Wednesday, 9 March 2022

Puffing Billy Railway Bill 2022

Statement of compatibility

Mr PAKULA (Keysborough—Minister for Industry Support and Recovery, Minister for Trade, Minister for Business Precincts, Minister for Tourism, Sport and Major Events, Minister for Racing) (10:41): In accordance with the Charter of Human Rights and Responsibilities Act 2006 I table a statement of compatibility in relation to the Puffing Billy Railway Bill 2022.

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (the Charter), I make this Statement of Compatibility with respect to the Puffing Billy Railway Bill 2022 (the Bill).

In my opinion, the Bill, as introduced to the Legislative Assembly, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.

Overview

The Bill is an important part of the government’s efforts to improve and modernise the governance framework of the Puffing Billy Railway. The Bill:

Repeals the ETR Act and establishes the Puffing Billy Railway Act 2022 as a new principal Act.

Introduces a framework that supports the Bill’s principal objective to provide for the ongoing management and sustainability of the iconic Railway.

Changes the name of the ETRB to the Puffing Billy Railway Board (PBRB).

Introduces contemporary corporate governance reporting mechanisms that align with modern standards and are appropriate for operating the Railway in a contemporary tourism environment.

Updates the functions of the PBRB and outlines clear objectives relevant to the operation of the Railway as a state significant tourism attraction.

Provides that the persons appointed to the PBRB are directors rather than members, to remove any ambiguity with members of the Society.

Transitions the PBRB with an emphasis on a skills-based directorship, conferring the power to appoint directors to the Governor in Council on the recommendation of the Minister.

Permits the making of regulations with respect to a broad range of matters relating to the day-to-day operation and management of the Railway.

Human Rights Issues

The Bill engages the right to recognition and equality before the law (section 8).

For the following reasons, I am satisfied that the Bill is compatible with the Charter and, if any rights are limited, those limitations are reasonable and demonstrably justified having regard to the factors in section 7(2) of the Charter.

Temporary limitations on eligibility for appointment to the Puffing Billy Railway Board

The Bill limits eligibility for appointment to the Puffing Billy Railway Board to exclude those who in the previous 12 months were elected to any position in the Puffing Billy Preservation Society (the Society). While this is a very minor limitation (as persons within the affected cohort become eligible after 12 months of ending their involvement with the Society) it is arguable that this infringes that cohort’s rights to equality before the law.

To the extent this infringes the right of that cohort to equality before the law, I consider this limitation to be reasonable and justified because:

The limitation is temporary. People subject to the limitation become eligible after 12 months regardless of previous affiliation with the Society;

The Bill’s object of a new, modern governance framework is advanced by the clear separation between the new framework and its predecessor.

THE HON MARTIN PAKULA MP

Minister for Tourism, Sport and Major Events

Second reading

Mr PAKULA (Keysborough—Minister for Industry Support and Recovery, Minister for Trade, Minister for Business Precincts, Minister for Tourism, Sport and Major Events, Minister for Racing) (10:41): I move:

That this bill be now read a second time.

I ask that my second-reading speech be incorporated into Hansard.

Incorporated speech as follows:

The Puffing Billy Railway is Australia’s premier preserved steam railway that operates between Belgrave and Gembrook in Victoria’s Dandenong Ranges. The Railway opened for heritage operations in 1962 and has evolved from a small regional tourist railway into a state significant tourism attraction, with a strong international profile.

In 1977, the Victorian Government established the Emerald Tourist Railway Board as a statutory authority under the Emerald Tourist Railway Act 1977. Under this Act, the ETRB is responsible for the preservation, development, promotion, operation and maintenance of the Railway and carrying out other related operations which are consistent with the operation of the Railway as a major tourist attraction.

The ETRB and the governance structure established under the Emerald Tourist Railway Act 1977 have come under scrutiny in recent years. In June 2018, the Victorian Ombudsman released her report ‘Investigation into child sex offender Robert Whitehead’s involvement with Puffing Billy and other railway bodies’. The report identified significant failings in the governance of the ETRB, a poor legislative framework under the Emerald Tourist Railway Act with respect to managing conflicts of interest and inappropriate board and management composition, which had enabled the Executive Committee of the Puffing Billy Preservation Society to control the ETRB. The Ombudsman concluded that governance failings of the ETRB, which included the Society’s position of control, had facilitated Robert Whitehead’s offending.

