Scrutiny of Acts and Regulations Committee

Alert Digest No 7 of 2008

Tuesday, 10 June 2008

[Table of Contents]


Courts Legislation Amendment (Juries and Other Matters) Bill 2008

Introduced: 27 May 2008
Second Reading Speech: 29 May 2008
House: Legislative Assembly
Member introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibility: Attorney-General


Purpose

The Bill amends the —

  • Constitution Act 1975 with respect to the recognition for pension purposes of certain prior service of persons appointed as judges of the Supreme Court;

  • Juries Act 2000 in relation to the powers of the Juries Commissioner, the remuneration and allowances for jury service and investigations by jurors; and

  • Magistrates' Court Act 1989 in relation to persons who may witness statements to be tendered in committal proceedings.

Note: The amendments in 2003 to the Constitution Act 1975 inadvertently disadvantaged judges appointed to the Supreme Court of Victoria from the County Court of Victoria by not recognising previously existing pension entitlements.

Content and Committee comment

[Clauses]

Juries Act 2000

[4]. Inserts new subsections (4B), (4C) and (4D) into section 29. New subsection (4B) places beyond doubt the power of the Juries Commissioner to exclude a person from a pool from which a panel will be chosen if the Juries Commissioner is satisfied that the person is unavailable to sit on a trial due to the likely length of the trial.

[6]. Amends the Act to permit the Juries Commissioner to receive from past or present jurors issues or complaints concerning the deliberations of a jury or the disclosure of information about those deliberations. If the complaint is made after a trial, the Juries Commissioner must refer it to Victoria Police for investigation.

[7]. Jury or panel member not to make unauthorised inquiries relating to a trial – Inserts new sections 78A, 78B and 78C to prohibit investigations by panel members and jurors.

New section 78A(1) provides that a panel member or juror for any criminal or civil trial must not make an enquiry for the purpose of obtaining information about a party, or any matter relevant to the trial, except in the proper exercise of his or her functions as a juror. The provision includes a penalty of 120 penalty units for a breach.

New section 78A(3) provides that a juror is not prevented from making an enquiry of the court or another member of the jury as long as it is within the proper exercise of his or her functions as a juror. It also provides that a juror is not prevented from making an enquiry authorised by the trial judge.

New section 78A(5) provides that the making of an enquiry includes consulting with any person, conducting any research, viewing or inspecting any place or object which has any relevance to the trial, conducting an experiment and requesting any other person to make an enquiry.

New section 78B enables a judge to examine on oath a person who is on a panel for a trial or a juror in a trial to determine whether the person has engaged in conduct that may contravene section 78A(1).

Privilege against self-incrimination – use limitation – New section 78C provides that a person is not excused from complying with a requirement to give evidence under section 78B on the ground of self-incrimination in relation to an offence against section 78A. It also provides that any evidence given by the person is not admissible in evidence against the juror in criminal proceedings in relation to an offence against section 78A.

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

The Committee makes no further comment.

Return to the Table of Contents


Crimes (Controlled Operations) Amendment Bill 2008

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


Purpose

The Bill amends the Crimes (Controlled Operations) Act 2004 (the ‘Act’) to repeal provisions relating to the Australian Crime Commission and to make consequential amendments to the Major Crime Legislation (Office of Police Integrity) Act 2004.

The purpose of the Bill is set out in the Statement of Compatibility –

The Bill removes all references to the Australian Crime Commission (ACC) and the Commonwealth Ombudsman from relevant definitions in section 3 of the Crimes (Controlled Operations) Act 2004 (the Act).

The Bill also makes consequential amendments to the Act and to the Major Crime Legislation (Office of Police Integrity) Act 2004.

The underlying purpose of the Bill is to remove a constitutional impediment to the Act commencing operation.

The Bill will enable, as an interim measure, the implementation of the controlled operations regime in Victoria, and will enable Victorian law enforcement agencies to conduct controlled operations under the regime contained in the Act.

In due course, if and when the Commonwealth Parliament amends its own controlled operations legislation, the Victorian government proposes to introduce complementary and constitutionally valid amendments enabling the ACC to avail itself of the Victorian controlled operations regime.

Content and Committee comment

[Clauses]

[2]. The Act, except for Part 2, comes into effect on the day after the day on which the Act receives the Royal Assent. Part 2 comes into operation on a day or days to be proclaimed.

