systems registered under the Building Act 1993.

[250]. Amends section 22A of the Coroner's Act 1985 to provide that the Coroner must (rather than may as previously) notify the Consultative Council on Obstetric and Paediatric Mortality and Morbidity of the particulars of the death of a child reported to a coroner.

[261]. Amends the Food Act 1984 to make it an offence to give false or misleading information, statements or documents unless a reasonable grounds exist that at the time the information was given it was true or not misleading. (See comment under section 203).

[267]. Amends the VCAT Act 1998 and inserts a new Part16B relating to a review of a public health order made under the Act. The new Part allows the VCAT, where it considers that it is in the public interest to do so, to hold confidential proceedings in order to avoid the identification of any party to the proceedings. The VCAT may also withhold any information or evidence from a party if the withholding of information or evidence may prevent serious harm to the health of a party or any other person.

SCHEDULE

Contains Table 1 and Table 2 referred to in sections 151 and 152 of this Act respectively. The tables relate to legal actions and proceedings arising from blood and tissue donations.

Charter Report

People believed to have an infectious disease – People involved in an incident with a caregiver or custodian – People who may have died of an infectious disease – People in an area where a state of emergency has been declared – Equality – Non-consensual medical treatment – Movement – Privacy – Religion – Association – Families – Cultural Rights – Liberty

Part 2 of the Charter sets out people’s human rights, including:

  • Charter s. 8(2): ‘the right to enjoy his or her human rights without discrimination’. Discrimination includes discrimination on the basis of ‘impairment’, including the presence of organisms that can cause an infectious disease.

  • Charter s. 10(c): ‘a person must not be subjected to medical treatment without his or her full, free and informed consent.’

  • Charter s.12: ‘the right to move freely within Victoria’.

  • Charter s.13(a): ‘the right not to have his or her privacy unlawfully or arbitrarily interfered with’.

  • Charter s.14(2): ‘the freedom to demonstrate his or her religion or belief in practice as part of a community and in public’.

  • Charter s.16(2): ‘the right to freedom of association with others’.

  • Charter s.17: ‘families are entitled to be protected by the State’.

  • Charter s.19(1): ‘persons’ must not be denied the right, in community with other persons of their background, to enjoy his or her culture’.

  • Charter s.21(1): ‘the right to liberty and security’.

The Committee notes that various provisions of the Bill engage or limit a number of rights in relation to the following categories of people:

People believed to have an infectious disease

The Committee notes that clauses 113 and 117 provide for orders in relation to such people where they are believed to pose a serious risk to health and have (where practicable) been given information about the disease and risk:

  • Examination and testing order (clause 113): where the Chief Health Officer believes that the person is likely to transmit the disease and an order is necessary to ascertain whether the person has a disease, he or she can order the person to be examined or tested by a medical practitioner and, if the person doesn’t comply with the order, to be detained for up to 72 hours at a time.

  • Public health order (clause 117): where the Chief Health Officer believes that the person can prevent the disease from posing a serious risk to public health and an order is necessary to eliminate or reduce that risk, he or she can order the person to attend counselling; be psychiatrically assessed; refrain from particular acts, behaviour or locations, reside at a specified place at specified times; notify the Officer of changes in name or residence; and be the subject of specialised supervision, prophylaxis, pharmacological treatment and detention or isolation.

The Committee observes that clause 123(3) provides that force cannot be used to enforce an order for examination, testing, pharmacological treatment or the use of a prophylaxis, but that clause 123(4) provides that force can be used to move a person to a particular place required by an order (e.g. to detain someone or to ensure that they leave or remain at a particular place.)

The Committee considers that clauses 113 and 117 may engage the Charter rights of persons who are the subject of such orders against discrimination on the basis of physical impairment and non-consensual medical treatment, and to movement, privacy, freedom of religion, association, protection of families, cultural rights and liberty.

The Statement of Compatibility remarks:

These limitations are reasonable and demonstrably justified in a free and democratic society because of the importance of protecting the community from the spread of infectious disease; a person cannot be physically forced to receive medical treatment (broadly defined); and the maximum penalty that may be imposed on a person who fails to comply with an examination and testing order or a public health order is a fine rather than a term of imprisonment.