The Society was established in 1955, with the key objective to preserve the Railway and its historical assets for future generations. The Society continues to operate today, with over 1,000 current members. Many of these members volunteer on the Railway and their contribution is critical to the sustained operations of the Railway by driving locomotives, preserving trains and track maintenance.

Among several recommendations, the Ombudsman recommended review of the current structure and composition of the ETRB, and the governance issues associated with its relationship with the Society. The findings and recommendations from this review have informed many provisions in this Bill.

The Emerald Tourist Railway Act is not a suitable framework to provide for the contemporary operations of the Railway. A replacement Act with modernised provisions has been developed, which more effectively supports the contemporary operations of the Railway in the context of a state significant tourism attraction.

The Bill supports the future growth and sustainability of the Railway, which it weighs with the need to recognise the heritage significance of the Railway, the significance of its volunteers and its importance to local communities. These purposes are important for the Railway to remain a significant demand driver for the state and retain its status as a heritage attraction that supports local communities.

The Bill changes the name of the ETRB to the Puffing Billy Railway Board to align with the more commonly known name of the Railway. The current name presents unnecessary confusion to consumers who use the Railway.

The Bill introduces modern corporate governance reporting mechanisms that support the ongoing management and sustainability of the Railway in a contemporary tourism environment. Key provisions of the Bill include to enshrine the requirement to develop strategic plans and business plans, enhance the circumstances with which the PBRB reports to the Minister and empower the Minister to make written directions and request particular information. These reforms deliver an improved corporate government framework that overcomes the reporting deficiencies present in the Emerald Tourist Railway Act. They also support the Victorian Government to achieve the findings from the Ombudsman’s report.

The Bill introduces a comprehensively altered board management framework that aligns with modern standards and further supports the Victorian Government’s commitment to implement the findings from the Ombudsman’s report. The Puffing Billy Railway Board will transition to a skills-based directorship, with the skills reflective of the contemporary needs of the Railway. All appointments will be made by the Governor in Council on the recommendation of the Minister. This approach removes the Society’s capacity to make nominations.

The Bill also introduces restrictions on the Society with respect to holding directorship on the PBRB, including prohibiting a person who holds or held an elected position at the Society within the preceding 12 months from holding directorship and limiting the number of non-elected Society members who can hold directorship to two current or former members who concluded their membership within the preceding 12 months. These restrictions are intended to improve separation between the PBRB and the Society and future proof the Puffing Billy Railway Board from being controlled by the Society. However, the Bill allows limited representation from non-elected Society members in recognition that they are not associated with the Society’s decision-making branch and could provide valuable skills and expertise to the Puffing Billy Railway Board given their involvement with heritage and tourist railways.

The Bill introduces a more comprehensive list of functions and objectives that recognise the broader and more diverse operations of the Railway as it has evolved into a state significant tourism attraction. The Emerald Tourist Railway Act provides a relatively outdated list, which is no longer sustainable to support the current operations of the Railway.

I commend the Bill to the house.

Ms McLEISH (Eildon) (10:42): I move:

That the debate be adjourned.

Motion agreed to and debate adjourned.

Mr PAKULA (Keysborough—Minister for Industry Support and Recovery, Minister for Trade, Minister for Business Precincts, Minister for Tourism, Sport and Major Events, Minister for Racing) (10:42): I move:

That debate be adjourned for 13 days.

Ms McLEISH (Eildon) (10:42): I wish to advise that the opposition will be opposing this adjournment of 13 days. There are a couple of reasons why we will be opposing this, and of course this will be of no surprise to the government. Last week when they tried to pull a swiftie—I guess it was not the same sort of swiftie this week; we did have some forewarning—we had to put considerable effort into the debate about why we should be given 14 days and not 13 days. We had a look. It was pretty easy to work out. This week has a pretty skinny business program. There are only two bills up there, and if it was not for yesterday having the Victoria Police Amendment Bill 2022 I think the government would have been in a little bit of strife, trying to work out how to fill their time, because they have clearly not put the effort and the planning into what is required to have a good, solid business program for the parliamentary week.