Note: The reason for this two stage approach is to amend the amendments to the Act to be made by the Major Crime Legislation (Office of Police Integrity) Act 2004, prior to proclamation of that Act and the Principal Act.

[9]. Provides for the automatic repeal of this amending Bill on the first anniversary of its commencement.

The Committee makes no further comment.

Return to the Table of Contents


Melbourne Cricket Ground Amendment Bill 2008

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


Purpose

The purpose of the Bill is to amend the Melbourne Cricket Ground Act 1933 to facilitate the proposed widening of the southern concourse of the Melbourne Cricket Ground from Gate 1 to light tower 4.

The Bill permanently reserves the stratum in the Crown Allotment as part of the site for the Melbourne Cricket Ground under the Crown Land (Reserves) Act 1978 and deems the relevant stratum to be part of the land reserved as the Ground under the Order in Council dated 20 February 1934.

Note: From the explanatory memorandum – To avoid doubt, the Bill removes any right of way in relation to any stratum in the Crown Allotment that is or is being used as a road. There are, however, no known rights of way in relation to the stratum.

Content and Committee comment

[Clauses]

[3]. Inserts a new section 11F into the Melbourne Cricket Ground Act 1933 which provides for a stratum to be added to the MCG.

[4]. Provides for the automatic repeal of this amending Act on the first anniversary of its commencement.

The Committee makes no further comment.

Return to the Table of Contents


Unclaimed Money Bill 2008

Introduced: 27 May 2008
Second Reading Speech: 29 May 2008
House: Legislative Assembly
Member introducing Bill: Hon. Tim Holding MLA
Portfolio responsibility: Minister for Finance


Purpose

The purpose of the Act is to re-enact with amendments the law relating to unclaimed money so as to continue to provide for —

  • the collection and safekeeping of unclaimed money and unclaimed superannuation benefits;

  • the collection of information needed to identify and locate the owner of unclaimed money;

  • the keeping of registers of details (including business registers, the unclaimed money register and the register of unclaimed superannuation benefits) relating to unclaimed money and unclaimed superannuation benefits so that the owner can be identified and located;

  • the publication of sufficient information for the purposes of identifying and locating the owner of unclaimed money and unclaimed superannuation benefits;

  • the payment, into the Consolidated Fund, of money paid into Court which is unclaimed;

The Bill will repeal the Unclaimed Moneys Act 1962.

Note: The object of this Bill is to safeguard and collect unclaimed money and to ensure the rightful owners of such money can be identified and located. Unclaimed money includes money paid into court, general unclaimed money such as share dividends, salaries and wages, rent and bonds, debentures and interest and unpresented cheques and unclaimed superannuation benefits.

Content and Committee comment

[Clauses]

Presumption of innocence – onus to provide evidentiary facts to found a defence – Clauses 17 to 19 and 70(6)

[17]. Creates an offence where a person fails to make entries, without reasonable excuse, in the business register as required under section 11(1). A reasonable excuse may include an honest and reasonable mistake, or circumstances which are beyond the control of a business including fires, flood or natural disasters, key personnel not being available due to sudden resignation, illness or death, or computer malfunction.

[18]. Creates an offence where a business fails, without reasonable excuse, to make payment and lodge returns to the Registrar as required under section 12(1). A reasonable excuse may include an honest and reasonable mistake, or circumstances which are beyond the control of a business including fires, flood or natural disasters, key personnel not being available due to sudden resignation, illness or death, or computer malfunction.

[19]. Creates an offence where a trustee fails, without reasonable excuse, to comply with their obligations under section 14(1) of the Bill. A reasonable excuse may include an honest and reasonable mistake, or circumstances which are beyond the control of a business including fires, flood or natural disasters, key personnel not being available due to sudden resignation, illness or death, or computer malfunction.

Part 4 of the Bill outlines the Registrar's obligations and powers in respect of unclaimed money.

Presumption of innocence – Evidentiary burden on defendant

[26]. Provides that if a body corporate contravenes a provision of the Bill, a person who is concerned in, or takes part in, the management of the body corporate is deemed to have contravened the same provision.

A person will not be deemed to have contravened the provision if they can point to evidence in the proceeding, which shows any of the following matters —

  • the person did not know the body corporate had contravened the provision;

  • the person was not in a position to influence the conduct of the body corporate in relation to its contravention of the provision; or

  • the person used all due diligence to prevent the contravention of the provision by the body corporate.

