Thursday, 31 August 2023
Bills
Triple Zero Victoria Bill 2023
Bills
Triple Zero Victoria Bill 2023
Statement of compatibility
Anthony CARBINES (Ivanhoe – Minister for Police, Minister for Crime Prevention, Minister for Racing) (10:07): In accordance with the Charter of Human Rights and Responsibilities Act 2006 I table a statement of compatibility in relation to the Triple Zero Victoria Bill 2023.
Opening paragraphs
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 Triple Zero Victoria Bill 2023 (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 repeals the Emergency Services Telecommunications Authority Act 2004 (ESTA Act) to modernise Victoria’s triple zero emergency communications service, through the establishment of Triple Zero Victoria.
Human Rights Issues
The following rights are relevant to the Bill:
• the right to equality and protection against discrimination under section 8;
• the right to privacy as protected by section 13;
• the right to freedom of expression under section 15(2);
• the right to take part in public life under section 18;
• the right to property under section 20;
• the right against self-incrimination under section 25(2)(k);
• the right not to be tried or punished more than once under section 26.
For the reasons outlined below, I am of the view that the Bill is compatible with the Charter because, to the extent that some provisions may limit human rights, those limitations are reasonable and demonstrably justified in a free and democratic society.
Right to equality
Section 8(3) of the Charter provides that every person is equal before the law and is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination.
Section 8(2) of the Charter also provides that every person has the right to enjoy his or her human rights without discrimination. The term ‘discrimination’ referred to in section 8(3) of the Charter is defined as:
discrimination (within the meaning of the Equal Opportunity Act 2010) on the basis of an attribute set out in section 6 of that Act.
‘Profession, trade or occupation’ is a protected attribute in section 6 of the Equal Opportunity Act, which may be relevant to the Bill. The Equal Opportunity Act does not define ‘profession, trade or occupation’, however a fair reading would suggest that this section protects Victorians who face discrimination and stigma because of their employment.
Section 18(1) of the Charter provides that every person has the right and opportunity, without discrimination, to participate in the conduct of public affairs. Section 18(2)(b) of the Charter provides that every eligible person has the right and opportunity, without discrimination, to have access on general terms of equality, to the Victorian public service and public office.
Eligibility for membership of the Triple Zero Victoria Board and Operational Committee
Clause 19 of the Bill governs the membership of the Triple Zero Victoria Board. This provision specifies the eligibility for appointment to the Board, including the appropriate knowledge and experience. Clause 19(6) of the Bill provides that a person is not eligible to be appointed to the Board if the person is an employee of an emergency services organisation, an employee of Triple Zero Victoria, an employee of a related services organisation, or a member of a board of an emergency services organisation or a related services organisation.
Clause 42 of the Bill establishes an Operational Committee to advise the Triple Zero Victoria Board on range of matters relevant Triple Zero Victoria’s functions. Clause 52 of specifies the membership of the Operational Committee, including up to three persons appointed by the Triple Zero Victoria Board. Clause 52(3) provides that a person appointed to the Operational Committee must not be a member of the Board, an employee of Triple Zero Victoria or an employee of an emergency services organisation.
These provisions may limit the rights to equality and public life by excluding people by reference to their employment with specified agencies, being Triple Zero Victoria and emergency services organisations. However, to the extent that these rights are limited, I consider that these limitations are minor, and are reasonable and demonstrably justified.
These provisions are necessary to promote the intent of the reforms and ensure the independence of the Triple Zero Victoria Board and Operational Committee. The provisions do this by removing any real, potential, or received conflicts of interest of members eligible for appointment. The provisions also ensure that key governance roles within Triple Zero Victoria are held by people with a diverse range of relevant skills and experience external to the organisation. I also note that the Bill does not prevent the Minister from appointing former officers or employees of the relevant organisations.
Right to privacy
Section 13 of the Charter provides that a person has the right not to have their privacy unlawfully and arbitrarily interfered with and the right not to have their reputation unlawfully attacked.
Collection and sharing of information
Clause 62 of the Bill provides that Triple Zero Victoria may collect information for the purposes of performing its functions and exercising its powers. The information includes health information, personal information, an identifier, or a unique identifier, obtained from a relevant person or organisation.