Now, we have the forms of the house, which are 14 days adjournment for all of these bills, and as I have said, we also have the other issue of the government not getting their act together in time. So there are forms, traditions and customs, and there are reasons for those forms. Fourteen days allows the opposition time to do the appropriate amount of scrutiny. We have to, once we receive a bill, go out to the stakeholders and get their opinion. First of all, doing that—getting a list of stakeholders and then expecting them to be able to come back with a review of the legislation in a couple of days—is just not on. They cannot do it. Often they have to convene meetings, they have to bring people together, and most importantly they have to understand what the issues are in the bill. They need to work out what gremlins there are and how it may impact their sector or their organisation.

In this case we have had today one bill out of three that is for 13 days, and that limits particularly the time that I have as a shadow minister to seek feedback. It is not unusual, when we go to seek feedback and request it for the middle of the next week, for them to come back and say, ‘Listen, we actually haven’t been able to do that just yet; we need a few more days’. We can come to Parliament and know that perhaps we will have to have a different position in the upper house, which is when we will get all of the information available. It is not just us that needs the time, it is the communities that are impacted and affected by the legislation that is on the table.

I think the minister who has put this forward knows too well the reasons why we need 14 days. He knows that he has broken the traditions and the customs and the history of Parliament by putting us and the Parliament in this position. Just because they are not organised does not mean that they should show such disrespect to the opposition and to the people and to those that have an interest in the Puffing Billy Railway. Let me tell you—and I know the minister knows this—there are lots of people and lots of divided opinions on the Puffing Billy Railway, and there will be people that are very keen to make sure that I understand all the issues. I myself need to make sure that I understand all the issues. The bill is a little bit thicker than I expected. So it is going to take me that little bit longer to actually scrutinise it, but I know that the government also are not keen on scrutiny. They do not like the appropriate levels of scrutiny to be put into place or to occur.

We can see they have got form on this. We had the pandemic management legislation that was introduced. We barely had the bill before we were supposed to have a position on it, let alone to have even read it. There were bill briefings immediately, and then we were expected to vote on it. We did not have the time to do that legislation or to give it the due diligence that it required. That is unlike yesterday, when we had the Victoria Police Amendment Bill 2022. We would have liked to have had that a little bit quicker than the night before. But we were engaged and spoken to, and we understood why that bill needed to have a fast passage through Parliament. We were given the explanations. Clearly it was out there in the public domain, but we knew why it needed to be pretty well debated forthwith and moved through the Parliament to fix an anomaly. We know, and we are cooperative when it matters. But when we have got a 13-day adjournment because the government just simply has not got their act together, it is a blight on the government and laziness, and it goes to their inability to take things as seriously as they should.

Mr CARBINES (Ivanhoe—Minister for Child Protection and Family Services, Minister for Disability, Ageing and Carers) (10:47): I am pleased to make a contribution on the procedural debate and the significance and importance of the bill before the house and in particular the opportunity to proceed with this bill within the time that has been put down as suggested by the government. I want to also commend the former Minister for Tourism and Major Events, the member for Lara, for work that he has led and overseen—this has in large part brought these matters to the house for its attention—and the Victorian Ombudsman and their investigation of an iconic organisation that provides great tourist value and great importance historically to our Victorian community.

We all have our memories and our experiences of the Puffing Billy Railway, and other generations in our families that we have taken to have that experience, but sadly there is also a dark history to the oversight and the obligations of those who were entrusted to manage that organisation—and sadly that has led to much of the corporate governance and the other matters that are outlined in the bill and put to the house and that we feel need urgent attention and action.

To see that those matters are being delayed—or are being sought to be delayed—and held up by those opposite is a disappointment. We will deal with that, but they are not, as previous speakers have said, somehow being done to avoid scrutiny or being done in a swift or slapdash way. We are here in the Parliament before the people seeking to take action in response to the dark history and the elements that require greater accountability, protection and support. As Minister for Child Protection and Family Services, I certainly have a very clear understanding of the importance of making sure that those entrusted to run organisations that involve volunteers and young people need to meet a very high standard. That standard was failed by those in the preservation society and the work that was outlined by the Victorian Ombudsman’s report in relation to Puffing Billy and what went on there in the past.