Note: From the explanatory memorandum – If a person can point to evidence of these matters, the Registrar will be required to disprove that evidence beyond reasonable doubt.

The persons who are considered to be concerned in, or take part in, the management of a body corporate for the purpose of this clause are —

  • a director of a body corporate;

  • a secretary of a body corporate;

  • a receiver or manager of property of the body corporate;

  • an official manager or deputy official manager of a body corporate;

  • a liquidator of a body corporate appointed in a voluntary winding up of the body corporate;

  • a trustee or other person administering a compromise or arrangement between the body corporate and another person or persons. [Refer to Charter Report below].

[33]. An owner of unclaimed money may apply to the Registrar for payment of unclaimed money that has been paid to the Registrar by a business or trustee (sections 12 and 14). The Registrar may pay the unclaimed money to the applicant, if the Registrar is satisfied that the person is the owner of the money. The applicant bears the onus of establishing that they are the owner of the unclaimed money.

[59]. Provides for the right of review or appeal by a business or trustee dissatisfied with the Registrar's determination of their objection or the Registrar's failure to determine their objection by requesting that the matter be referred to the VCAT or be treated as an appeal to be set down for hearing by the Court.

[70]. Sets out the powers of entry, search and inspection for the purposes of an authorised investigation. These include powers to inspect premises, require a person to produce a document, operate a device to produce a document, retain a document and, require a person to answer questions and give reasonable assistance to an authorised officer.

Subclause (6) creates an offence where a person hinders or obstructs, or without reasonable excuse fails to reasonably co-operate with an authorised officer carrying out an authorised investigation, or answers a question with an answer he or she knows is false or misleading.

Presumption of innocence - clauses 17, 18, 19, and 70(6) – Onus to present evidentiary facts of a reasonable excuse

The Committee notes these extracts from the Statement of Compatibility –

The relevant clauses require the defendant to point to evidence that he or she had a reasonable excuse for failing to comply with particular provisions in the Bill. This may limit the right to be presumed innocent if the effect of the defence is that, in the absence of any evidence of reasonable excuse, a person can be convicted without the prosecution proving all the elements of the offence in the usual way. The limitation will only apply where a defendant is charged with an offence under clauses 17, 18, 19 and 70(6).

In addition, when evidence of reasonable excuse is adduced the prosecution will have the burden of disproving the matters raised beyond reasonable doubt. In this respect, the nature and extent of the limitation are confined.

In the circumstances the Committee accepts the desirability to include a reverse onus provision for the defendant to establish evidentiary facts on the balance of probabilities.

Privilege against self-incrimination – use limitations

[74]. Provides protection against self-incrimination.

A person may refuse or fail to give information, produce documents or answer questions that the person is required to give, produce or answer under the investigations provisions if giving the information, producing the documents or answering the questions would tend to incriminate the person.

The provision however does not excuse a person from giving information, producing documents or answering questions that the person is required to give, produce or answer on the ground that giving the information, producing the documents or answering the questions would tend to incriminate the person in respect of an offence against this Bill.

Information given, documents produced or questions answered by a person as required by the investigation provisions of this Bill are not admissible in evidence against the person in any proceeding in respect of an offence against this Bill.

Charter Report

Presumption of innocence – Individual liability for offences committed by entities he or she is involved in managing – 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. 25(1) provides that everyone has the ‘right to be presumed innocent until proved guilty according to law.’

The Committee notes that clause 26 provides that various defined people concerned in the management of a body corporate that has contravened a provision of the Act are ‘taken to have contravened the same provision.’ The Committee also notes that the Bill includes provisions for a variety of criminal offences relating to the failure to meet statutory obligations relating to unclaimed money. The Committee further notes that clause 27 provides that, where a partnership or unincorporated offence is guilty of an offence, all members of the partnership or management committee are guilty. The Committee observes that, in contrast to other statutory presumptions that typically appear in regulatory legislation, these presumptions attribute liability to one individual for the acts of another. The Committee considers that clauses 26 and 27 therefore engage the Charter right of people concerned in the management of a body corporate, partnership or unincorporated association to be presumed innocent of a criminal offence.

