Thursday, 12 May 2022
Bills
Justice Legislation Amendment Bill 2022
Justice Legislation Amendment Bill 2022
Introduction and first reading
The PRESIDENT (18:03): I have a further message from the Assembly:
The Legislative Assembly presents for the agreement of the Legislative Council ‘A Bill for an Act to amend the Crimes at Sea Act 1999 to update references to Commonwealth legislation, to amend the Equal Opportunity Act 2010 in relation to secrecy provisions and an exemption relating to religious schools, to amend the Charter of Human Rights and Responsibilities Act 2006 to use gender inclusive language, to make miscellaneous amendments to the Judicial College of Victoria Act 2001, to amend the Magistrates’ Court Act 1989 in relation to rule making powers, to amend the Victorian Civil and Administrative Tribunal Act 1998 in relation to federal subject matter, to amend the Births, Deaths and Marriages Registration Act 1996 in relation to integrated birth certificates, to make miscellaneous amendments to the Adoption Act 1984 and to amend the Gender Equality Act 2020 to enable the Commissioner and specified persons to use or disclose information obtained under Division 3 of Part 7 of that Act in certain circumstances and for other purposes’.
That the bill be now read a first time.
Motion agreed to.
Read first time.
Ms PULFORD: I move, by leave:
That the second reading be taken forthwith.
Motion agreed to.
Statement of compatibility
Ms PULFORD (Western Victoria—Minister for Employment, Minister for Innovation, Medical Research and the Digital Economy, Minister for Small Business, Minister for Resources) (18:04): I lay on the table a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:
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 Justice Legislation Amendment Bill 2022.
In my opinion, the Justice Legislation Amendment Bill 2022, as introduced to the Legislative Council, 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 engages and promotes a number of Charter rights.
The Bill will expand the exceptions to the Equal Opportunity Act 2010 (EO Act) secrecy provision to enable the sharing of information in certain circumstances. These amendments promote the protection of children (section 17(2)) and engage but do not limit the right to privacy (section 13).
The Bill removes gender binary terms and provides gender inclusive language in the Charter. In doing so the Bill promotes the right to equality (section 8).
The Bill will introduce integrated birth certificates and make miscellaneous amendments to the Adoption Act 1984 and the Births, Deaths and Marriages Registration Act 1996 (BDMR Act). These amendments engage privacy rights (section 13) and the protection of families and children (section 17) but are considered compatible with the Charter.
The Bill clarifies the Magistrates’ Court’s (MCV) jurisdiction to hear and determine federal jurisdiction matters which promotes privacy rights (section 13) and the right to a fair hearing (section 24).
The Bill expands the circumstances under which the Public Sector Gender Equality Commissioner and other prescribed persons may disclose information gained through their dispute resolution function. These amendments engage the right to privacy (section 13) but is considered compatible.
Amendments to the Judicial College of Victoria Act 2001, the Magistrates’ Court of Victoria Act 1989 and the Crimes at Sea Act 1999 are not considered to engage any Charter rights.
Human Rights Issues
Equal Opportunity Act 2010
The Bill will expand the exceptions to the EO Act secrecy provision to enable the sharing of information:
a. where there is a serious threat of harm to a person or persons,
b. to comply with a mandatory reporting requirement,
c. where VEOHRC is the respondent to a freedom of information review at the Victorian Civil and Administrative Tribunal (VCAT), to the extent necessary to facilitate the review.
These amendments promote the protection of children (section 17(2)) and engage but do not limit the right to privacy (section 13).
The Bill will also amend section 83 the Equal Opportunity Act 2010 to include an avoidance of doubt provision which was inadvertently omitted from the Equal Opportunity (Religious Exceptions) Act 2021. Given the amendment is an avoidance of doubt provision and does not substantively change the legal effect of the Religious Exceptions Act, this amendment will neither limit nor promote any rights under the Charter.
Protection of children (section 17(2))
Section 17(2) of the Charter provides that every child has the right, without discrimination, to such protection as is in their best interests and is needed by them by reason of being a child.
The Bill promotes the right of a child to protection that is in the child’s best interests. It does this by enabling the disclosure of information where there is a serious threat of harm to a person (which may include a child) and enabling disclosure in compliance with a mandatory reporting obligation, such as the obligation to contact Victoria Police when a person reasonably believes that a sexual offence has been committed against a child.
In doing so, the Bill promotes the protection of children through appropriate disclosure of information, in the child’s best interests.
Right to privacy and reputation (section 13)
Section 13 of the Charter provides all persons with the right to not have their privacy, family, home, or correspondence unlawfully or arbitrarily interfered with.
The Bill engages the right to privacy by enabling the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) to share private, confidential information in particular circumstances. However, these amendments do not constitute arbitrary or unlawful interference with the right to privacy, and therefore do not limit this right.
The amendment to enable disclosure where there is a serious threat of harm to one or more persons will only operate in circumstances where the threat is assessed as credible, and imminent—limiting the circumstances in which confidential information is disclosed. Similarly, the exception to enable disclosure to comply with a mandatory reporting obligation will only operate in narrow circumstances—where there is an existing legal requirement to report certain information.