That aside, there has obviously been a lot of very important history—something to be protected, to be preserved—but it requires blowing a few of the cobwebs and dust off and saying, ‘Well, there’s a greater expectation in the 21st century about the way in which these organisations are managed and run’. That is the substance of the bill. It is important that these matters are dealt with swiftly—and these matters have been well canvassed in the community. These are not matters that have come to this house without a very significant and long period of public debate, also with integrity bodies having given great weight and consideration to the investigation of these matters. That is what has brought the legislation before the house. That is why it is important that the legislation is debated and has the opportunity to be given effect in law to provide greater protections, obligations and transparency in the way in which a very significant, iconic and historic tourist railway and facility is operated in our state and also to give greater comfort, support and protections to those who will be either users or volunteers or engaged in the way in which that service is run. So there is a great opportunity for these matters to be canvassed. The sooner we can get on with doing that the better it will be for all Victorians, and the sooner we give effect to many of the very significant recommendations by the integrity bodies in relation to the running of the Puffing Billy Railway and its associated entities the better.

Can I say further that much has been made about conventions in this place, and the government will not be lectured to about the conventions and forms in this house or in this Parliament by those opposite. I remind those opposite that when it comes to conventions in particular we will take just one example of those in the other place—Mr Ondarchie and Mr Finn—who, having given a commitment around pairing, chose to go back on those commitments and those arrangements. That those conventions were broken, smashed to smithereens, in the other place, reflects very poorly on those opposite when it comes to the conventions and forms of the Parliament. So we will not be lectured to about the way in which conventions operated in this place by those opposite, who have failed to uphold those conventions in the past. We will not be lectured to by them on the way in which the forms of this house operate. I commend— (Time expired)

Mr D O’BRIEN (Gippsland South) (10:52): It is important that the house upholds the conventions and forms that it is used to operating under, and I find it somewhat perplexing that the minister who has just completed his answer has said that we did not uphold those in the other place so we do not have the opportunity to lecture, when the government is doing exactly the same and abusing the forms and conventions of the house. These forms, conventions, traditions, customs that we would normally have 14 days to consider any piece of legislation are not just there for tradition. We do not just do it because we think it is a nice idea and has been done for 150 years. We do it for very good reasons. We give the Parliament the opportunity to fully understand, to interrogate and to research any piece of legislation that comes forward—and not just the Parliament, as the member for Eildon said, but the community as well. It is critically important with any piece of legislation that we actually are given the appropriate amount of time, and over the years that has been settled as 14 days to give the Parliament and the people of Victoria the opportunity to really understand what any piece of legislation is about.

I think it is an important matter of respect for the Parliament. As I consider this motion, I think of a number of words: respect, inclusiveness, consultation. These are things that the government talks a lot about—it talks a lot about them in the broader scheme of things in our society, but when it comes to actually delivering them in the chamber we do not see that. I am very happy to acknowledge that whether we get 13 days or 14 days is not the biggest thing in the world. It is not the thing that is going to change many Victorians’ lives. But the problem is that if we give an inch on this, we know the government will take a mile, and we need to ensure that the traditions and conventions are upheld, because they are there for that good reason that I talked about earlier.

We have seen the government do this on a number of occasions. When it has something that it wants to be dealt with quickly it will abuse the conventions, forms and respect of the house. The member for Eildon also mentioned the pandemic legislation. It was in and done in literally three days through this chamber, and we did not have any time to consider it properly. Now, that was nothing like the Puffing Billy Railway legislation. It was far more significant and affected every single Victorian, and yet the government rammed it through. I remember sitting here listening to the Leader of the House comment that that bill had undergone ‘extensive consultation’. What she meant was that she had spoken to three members of the upper house, and they thought that they had the deal done. It was rushed through here so it could then be rushed through to the other place, and then all of a sudden the disrespect that the government had given to the Parliament came back to bite them when they realised that those three votes were not enough and indeed they did have to go back to undertake further consultation. So it is treating the Parliament with contempt, and it is an important part of our system.

The government, the executive, has significant power. It can pretty much do what it wants in this chamber, by definition. It has the numbers. That is why it is the government. But it is also the role of the opposition to ensure that it holds the government to account. Some might say, ‘Oh, it’s one day; what does it matter?’. Well, it actually does matter. It matters in making sure that the government does not just bully its way around using its numbers, and it is important that the community has that time to have its say.