The Committee further notes that clause 26(2) provides that the prosecution must still prove such an individual’s actual guilt if the individual ‘gives evidence in the proceeding’ that he or she had no knowledge, influence or ability to stop the corporation’s contravention. The Committee observes that this is less burdensome than a requirement to prove these matters and that the House of Lords held in Attorney-General’s Reference No 4 of 2004 [2005] 1 AC 264, [54] that an evidential burden is acceptable where a person’s liability is presumed based on his or her involvement in an organisation. However, the Committee observes that the requirement to ‘give’ evidence is more onerous than a requirement to satisfy an evidential burden, which only requires the defendant to ‘point to’ evidence (e.g. including the prosecution’s evidence about the entity’s breach, while may, of its nature, suggest that a particular individual knew nothing about it.) The Committee notes that the explanatory memorandum to clause 26(2) refers to the ability of an individual to ‘point to’ evidence, but that language does not appear in the actual clause.

The Committee additionally notes that clause 27 provides no equivalent defence for members of partnerships or unincorporated associations (whereas a defence of due diligence is provided for in other statutes, e.g. s. 99 of the Rail Safety Act 2004.)

The Statement of Compatibility remarks, in relation to clause 26:

This provision is necessary so that a person cannot avoid liability behind the corporate veil. The matters which indicate a person should not be convicted are principally in the knowledge of the defendant. Therefore, it is reasonable that they adduce evidence which puts these matters in issue.

The Statement of Compatibility does not address clause 27.

The Committee refers to Parliament for its consideration the questions of whether or not:

  • clauses 26 or 27 limit the right of managers of bodies corporate and members of partnerships and management committees of unincorporated associations to be presumed innocent of offences in relation to unclaimed money committed by those entities

  • clause 26, in light of its exception for when an individual ‘gives evidence’ distancing himself or herself from the offence, is a reasonable limit on the Charter right of people involved in the management of bodies corporate to be presumed innocent according to the test in Charter s7(2)

  • clause 27, which makes members absolutely liable for all offences committed by their partnership or unincorporated association, is a reasonable limit on the Charter right of those members to be presumed innocent according to the test in Charter s7(2)

The Committee makes no further comment.

Return to the Table of Contents


Wildlife Amendment (Marine Mammals) Bill 2008

Introduced: 28 May 2008
Second Reading Speech: 29 May 2008
House: Legislative Assembly
Member introducing Bill: Hon. Peter Batchelor MLA
Responsible Minister: Hon. Gavin Jennings MLC
Portfolio responsibility: Minister for Environment and Climate Change


Purpose

This Bill amends the Wildlife Act 1975 (the ‘Act’) to further provide for permits as to whale watching tours and whale swim tours, and provide for seal tour permits.

Content and Committee comment

[Clauses]

[2]. Provides that the Bill other than clauses (3(1), 22 and 30 come into operation on the day after Royal Assent. The remaining clauses come into operation on proclamation but not later than by 1 December 2009.

Note: The delayed commencement of the specified clauses is to allow sufficient time for the making of new regulations arising from the changes to be effected by these clauses.

Presumption of innocence – defendant to establish reasonable excuse

[25]. Amends section 81 of the Act by inserting subsections (3) to (9).

New subsection (3)(a) provides that an authorised officer may direct a person not to approach a whale at a distance which is less than 500 metres from the whale or any lesser distance specified by the authorised officer and new subsection (3)(b) provides that an authorised officer may direct a person to move away from a whale by up to 500 metres from the whale or any lesser distance specified by the authorised officer. New subsections (4)(a) and (4)(b) mirror subsections (3)(a) and (3)(b) except that they apply to operators of vessels. New subsection (6) provides that it is an offence if a person fails to comply with a direction of an authorised officer given under subsections (3) or (4) unless the person has a reasonable excuse for not doing so.

Presumption of innocence – evidentiary onus to establish reasonable excuse

The Committee notes that the defence of reasonable excuse may require an accused person to present or point to evidence which raises a reasonable possibility that they have a reasonable excuse, in accordance with section 130 of the Magistrates’ Court Act 1989. Whether or not a person has such an excuse will generally be a matter peculiarly within the knowledge of the accused and that in the absence of a requirement for an accused to point to facts relating to a reasonable excuse, it would be difficult for a prosecuting authority to investigate and prove the absence of any reasonable excuse.

The Committee accepts the regulatory offence requiring a defendant to show reasonable excuse is acceptable.

[36]. Provides for the automatic repeal of the Bill on 1 December 2010.

The Committee makes no further comment.

Return to the Table of Contents


Scrutiny of Acts and Regulations Committee
Parliament of Victoria