‘Health information’ is defined in section 3(1) of the Health Records Act 2001 to include, in general terms, information or an opinion about a person’s physical, mental, or psychological health, disability, health services provided or to be provided, or other personal information obtained during the course of providing a health service.
An ‘unique identifier’ is defined in section 3(1) of the Victorian Data Sharing Act 2017 to include an identifier (usually a number and other than the person’s name) used by organisations to identify individuals for the purposes of operations of the organisation beyond the scope of the ‘identifier’ defined in the Health Records Act.
‘Personal information’ is defined in section 3(1) of the Privacy and Data Protection Act 2014 to mean any information or opinion, whether true or not, that is recorded in any form, about an individual whose identity is apparent or can readily be ascertained, from the information.
Clauses 60 and 61 of the Bill impose obligations on Triple Zero Victoria to share that information. Specifically, Triple Zero Victoria will be required to be provide to relevant persons or organisations within 45 days or within another period agreed to by Triple Zero Victoria and the relevant person or organisation, where that person or organisation requests information that:
• relates to call taking and dispatch services or operational communications services provided by TZV, and
• is relevant to the performance of the functions of the person or organisation.
Triple Zero Victoria must also voluntarily disclose information to a relevant person or organisation that relates to the performance of the functions of the person or organisation.
The collection and sharing of information under the Bill may give risk to a prima facie interference with the privacy of individuals including, but not limited to, triple zero callers and responding emergency services personnel.
However, I consider that any such interference with the privacy of an affected individual is not an ‘unlawful and arbitrary’ interference. The Bill clearly specifies the circumstances in which collecting and sharing information is lawful, including by explicitly providing that the provisions do not affect existing key information privacy legislation.
The provisions under the Bill are also not arbitrary as collection and sharing of information serves the legitimate aim of supporting effective emergency response and assistance. For these reasons, in my view any interference with privacy is therefore neither unlawful nor arbitrary, such that the right to privacy is not limited by the provision.
Reporting to the Operational Committee, Justice Secretary and Minister for Emergency Services
Part 7 of the Bill also sets out a range of mandatory reporting requirements in relation to a broad range of information. The mandatory reporting requirements include that:
• that Triple Zero Victoria must report to the Operational Committee on matters impacting the performance of emergency services organisations
• that the Board must report to the Minister and the Justice Secretary in relation to the performance of Triple Zero Victoria
• that the Chief Executive Officer must report to the Minister and the Justice Secretary on a range of matters impacting the performance of Triple Zero Victoria
• that the Chief Executive Officer must report to the Board on a range of matters impacting the performance of Triple Zero Victoria.
The scope of the matters required to be reported under Part 7 of the Bill are broad, including specific risks that might impact the operations or performance of services delivered by Triple Zero Victoria. However, this is unlikely to capture the communication of information that could reasonably impact the privacy of a particular individual.
In any event, as the Bill will authorise mandatory reporting within clearly defined legislative parameters, any indirect interference with privacy is not unlawful. In addition, the interference would not be arbitrary, as the reporting framework supports the intent of the reforms that is necessary for ensuring the effective and efficient delivery of services provided by Triple Zero Victoria.
Disclosing pecuniary interests
Clause 30 of the Bill requires that a member of the Triple Zero Victoria Board or delegate disclose the nature of any direct or indirect pecuniary interest in a matter being considered, or to be considered, by the Board. The disclosure must be recorded in the minutes of the meeting.
The Bill creates an offence for failing to disclose the interest as soon as practicable after the member or delegate becomes aware of the matter.
These provisions may have the practical effect of compelling members and delegates to disclose pecuniary interests, most likely including information about the person’s personal or financial affairs. This may interfere with the Board member or delegate’s right to privacy.
However, any such interference with the right to privacy would not be unlawful nor arbitrary. The requirement to disclose pecuniary interests is clearly and narrowly confined to only when a potential conflict of interest might arise. This provision is also necessary to ensure the integrity of Triple Zero Victoria Board decisions, by removing any real, potential, or perceived conflicts of interest held by members and delegates.