I note on this bill in particular—I do not know a lot about the bill, obviously; we have only just seen it—this is a railway, an activity, that involves a lot of volunteers. This is not some sort of taxation legislation where those in the community who are interested in it will be well-resourced corporations, well-resourced industry associations, unions and the like, who have people to go through this. We are actually dealing with a whole lot of volunteers. I note further, briefly having had a look at the second-reading speech, this is in response to an Ombudsman’s report from 2018. It is four years since that Ombudsman’s report was handed down, and either the government has delayed and it can wait one extra day or it has botched this and wants to now rush it through. It does not stack up. So I do oppose the adjournment of this bill for only 13 days. It should be 14. The government knows our position on this, we have been very consistent with it and it does need to stop treating the Parliament with disrespect.

Mr CHEESEMAN (South Barwon) (10:57): I rise to speak very briefly on this particular matter. I think it is fair to say that this Parliament and this government have had a huge number of challenges on their plate responding to those global challenges of COVID-19, and we have been busy putting in place the appropriate mechanisms and arrangements to help protect the livelihoods and indeed the health and safety of every single Victorian. Puffing Billy, this particular railway, has already been canvassed—a well-loved, significant piece of tourism infrastructure of this state—and many of us have real, lived experiences with respect to Puffing Billy. Of course it has been a loved organisation that has been an important driver for Victoria’s tourism economy.

But also we know that Puffing Billy has been subject over the years to some pretty dark history. That dark history has been exposed through various government processes, and the issues associated with that have been very well ventilated and have been well known for a significant period of time. We now have the freedom and the opportunity to move to putting in place the appropriate governance arrangements around Puffing Billy to deal with those issues that were so well ventilated back in 2018 and even prior to that. So in doing that I very much wish to see this particular bill move its way through this chamber in a speedy way to ensure that we do put in place those appropriate arrangements going forward.

I commend the hard work of the Minister for Tourism, Sport and Major Events with respect to this. We do see the Victorian economy opening up again. We see those tourism opportunities again before our community. It is important that Puffing Billy can play a significant role in our tourism economy going forward, and that is why it is important that we put this bill through. Issues have been well and truly canvassed over the last few years. I commend the speedy passage of this, and that is why I would like to see this dealt with in the next sitting week. I commend this to the house.

Ms STALEY (Ripon) (11:00): Thank you, Acting Speaker McCurdy. It is great to see you in the chair. I rise to speak on the procedural motion to adjourn the Puffing Billy Railway Bill 2022 for 13 days instead of 14 days. The government speakers on this motion have been erratic and confused. The Minister for Disability, Ageing and Carers attempted to make a case for urgency based on the fact that there were serious issues and it was time to do it, but then the member for South Barwon got up and said these issues have been very well ventilated. In other words his argument was, ‘Well, we can go early because there’s nothing new to see here, because of course the original report was 2018’. So it has taken the government four years to bring this legislation to the Parliament, and then when it does it wants to once again crash through the convention of 14 days and only give the Bill 13 days.

The only reason we are here doing a 13-day, not 14-day, debate is that the government’s legislative agenda has collapsed and they cannot manage their parliamentary program. We saw this in the government business program debate, where we only had two bills on the government business program because the bill that they wanted to bring on, which is the taxation bill, their latest new tax, has been shelved for the time being. So now we have got nothing in reserve again. This is a government flying by the seat of its pants as it hobbles towards the election. I think I have mixed my metaphors there. They have got no legislative agenda of any note, and they cannot get their act together to give the normal 14 days on their legislative agenda.

This particular bill really needs the 14 days because of the scope of the stakeholders. Puffing Billy is a much-loved Victorian institution. It does have volunteer stakeholders, it has the businesses along the line—it has a lot of stakeholders that need to have their voices heard on this specific response to the Ombudsman’s report. It is all very well to say that the issues have been well ventilated over four years, but this bill has not been well ventilated for four years. All of these people for whom Puffing Billy is so iconic and so important—and in many cases so economically important to the region—have not seen this bill. They have not had an opportunity to have a look and say, ‘Well, is it actually doing the things that it says it’s going to do? Is it responding properly to the concerns raised in the Ombudsman’s report?’. These are serious questions.