The purpose of these amendments is to allow for the sharing of information only when it is necessary to promote the safety and wellbeing of others, including some of the most vulnerable members of our community—children. When balanced against the risk and potential degree of harm associated with not disclosing information in these circumstances, I consider these amendments are compatible with the right to privacy.
The narrow application of the FOI exception—being applications for review made to VCAT—ensures that individuals’ information will not be released arbitrarily. Individuals’ privacy is further protected by sections 53A and 56 of the FOI Act, which impose protections and restrictions on VCAT’s use and distribution of ‘exempt’ documents, and a right of intervention for persons whose personal information is contained in the documents (and who are not otherwise party to the review).
The amendment appropriately balances the right to privacy with the efficient and effective functioning of the FOI review process and I am therefore satisfied that it does not limit the right to privacy.
Charter of Human Rights and Responsibilities Act 2006
The Bill removes gender binary terms and provides gender inclusive language to the Charter of Human Rights and Responsibilities Act 2006 (the Charter). In doing so the Bill promotes the right to equality (section 8).
Right to equality (section 8)
Section 8 of the Charter provides that every person has the right to recognition and is equal before the law. It also recognises every person is entitled to the equal protection of the law without discrimination. These three limbs of entitlement collectively ensure that all laws and policies are applied equally to all Victorians, and do not have a discriminatory effect.
Introducing gender inclusive language into the Charter promotes the right to equality by recognising every person has the right to recognition before the law and is therefore afforded equal protection under the law, regardless of gender identity.
Adoption Act 1984 and Births, Deaths and Marriages Registration Act 1996
The amendments to the Adoption Act and the BDMR Act are introduced to support the adoption community in Victoria by giving effect to several recommendations of the Legal and Social Issues Committee’s Inquiry into responses to historical forced adoption in Victoria, and to provide a discretionary power to the Secretary of the Department of Justice and Community Safety to use and disclose adoption information.
Right to privacy and reputation (section 13)
Under section 13 of the Charter, a person has the right not to have their privacy or family unlawfully interfered with, and not to have their reputation unlawfully attacked. This right is relevant to new section 100A to be inserted into the Adoption Act, which provides a discretionary power to the Secretary of the Department of Justice and Community Safety to use and disclose adoption information. This will allow the Secretary to use and disclose information as not currently allowed for in the Act, for example:
a. Providing a foster care agency with information about a child awaiting adoption;
b. Providing child protection with specific information if they are investigating an adoptive family;
c. Providing an Aboriginal Community Controlled Organisation with information about the adoption of an Aboriginal child.
In determining whether to disclose adoption information, the Secretary must have regard to certain matters, including whether disclosure would be in the best interest of any adopted child or adopted person who may be able to be identified from the adoption information, and whether there are risks to the safety or privacy of any individual who may be identified as a result of the disclosure and whether those risks can be managed. The person to whom adoption information is disclosed must only use or disclose it for the purpose for which it was provided.
Additionally, the Secretary, as a public authority, is required to consider the Charter before making a decision to use or disclose information. If such a decision is likely to limit a human right, the Secretary must assess whether the limitation is reasonable and justified, taking into account all relevant factors.
I therefore consider that any interference under new section 100A with a person’s privacy or reputation is lawful and not arbitrary and is compatible with the Charter.
Protection of families and children (section 17)
Section 17 of the Charter states that families are the fundamental group unit of society and are entitled to protection, and that every child has the right, without discrimination, to protection in their best interests needed by reason of being a child.
The Bill will amend section 43 of the Adoption Act, which enables the court to dispense with the consent of a person to the adoption of a child on certain grounds. Consent is a fundamental component of adoption, with the informed, voluntary consent of the parents or guardians of a child required in most cases before an adoption can take place. The Bill will remove some of the grounds which indicate a child may be in need of protection for dispensing with consent—i.e. where the court is satisfied the person has ‘deserted, persistently neglected or ill-treated’ the child or ‘has seriously ill-treated the child to the extent that it is unlikely that the child would accept, or be accepted by the person within, the family of that person’. An adoption order permanently severs the legal connection between the child and their birth family. Dispensing with consent may limit the right to protection of family, as it can result in a child being adopted without the consent of one or both birth parents. Therefore, limiting the grounds for dispensing with consent promotes the right to family, as there are fewer reasons where the consent of birth parents is not needed for an adoption to take place. The child’s right to protection will not be compromised, as where those grounds exist, they will be dealt with under the child protection system. That system is established to make decisions in relation to children at risk of harm, with the best interests of the child being the paramount consideration. Therefore, this amendment is compatible with section 17 of the Charter.
Victorian and Civil Administrative Tribunal Act 1998
As a result of High Court and Victorian Court of Appeal decisions, VCAT cannot determine ‘federal jurisdiction’ matters. These include matters where the dispute is between residents of different states.
To address this jurisdictional gap, the Victorian Civil and Administrative Tribunal and Other Acts Amendment (Federal Jurisdiction and Other Matters) Act 2021 inserted Part 3A into the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’) to establish a regime for the MCV to hear and determine federal jurisdiction matters.