Freedom of expression
Section 15(2) of the Charter provides that every person has the right to freedom of expression. This includes the freedom to seek, receive and impart information and ideas of all kinds – whether orally, in writing, in print or by way of art or other medium. This right is considered to embrace a right of access to information, particularly in relation to information held by public bodies.
Clause 63 of the Bill places limits on recording, using, and disclosing any information acquired in the performance of the person’s functions or the exercise of the person’s powers under the Bill. This provision makes it an offence to impart any information acquired during the course of Triple Zero Victoria’s operations, except as otherwise provided for by the Bill.
The constraints on information disclosure are imposed for the purposes of protecting the privacy and confidentiality of information that relates to people interacting with Triple Zero Victoria, and to ensure the free exchange of information to support the delivery of emergency services. The Bill provides exceptions to enable disclosure of that information, including when subject to any legal requirement or with the consent of the person to whom the information relates.
To the extent that this provision limits the right to freedom of expression, it is a lawful restriction within the meaning of section 15(3) as it is reasonably necessary to respect the rights and reputations of other persons. Any limitation is also reasonable and demonstrably justified to appropriately managing confidentiality and promoting public confidence in the delivery of emergency services.
Property rights
Section 20 of the Charter provides that a person must not be deprived of his or her property other than in accordance with law.
The Bill will transfer rights, assets, liabilities, and obligations from the Emergency Services Telecommunications Authority (ESTA) to Triple Zero Victoria. This may affect the property rights of individuals to the extent that they have an existing property or financial relationship with ESTA (e.g. if they are owed a debt).
However, the Bill will transfer all rights, assets, liabilities, and obligations to Triple Zero Victoria without amending, limiting or depriving any person of their existing property interests. On this basis, I consider that section 20 of the Charter is not engaged by provisions contained within this Bill.
Privilege against self-incrimination
Section 25(2)(k) of the Charter provides that a person charged with a criminal offence is entitled not to be compelled to testify against themselves or to confess guilt. Courts have interpreted this right as extending to the right not to be compelled to answer questions, or produce documents, or things, if to do so might tend to incriminate that person. The right will prevent a person against the admission of incriminatory material obtained in subsequent criminal proceedings.
Part 7 of the Bill sets out a range of mandatory reporting requirements in relation to a broad range of information, including specific risks that might impact the operations or performance of services delivered by Triple Zero Victoria.
Clause 60 and 61 of the Bill also includes mandatory information disclosure provisions that require Triple Zero Victoria to provide information when requested by relevant persons and organisations, including Victoria Police, the Inspector-General of Emergency Management and Safer Care Victoria.
These provisions may engage the privilege against self-incrimination, in the unlikely event that any information is subsequently used against a person in criminal proceedings.
However, I consider that there is no such limitation of this right. Predominantly the disclosure and reporting provisions apply to Triple Zero Victoria or the Triple Zero Victoria Board more broadly, rather than natural persons to which this right protects. While there are two provisions that impose disclosure obligations specifically on the Chief Executive Officer of Triple Zero Victoria, the Bill does not create any coercive mechanisms that work to compel disclosure of information, such as associated criminal offences for a failure to disclose or report information. The Bill also does not require the Chief Executive Officer to provide testimonial evidence, information on any subject matter or to answer any questions asked of them. Rather, the Chief Executive Officer is required only to report on matters specified in the Bill, including any inquiry into the performance of Triple Zero Victoria, how Triple Zero Victoria is meeting agreed performance standards, and any issues of public concern or risks affecting Triple Zero Victoria.
For these reasons, I do not consider that the relevant provisions under this Bill limit the privilege against self-incrimination.
Right not to be tried or punished more than once
Section 26 of the Charter provides that a person must not be tried or punished more than once for an offence in respect of which they have already been convicted or acquitted in accordance with law.
The Bill imposes additional consequences flowing from the commission or possible commission of an indictable offence for members of the Triple Zero Victoria Board. Clause 23 provides that the Minister must recommend removal of a Board member from office, if the Board member has been convicted of an indictable offence in Victoria, or an indictable-equivalent offence if it was committed in Victoria. Clause 22 similarly provides that the Minister may recommend the suspension of a Board member from office if the Board member is under investigation for an indictable or indictable-equivalent offence.