You would think after four years the government would not be giving 13 days; it would be giving several weeks or several months. They would not even need to do the two-week adjournment, they could go further, because either they are getting a response right to what was a terrible failure of governance or they are not getting it right. The fact that they are trying to slam it through in 13 days instead of 14 days suggests to me that they might have some concerns about their response and they do not want the issues raised in here to be fully ventilated. The member for South Barwon does say that they have been well ventilated, but the government’s response has not been, because this bill is now only going to be exhibited for 13 days, breaking the conventions of the house again.

I also note that early on in this debate the member for South Barwon interjected—and I appreciate that it is disorderly to take up the interjection even minutes after it was made; however, I will not resist—and asked us to table Hansard, because we of course had this debate last sitting week. Now, the fact that we had this debate last sitting week should suggest to the government that every time they attempt to mess with this convention we will debate it out and we will divide on it, because it is no good. They just cannot continue this ridiculous idea that the parliamentary history and traditions do not matter. Once again, I agree with the member for Gippsland South; this is not the biggest issue for Victorians. But the constant erosion of parliamentary traditions and democracy is.

Mr TAYLOR (Bayswater) (11:05): I often get asked by constituents and family and friends what the life of a—

The ACTING SPEAKER (Mr McCurdy): Sorry, Member for Bayswater, you need to seek leave.

Leave refused.

Ms SHEED (Shepparton) (11:05):(By leave) I have to say it is with some disappointment that I rise today to speak on this motion to adjourn for 13 days, and while it does seem somewhat trivial and is perhaps not the crux of the issue, I suppose to some extent we are here to lecture the government, and that is because a lecture is needed. We had to do it two weeks ago, and we are here again today having to do it. It is not about the issue of the 13 days; it is about the erosion of many of the aspects of the way that this house operates, and I think it is very important that we preserve a lot of the mores of this house.

It is a reasonable time to expect there to be 14 days for a bill to be given to the house and for members to be able to take the opportunity to go back to their constituents in relation to it. I have spoken before on many of these issues. Every Tuesday I rise to seek leave to move a motion to debate the issue of reintroducing a non-government business program. If we had a non-government business program in this house, we would not have the government struggling to find issues to put before this house, to find bills to put before this house in what is the last year before the election. We on this side have plenty of issues that we want to put before the house. We have private members bills that we would like to bring before this house. We have motions that we would like to have debated before this house, but we cannot do it because we have no non-government business program.

This erosion I am talking about comes down to things like consideration in detail of bills. This house, this Legislative Assembly, has had so many of its roles stripped away over time. I daresay there are many members in this house who would not know how consideration in detail operates. They have no idea. The last time a significant consideration in detail took place was on the assisted dying legislation in the previous Parliament, and that was an outstanding example of this house becoming involved in an extremely important issue that they had plenty of time to take back to their constituents to get feedback on, to ask the minister about who sat at that table. The Minister for Health at that time sat at that table day and night continuously while that debate continued, and ultimately the bill was done. It was an outstanding example of leadership from a minister who did the job that needed to be done. We do not see that happening in this house, and yet the ministers are here in this house—very few in the other place, and yet that is where consideration in detail takes place. That is where amendments get moved. We have turned this Legislative Assembly into the only Legislative Assembly in this country that does not have a non-government business program, that does not follow the traditions that have been with us for over 150 years—and that is leading to greater and greater denigration and, quite frankly, affecting the culture of this place.

I think it is fair to say that there has been a change in culture over time, and it is partly as a result of this chipping away at what really matters. I only have a little bit of time left, and I want to say that it is time that we reviewed the whole operation of this house. It is not good enough that we continue in this way. Everyone in this house on both sides needs to fully represent their communities and have the opportunity to do so. It is important, and I think it is on the government to do something about creating a committee. We have not had a meeting of the Standing Orders Committee that has been meaningful—maybe two during this Parliament. It is an important committee. I do not think it is the one to do it. We need a committee that will look at how this house is operating—like New Zealand did, like Scotland has—and start thinking about how important it is. We are facing some of the most challenging times, and they are yet to come, and we need a house that operates well, where there is respect for both sides, where business is done in the proper manner and where the people of Victoria can have some confidence that we are doing the job we are meant to do and that every member gets the opportunity to play their part in it.

House divided on motion:

Motion agreed to.