People involved in incidents with caregivers or custodians

The Committee also notes that clauses 134 & 137 provide for orders in relation to (defined) caregivers or custodians where an incident has occurred where any of those involved may transmit a specified infectious disease to any others involved, at least one person has consented to be tested for the disease and an order is necessary in the interest of rapid diagnosis, clinical management and treatment:

  • The Chief Health Officer may order a person who has been offered counselling and has refused to be tested for the disease to be tested to give a blood or urine sample at a specified place (clause 134(c)(i))

  • A magistrate may, on the application of the Chief Health Officer and if it finds that the circumstances are so exceptional as to justify it, authorise a police officer to use reasonable force to move the person to specified place and restrain him or her so that a medical practitioner can take a sample of blood or urine (clause 134(3))

  • The Chief Health Officer or a senior medical officer may order the testing of a person who is unconscious or lacks the capacity to consent (clauses 134(c)(ii) & 137(3))

The Committee considers that clauses 134 and 137 may engage the Charter rights of people who are the subject of an order against non-consensual medical treatment and to privacy and liberty.

The Statement of Compatibility remarks:

While the risk of acquiring HIV or hepatitis following occupational exposure to contaminated blood is low, such an incident may cause significant distress to the relevant person and his or her family. Knowing whether the person who was the source of the exposure (the source) has a specified infectious disease can minimise the anxiety of the exposed person as well as inform decisions about the person’s medical treatment. The purpose of this division is to provide a framework for obtaining information about whether the source has a specified infectious disease in those rare circumstances where that person is unable or refuses to be tested for a specified infectious disease.

A less restrictive means available to achieve the purpose would be to make it an offence for a person to fail to comply with an order but not enable the order to be enforced by use of reasonable force. However, this measure is considered inadequate because there may occasionally be people who refuse to comply with the order.

People who may have died of an infectious disease

The Committee further notes that clause 156 authorises an order for an autopsy if the Chief Health Officer believes a person may have died of an infectious disease and an autopsy is necessary to determine whether there is a serious risk to public health. The Committee considers that clause 156 may engage the Charter rights of the deceased and his or her family to privacy, freedom of religion and cultural rights.

The Statement of Compatibility remarks:

There is a direct and rational connection between the need for an autopsy in certain cases and the purpose of minimising or preventing the spread of an infectious disease. If the deceased’s family strongly objects to the conduct of an autopsy on the body the senior next of kin may apply for an order from the Supreme Court that the autopsy not be performed in the circumstances. In the context of autopsies performed under the Coroners Act 1985, the Supreme Court has attached considerable weight to the religious and cultural beliefs of the deceased person’s family.

The Committee observes that the autopsy may proceed before there is time to seek an order from the Supreme Court if the Chief Health Officer ‘believes that an autopsy must be performed immediately’.

People in an area where a state of emergency has been declared

The Committee additionally notes that clause 199 authorises the Chief Health Officer, where a state of emergency has been declared, to authorise authorised officers to exercise public health powers (a variety of actions to reduce a risk to public health at a premises) or emergency powers (a variety of actions to control the movement of persons in and out of an emergency area.) The Committee considers that clause 199 engages the Charter rights of people in an emergency area to movement, privacy, association, property, liberty and security.

The Statement of Compatibility remarks:

The purpose of the limitation is to control the movement of persons during a state of emergency which may help to contain the emergency. It may be necessary to exercise this power, for example, if there was an outbreak in a geographically confined area of a highly infectious disease that caused unusually severe illness in order to slow the spread of the disease.

The Committee observes that confining people in an area where there is an outbreak of a highly infectious disease may increase the risk that those people will be exposed to that disease.

The Committee considers that the compatibility of clauses 113, 117, 133, 137, 156 & 199 with the Charter may depend on whether or not they satisfy the test in Charter s. 7(2) that they are ‘such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom’ and, in particular, whether or not there is ‘any less restrictive means reasonably available to achieve’ the purpose of preventing serious risks to health.

The Committee refers to Parliament for its consideration the question of whether or not clauses 113, 117, 133, 137, 156 & 199 are the least restrictive means reasonably available to achieve the purpose of preventing serious risks to health.

Regulation of activities that may pose a health risk – Equality – Movement – Privacy – Expression – Property – Liberty – Presumption of innocence – Whether reasonable limits

Charter s.7(2) provides that human rights may be ‘subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society’.

The Committee notes that the Bill regulates activities that may pose a health risk. The Committee observes that the regulation of activities inevitably engages a variety of human rights, but that reasonable provisions will typically satisfy Charter s.7(2), as well as internal limits on particular rights.