While these provisions might appear relevant to this right, section 26 does not operate to prevent other non-penal consequences from flowing from the same conduct that gave rise to a criminal conviction and punishment.
Removal or suspension of a Board member from office in these circumstances does not constitute a penal measure. Removal from office is not a consequence that is ordinarily available to courts in response to a conviction for a criminal offence. Further, these provisions are intended maintain the proper governance and administration of Triple Zero Victoria, by ensuring that Board members are fit to hold office and make decisions impacting the delivery of critical public services.
On this basis, I consider that section 26 of the Charter is not engaged by provisions contained within this Bill.
Second reading
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 Triple Zero Victoria Bill 2023 is a major component of the reform of Victoria’s triple zero service. The reform commenced in response to independent reviews into the capacity, capability, service delivery and financial sustainability of the Emergency Services Telecommunications Authority also known as ESTA. The Emergency Services Telecommunications Authority Capability and Service Review, also referred to as the Capability and Service Review and the Inspector-General for Emergency Management (IGEM)’s Ambulance Call Answer Review referred to as the IGEM Review, both noted the sustained increase in demand on ETSA’s call-taking and dispatch capabilities, while finding that the governance arrangements and partnerships with the emergency services sector were not operating as intended.
The Capability and Service Review made 20 recommendations to transform ESTA’s governance, call-taking and dispatch (CTD) service, technology and managed services, intelligence services and performance standards, to address systemic issues within the organisation.
IGEM made eight recommendations, 42 findings and nine observations that speak to opportunities to ensure the sustainability of ESTA’s operations into the future, improve patient outcomes, and restore confidence in ESTA’s services. These recommendations align with those from the Ashton Review, specifically regarding governance, collaboration, performance standards, enhanced service delivery and training.
The Triple Zero Victoria Bill strengthens the governance, accountability and oversight of Victoria’s triple zero service, formalising a genuine partnership across the emergency services sector and brings the new entity closer to government.
The Bill will repeal the current Emergency Services Telecommunications Authority Act 2004 and ESTA, its Board and Advisory Committee will cease to exist upon the commencement of the Triple Zero Victoria Act. In its place will be a new entity, Triple Zero Victoria, a statutory authority with a sustainable and enduring organisational framework, that has clearly defined roles and accountabilities to support strong internal governance and with strengthened government oversight.
The focus of Triple Zero Victoria will be on delivering high quality and timely call taking and dispatch services and operational communications services. The new legislation is explicit in this focus, which will enable Triple Zero Victoria to support emergency services organisations to respond to community need and manage call taking and dispatch in times of peak demand.
The Bill enables the Minister for Emergency Services to confer additional functions related to the emergency management sector on Triple Zero Victoria, where it would be sensible do so, and for the time specified in the Ministerial Order. An example of this is non-emergency patient transport booking and dispatch services, which ESTA currently manage on behalf of Ambulance Victoria. Orders will be made to ensure that existing functions carried out by ESTA will be undertaken by Triple Zero Victoria from the first day of operation, to allow for a seamless transition.
Governance
The Triple Zero Victoria Bill has achieved the intent of the key recommendations in the Capability and Service Review and the IGEM Review to implement organisational change to bring the new Triple Zero Victoria entity closer to government. The Bill provides stronger governance with explicit responsibilities for the Triple Zero Victoria Board and CEO. The Bill also provides for strengthened oversight of the Board and the CEO by the Minister and the Justice Secretary.
The Triple Zero Victoria Board has a clear legislated focus on setting the strategic direction for Triple Zero Victoria, management of risks, setting the organisational framework and culture and ensuring the delivery of agreed performance standards.
In the event of underperformance by the Board, the Minister has the power to appoint up to two delegates to the Board in order to improve and strengthen the performance of Triple Zero Victoria.
Victoria is unique in Australian jurisdictions in that the triple zero call taking and dispatch service is managed by a central organisation, and not by individual emergency services organisations. Therefore the cooperation, coordination and partnerships between Triple Zero Victoria, emergency service organisations and government are paramount to ensure appropriate responsiveness to community health and public safety needs.