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

  • Equality (Charter s. 8): provisions barring persons under 16 from having a pest control licence and requiring persons under 18 who are given a pest control licence to be supervised by a licence-holder over 18 (clause 101(3)(a) & 103(1)(d))

  • Freedom of movement & liberty (Charter ss.12 & 21(1)): a provision authorising authorised officers to direct people to or from a premises for a time not exceeding four hours to investigate or ameliorate a risk to public health (clause 190(1)(b))

  • Privacy (Charter s. 13(a)): provisions:

    • barring people from causing nuisances that are dangerous to health or noxious or injurious to personal comfort (clause 61); and requiring local councils to remedy such nuisances, including by entry to unoccupied land or land whether the owner can o barring people from causing nuisances that are dangerous to health or noxious or injurious to personal comfort (clause 61); and requiring local councils to remedy such nuisances, including by entry to unoccupied land or land whether the owner can’t be located (clauses 60 & 66)

    • requiring people conducting prescribed businesses that pose a risk to public health to register their premises with a local council and supply information about the premises to the council (clauses 69 & 71)

    • requiring applicants to register a cooling tower or for a pest control licence to supply information required or prescribed by the Secretary to the Department of Human Services (clauses 81(2) & 101(1))

    • requiring authorised officers to show their identity cards when exercising a power (clause 166)

    • authorising authorised officers to ask questions necessary to investigate a public health risk after informing the person asked that they aren’t required to answer; and to enter public places or premises with the consent of the occupier (clauses 167 & 168)

    • authorising authorised officers to enter any premises where necessary to investigate or ameliorate an immediate risk to public health; any premises where used for specified businesses at any reasonable hour in the daytime or any time when the premises are open to the public; and any premises with a search warrant for the purpose of monitoring compliance with the Act or regulations; and to exercise a variety of powers including search, seizure and directing persons on the premises to provide information (clauses 168, 169, 175 & 176)

    • requiring people to provide information that the Chief Health Officer or anyone authorised by that Officer believes is necessary to investigate or manage a risk to public health (clauses 188(1), 190(1)(d) & 190(1)(e))

    • authorising authorised officers to inspect any premises where a risk to public health may be spread (clause 190(1)(f))

    • authorising authorised officers to enter relevant land to ensure compliance with a requirement that a person has failed to comply with (clause 229(4)(a))

  • Expression (Charter s.15(2)): provisions:

    • requiring people conducting prescribed businesses that pose a risk to public health to supply information about the premises to their local council (clause 71)

    • requiring applicants and holders of cooling tower registration to notify the Secretary to the Department of Human Services of information and changes to that information (clauses 81, 87 & 88)

    • requiring holders of pest control licences to maintain prescribed records (clause 108) requiring brothel proprietors and escort agency proprietors to provide information about sexually transmitted infections to sex workers and clients (clause 162)

    • requiring people on premises entered by authorised officers without consent to answer questions unless they have a reasonable excuse (clause 176(2))

    • barring people from impersonating authorised officers (clause 184)

    • requiring people to provide information that the Chief Health Officer or anyone authorised by that Officer believes is necessary to investigate or manage a risk to public health (clauses 188(1), 190(1)(d) & 190(1)(e))

    • barring people from providing false information to the Secretary to the Department of Human Services, the Chief Health Officer or an authorised officer or damaging records required under the Act or regulations (clauses 210, 211 & 261, substituting s. 59 and inserting a new section 59A into the Food Act 1984)

  • Property (Charter s. 20): provisions authorising authorised officers to seize property and to destroy it in some circumstances (clauses 175(d), 178(1), 179(2), 181 & 182); to direct people to or from a premises for a time not exceeding four hours to investigate or ameliorate a risk to public health (clause 190(1)(b)); and to recover costs or enter land when a person has failed to comply with an order (clauses 228, 229 & 261, inserting a new section 59C into the Food Act 1984)

  • Presumption of innocence (Charter s. 25(1)): provisions placing a burden of proof on people charged with failing to comply with an order to ameliorate a nuisance to satisfy the court that they exercised due diligence (clause 197(7)); and on people charged with giving false information to prove that they reasonably believed that the information was not misleading (clauses 210(3) & 261, substituting s. 59(3) of the Food Act 1984)

  • Self-incrimination (Charter s. 25(2)(k)): a provision exempting documents and a person’s name and address from the privilege against self-incrimination (clause 212(2))

The Statement of Compatibility contends that these provisions (in the context of other protective provisions in the Act) do not infringe the rights to privacy, expression, property or self-incrimination and are reasonable limits on the rights to equality, movement, liberty and the presumption of innocence. Having considered the above Charter rights and provisions, the Committee is satisfied, with the exception of the regulation of activities in brothels and by escorts, discussed below, that the measures so engaged do not warrant any special mention or adverse comment in respect to possible incompatibility with human rights.

Activities in brothels and by escorts – Activities in brothels and by escorts – Ban on display or use of medical examinations of sex workers – Whether compatible with freedom of expression – Ban on sex workers being required to perform services in particular circumstances – Entry without warrant – Whether compatible with right to privacy

Charter s. 13(a) provides that everyone ‘has the right not to have his or her privacy unlawfully or arbitrarily interfered with’. Charter s. 15(2) provides that everyone has the ‘right to freedom of expression which includes the freedom to seek, receive and impart information of all kinds.’

The Committee notes that Division 10 of Part 8 regulates brothels and escort agencies as follows. The Committee observes that activities in brothels and by escorts are intimate activities and attract a high degree of stigma and embarrassment. The Committee considers that these provisions may engage the Charter rights of sex workers and clients to privacy. The Committee feels that, in this context, three of the provisions of the bill raise concerns:

  • Clause 160, which bars proprietors from requiring sex workers to provide services to clients who are suspected of having an infectious disease or who refuse to wear a condom: Whilst the Committee appreciates the beneficial purpose of this clause, the Committee is concerned that a provision barring proprietors from requiring sex workers to provide services to clients in certain narrow circumstances (punishable by a fine) may be misunderstood as implying that it is ever lawful for sex workers to ever be required to engage in sexual activities with clients. The Committee observes that any such conduct by employers of sex workers may constitute a sexual offence under Division 8A of Part 1 of the Crimes Act 1958.

  • Clause 161, which requires proprietors to take reasonable steps to prevent the display or use of evidence of a medical examination of a sex worker to induce a client to believe that a sex worker is free from an infectious disease: The Committee considers that this provision engages the right of sex workers and clients to freedom of expression. The Committee observes that the statement of compatibility does not address the compatibility of clause 161 with Charter s. 15(2).

  • Clause 169(1)(e), empowering authorised officers to enter brothels without warrant at any reasonable hour in the daytime and at any time such premises are open to the public to ensure compliance with the Bill: The Committee observes that Division 10 of Part 8 of the Bill requires brothel proprietors to comply with a number of requirements, including encouraging condom use and providing condoms, health information, clean linen and towels, and working baths and showers. The Committee is concerned that the entry without warrant of authorised officers to ensure compliance with these requirements may expose sex workers and clients to a significant and distressing interference with their privacy.

The Committee draws attention to clause 160 and refers to Parliament for its consideration the question of whether or not clauses 161 & 169(1)(e) is compatible with the Charter rights of sex workers and clients to privacy and expression.

Regulation of information about health risks – Privacy – Expression – Fair hearing – Whether reasonable limits

Charter s. 7(2) provides that human rights may be ‘subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society’.

The Committee notes that the Bill regulates information about health risks. The Committee observes that the regulation of information inevitably engages a variety of human rights, but that reasonable provisions will typically satisfy Charter s. 7(2), as well as internal limits on particular rights.

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

  • Privacy (Charter s. 13(a)): provisions:

    • giving the Secretary to the Department of Human Services a function of maintaining an information system of ‘the health status of persons and classes of persons in Victoria’

    • authorising the chair of a Consultative Council to disclose information obtained to other Consultative Councils; and to specified people ‘in the public interest’; and to collect information and to require a health service provider or pathology service to provide information (clauses 37(1), 38(2)(h), 39, 40 & 41(1))

    • preventing the disclosure of information held by Consultative Councils to the public, including to people to whom the information relates (clauses 42 & 43)

    • requiring information about a child’s death or a birth to be given to the Consultative Council on Obstetric and Paediatric Mortality and Morbidity; and to maintain the data for research purposes (clauses 46(1)(c), 47 & 48)

    • requiring the publication of the report of a public inquiry into a serious public health matter ordered by the Secretary to the Department of Human Services (clause 52(2))

    • authorising anyone to disclose information to authorised department officers for the purposes of the Act (clause 55)

    • authorising the Secretary to the Department of Human Services to disclose information for health purposes to Australian governments and statutory bodies pursuant to gazetted agreements (clause 56)