The Bill strengthens the cooperation and partnerships between Victoria’s triple zero service and the emergency services sector. The Bill provides for the establishment of the Operational Committee which ensures that emergency services organisations and key government departments are engaged in the setting and delivery of strategic priorities of Triple Zero Victoria.
The Operational Committee will set inter-agency strategic priorities which will provide a strong foundation to explore and address critical aspects of the services delivered by Triple Zero Victoria to ensure they remain fit for purpose. The identification of known risks that may impact emergency services organisations, Triple Zero Victoria or the community will be an important role for the Committee who will have the opportunity to provide the Board with advice on how these can be mitigated.
Government Oversight
Recognising that Triple Zero Victoria must be more integrated with government, the Board must report to the Minister for Emergency Service and the Justice Secretary, at intervals set by the Minister or Justice Secretary about the performance of Triple Zero Victoria. The issues that the Board must report on include any concerns about Triple Zero Victoria’s performance, particularly in relation to the impact this could have on community safety, the ability of emergency services organisations to deliver their services or the services delivered by Triple Zero Victoria. Identification, management and mitigation of risks to services are also matters that the Board must report on.
A key part of the reform package is to ensure that there is a clear relationship between the Minister for Emergency Services and the CEO which does not conflict with the Board’s relationship with the Minister for Emergency Services. While it is not intended that there be formal reporting lines to the Minister for Emergency Services, it is contemplated that the CEO will engage directly with the Minister for Emergency Services where necessary. The Bill also allows the CEO to engage with the Justice Secretary in these circumstances. This will enable the Minister, the department and the CEO to engage with one another when necessary, without having to await formal Board approval for each interaction. This is expected to be particularly beneficial at times of crisis.
In order to remove any ambiguity about how the interface between Triple Zero Victoria and government should operate, the Bill sets out role and powers of the Minister for Emergency Services. Some of these powers, such as the approval of an organisational strategic plan or the selection of Board members, must be exercised in consultation with the Minister for Ambulance Services and the Minister for Police. This will ensure that the needs of all emergency services organisations are considered.
In order to strengthen the relationship between Triple Zero Victoria and government, the Justice Secretary has legislated accountabilities. This includes directions powers limited to administrative functions such as strategic planning and policies, workforce management and financial management. The Justice Secretary will also be required to endorse Triple Zero Victoria’s budget prior to approval by the Board. This is an important step in strengthening the financial sustainability of Triple Zero Victoria.
Both Reviews recommended that Victoria’s triple zero service becomes more accountable by considering the performance of triple zero services in the context of an ‘end-to-end’ process of incident management. This will drive behaviours which encourage efficiencies while reducing the focus on targets which do not directly measure the quality or outcome of a service to emergency services organisations or the community. The Capability and Service Review also recommended that the responsibility for approving performance standards is shifted from the IGEM.
The Bill includes provisions that empower the Emergency Management Commissioner to set performance standards that are endorsed by the Minister for Emergency Services. These outcome-based standards will be developed in consultation with Triple Zero Victoria, emergency services organisations, government departments and any other related organisation. These performance standards will be reviewed at least every five years in order to ensure that the standards remain fit for purpose as the Triple Zero Victoria entity matures, the needs of the Victorian community alter and technology changes.
Independent monitoring and assurance of the performance standards will continue to be the responsibility of the Inspector-General for Emergency Management. Where performance standards relate to Ambulance Victoria or the health services sector, the IGEM will be required to consult with Safer Care Victoria.
Triple Zero Victoria will be required to publish data relating to these performance standards on its website, to further strengthen transparency and oversight.
Fees
Under the new legislation Triple Zero Victoria will no longer receive annual revenue through a fee for service model and there is no provision for Triple Zero Victoria to charge fees for their services in the future. The Bill does not prevent Triple Zero Victoria from entering into a contractual arrangement or agreement that includes charges. Moving towards a direct appropriation model will also create financial certainty for the emergency services organisations.
I commend the Bill to the house.
James NEWBURY (Brighton) (10:08): I move:
That the debate be adjourned.
Motion agreed to and debate adjourned.
Ordered that debate be adjourned for two weeks. Debate adjourned until Thursday 14 September.