    • authorising the sharing of information between the Department and the Consultative Councils for the purposes of the Act (clause 57)

    • requiring medical practitioners to supply information to the Chief Health Officer relating to people who are the subject of examination and testing orders and public health orders (clauses 115 & 119)

    • requiring medical practitioners and pathology services to notify the Secretary to the Department of Human Services of ‘notifiable’ infectious diseases and micro-organisms in a patient (clauses 127 & 128)

    • authorising the Chief Health Officer to require a health service provider to reveal information about a caregiver or custodian who may have been exposed to an infectious disease (clause 136(1)(b))

    • requiring parents of a child to notify any primary school the child attends of that child’s immunisation status (clause 145)

    • conditioning a statutory immunity from civil liability with respect to blood an and tissue donations on the taking of information from donors using a form approved by the Secretary to the Department of Human Services (clauses 151, 152 and the schedule, Table 1, items 2 & 3, column 2(b)(i) & (c)(i) & Table 2, item 1, column 2(a)(i) & (c)(i))

    • requiring the Registrar of Births, Deaths and Marriages and the coroner to notify the Consultative Council on Obstetric and Paediatric Mortality and Morbidity about certain deaths (clauses 247(3)(b) & (d), amending s. 49B of the Births, Deaths and Marriages Registration Act 1996; and 250, inserting a new section 22A into the Coroners Act 1985)

  • Expression (Charter s. 15(2)): provisions:

    • preventing the disclosure of information held by Consultative Councils to the public, including to people to whom the information relates (clauses 42 &

    • authorising a convenor of a public inquiry into a serious public health matter ordered by the Secretary to the Department of Human Services to compel people to give evidence (clause 51(2));

    • requiring medical practitioners to supply information to the Chief Health Officer relating to people who are the subject of examination and testing orders and public health orders (clauses 115 & 119)

    • requiring medical practitioners and pathology services to notify the Secretary to the Department of Human Services of ‘notifiable’ infectious diseases and micro-organisms in a patient (clauses 127 & 128)

    • requiring proprietors of food premises and vending machines where tests have found micro-organisms in food to provide the Secretary to the Department of Human Services with details specified in regulations (clause 130(5))

    • requiring the provision of information to a patient before a HIV test is performed and before the results are given (clauses 131 & 132)

    • requiring health service providers and people who perform tests to provide the Chief Health Officer with information about a caregiver or custodian who may have been exposed to an infectious disease, and barring the release of the identity of such a person (clauses 136(2), 139 & 140)

    • requiring parents of a child to notify any primary school the child attends of that child’s immunisation status (clause 145)

  • Fair hearing (Charter s. 24): a provision enabling courts or tribunals to close or suppress proceedings relating to any prescribed disease due to the consequences of disclosure to any person (clause 133); and suppressing proceedings in the Victorian Civil and Administrative Tribunal relating to a public health order unless the Tribunal orders otherwise (clause 267, inserting a new clause 66G into Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998)

The Statement of Compatibility contends that these provisions (in the context of other protective provisions in the Act) do not infringe the above rights. Having considered the above Charter rights and provisions, the Committee is satisfied, with the exception of questions for prospective blood and tissue donors, discussed below, that the measures so engaged do not warrant any special mention or adverse comment in respect to possible incompatibility with human rights.

Information from prospective blood and tissue donors – Questioning prospective blood donors about the sexual activity – Whether discrimination on the basis of sexual orientation

Charter s. 8(2) provides that everyone has ‘the right to enjoy his or her human rights without discrimination’. Discrimination includes discrimination on the basis of sexual orientation. Charter s. 13(a) provides that everyone ‘has the right not to have his or her privacy unlawfully or arbitrarily interfered with’.

The Committee notes that clauses 151 & 152, in combination with the schedule, effectively require prospective blood and tissue donors (other than semen donors) to supply information in accordance with an approved form published in the Government Gazette. The Committee also notes that clause 155(1) makes it a criminal offence, punishable by imprisonment, to make a false statement in this context. The Committee further notes that clause 242(2) continues the effect of the form currently used for this purpose under Division 7 of Part VI of the Health Act 1958.

The Committee understands that donors are currently asked whether they have engaged in male-to-male sexual activity in the proceeding twelve months. The Committee therefore considers that clauses 151 and 152, in combination with the schedule and clause 242(2), may engage the rights of gay and bisexual male prospective donors to equal enjoyment of their Charter right to privacy without discrimination on the basis of their sexual orientation.

The Statement of Compatibility remarks:

The statement is the first step in a two step screening process of blood donors (the second step is the testing of a sample of the donor’s blood.) It is not sufficient to rely on testing alone because:

  • infection with some contaminants involves a window period…

  • of the possibility of new variants of known viruses developing…

  • of the possibility of human error in carrying out the tests…

  • tests are not always 100 per cent effective…

Requiring people who wish to donate blood or tissue to provide the information that is needed to assess the risk of their blood or tissue being contaminated is reasonable in all the circumstances…

The Statement does not address the specific question concerning male-to-male sexual activity. The Committee observes that male-to-male sexual activity can transmit infectious diseases and that gay and bisexual men may have a higher rate of infection by HIV and other diseases than other groups. The Committee also observes that the current question does not distinguish between safe and unsafe sexual activity and between monogamous and non-monogamous activities.

The Committee refers to Parliament for its consideration the question of whether or not clauses 151 and 152, in combination with the schedule and clause 242(2), are compatible with the Charter right of gay and bisexual male prospective blood and tissue donors to equal enjoyment of their right to privacy without discrimination on the basis of sexuality.

The Committee makes no further comment.

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State Taxation Acts Amendment Bill 2008

Introduced: 6 May 2008
Second Reading Speech: 7 May 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 provide for —

  • increased thresholds for general duty and principal place of residence and pensioner concessions;

  • removal of the need for an election between the principal place of residence concession and the first home owner bonus;

  • further duty exemptions;

  • greater certainty in relation to the calculation of duty for properties that are sold off the plan;

  • clarity in respect of the exemption relating to certain transactions concerning dutiable property that is subject to a unit trust scheme.

The First Home Owner Grant Act 2000 is amended to give an additional grant to first homebuyers purchasing a newly constructed home in regional Victoria.

The Land Tax Act 2005 is amended to provide —

  • threshold increases, including raising the tax free threshold from $225,000 to $250,000 for 2009 and onwards (and from a tax free threshold of $20,000 to $25,000 for lands held by trusts);

  • a rate reduction in the top rate of land tax from 2.5% to 2.25% for 2009 onwards;

  • an exemption for property used as long term shared supported accommodation for young people with disabilities. This includes a provision that special land tax will apply if the land subsequently ceases to be used for the exempt purpose as is consistent with existing similar exemptions.

The Payroll Tax Act 2007 is amended to —

  • reduce the rate of tax applicable from 1 July 2008;

  • clarify the exemption for non-profit organisations;

  • modify the grouping provisions;

  • make some technical amendments to the provisions dealing with payroll tax registration and the calculation of annual payroll tax.

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill come into operation on the day after Royal Assent or before 1 January 2009.

[28]. Provides for the automatic repeal of this Act on 1 January 2010.

Charter Report

Equality before the law – Privacy – Expression – Property rights – Adjustment and administration of taxation laws – Whether reasonable limit

Charter s. 7(2) provides that human rights may be ‘subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society’.

The Committee notes that the Bill provides for the adjustment and administration of taxation laws.

The Committee observes that such legislation inevitably engages a variety of human rights, but that reasonable provisions will typically satisfy Charter s. 7(2), as well as internal limits on particular rights.

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

  • Equality (Charter s.8): provisions providing more favourable treatment to disabled persons and pensioners (clauses 8, 10 & 18, inserting new section 38A into and amending ss. 59, 60 & 60A of the Duties Act 2000; and inserting new section 76A into the Land Tax Act 2005.) The Statement of Compatibility also refers to benefits to regional Victorians; however, living in regional or metropolitan Victoria is not an attribute for the purposes of discrimination under the Charter.

  • Privacy, freedom of expression and property rights (Charter ss.13(a), 15(2) & 20): various provisions requiring people to provide information or documents to the Commissioner of State Revenue for the purposes of calculating taxation liabilities or benefits (clauses 3, 4, 6 & 18, amending s. 21, inserting new section 21D and amending s. 32V of the Duties Act 2000; and inserting a new section 78A into the Land Tax Act 2005)

The Statement of Compatibility contends that these provisions (in the context of other protective provisions in the Act) do not infringe the rights to privacy, expression and property and are reasonable limits on the right to equality. Having considered the above Charter rights and 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.

The Committee makes no further comment.

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Scrutiny of Acts and Regulations Committee
Parliament of Victoria