Relevantly, provisions in Part 3A allow persons to apply to the MCV (under section 57B(1)(b)) and the MCV to hear and determine matters if their ‘application’ to VCAT that was struck out, rejected, dismissed or withdrawn on the grounds of federal jurisdiction. The Bill clarifies that these provisions also apply if the VCAT proceeding that was struck out, rejected, dismissed or withdrawn was commenced by way of ‘referral’ from a third party, rather than an ‘application’.
Referrals are made under enabling legislation, for example by a public authority if requested or required by a person, or by the relevant Minister in some cases. The amendment will clarify that both the person or body who made the referral and the party who requested the referral are entitled to apply to the MCV under section 57B(1)(b).
Right to privacy and reputation (section 13)
Section 13(a) of the Charter states that a person must not, relevantly, have his or her privacy unlawfully or arbitrarily interfered with.
The Bill promotes this right, by providing accessible legal recourse for parties if a complaint about an act or practice that may be an interference with the privacy of an individual has been referred to VCAT under the Health Records Act 2001 or Privacy and Data Protection Act 2014 and it is struck out, dismissed, rejected, or withdrawn because it involves a federal jurisdiction matter.
Right to a fair hearing (section 24)
Section 24 of the Charter provides that a party to a civil proceeding has the right to have that proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
The amendments to the VCAT Act promote the right to a fair hearing by facilitating access to justice. A narrow interpretation of Part 3A could exclude matters commenced in VCAT by referral from existing provisions which allow parties to apply to the MCV to hear, and the MCV to resolve, matters that have been struck out by VCAT due to federal jurisdiction. This would prevent individuals from vindicating their rights.
For example, if the Health Complaints Commissioner referred a complaint to VCAT under the Health Records Act 2001 and the respondent was a natural person who resided in different State to the complainant, VCAT would strike-out, dismiss or reject the matter or it would be withdrawn. On a narrow interpretation of s 57B(1)(b), the complainant would be unable to use the mechanism under Part 3A of the VCAT Act to apply to MCV and MCV could not hear the complaint. By clarifying that the relevant provisions apply to matters commenced in VCAT by ‘referral’, the Bill enhances the right to fair hearing.
For these reasons, I consider that the Bill promotes the right to a fair hearing.
Gender Equality Act 2020
Division 3 of Part 7 of the GE Act sets out the Public Sector Gender Equality Commissioner’s (Commissioner) functions in relation to enterprise agreements, enabling the Commissioner to deal with public sector gender equality disputes. In the course of exercising these functions, the Commissioner may be in receipt of personal and sensitive information about individuals, including information about their personal circumstances and their involvement in workplace conflicts. The Commissioner may also be in receipt of other forms of confidential information relating to organisations who are party to a dispute.
Right to privacy and reputation (section 13)
Section 46 of the Gender Equality Act currently prohibits the Commissioner from using or disclosing information obtained or provided under Division 3 of Part 7 of the GE Act for any purpose other than that for which it was obtained or provided. The Bill makes a number of changes to this requirement that engage the right to privacy in section 13(a) of the Charter.
First, the secrecy obligation in section 46 of the GE Act is extended beyond the Commissioner to include the Commissioner’s delegates or persons employed or engaged to assist the Commissioner (‘specified persons’). This amendment affirms that those working for the Commissioner are also bound by the secrecy obligation. In my view, this change promotes the right to privacy by strengthening the secrecy obligation in section 46, ensuring better protection of personal and sensitive information.
Second, the Bill also inserts new section 46A into the GE Act, providing a limited number of exceptions to the secrecy obligation in section 46. Section 46A will allow the Commissioner and specified persons to disclose information obtained through Division 3 of Part 7 of the GE Act to each other, and to use or disclose such information in the following circumstances:
a. if reasonably necessary for the Commissioner to perform a duty or function, or to exercise a power, under the GE Act or any other Act provided the information is not personal information, with the consent of the relevant;
b. to a court or tribunal during a legal proceeding or pursuant to an order;
c. to obtain or seek legal advice; or
d. if authorised, required or permitted by any other Act or law.
New section 46A also enables the Commissioner to disclose information to the Victorian Equal Opportunity and Human Rights Commission, Fair Work Commission, or another prescribed person or body, where the Commissioner considers that the information is relevant to the duties, functions and powers of the Commissioner or person or body to whom the information is being disclosed.
Whilst new section 46A broadens the circumstances in which information collected under Division 3 of Part 7 of the GE Act may be used and disclosed, to the extent that this may interfere with the privacy of persons to whom the information relates, the interference will be neither unlawful nor arbitrary. The interference will be prescribed by law and may only be shared for specified circumstances or with certain persons and bodies. The permitted uses and disclosures would thereby be authorised by law under the Privacy and Data Protection Act 2014 and the Information Privacy Principles.
Further, the interference is not arbitrary as the amendments are designed to allow the Commissioner to more effectively and expeditiously perform the Commissioner’s duties, functions and powers under the Act, and to align the Commissioner’s obligations under the Act with obligations arising under other laws.
The provisions authorising information use or disclosure for the purpose of performing the Commissioner’s duties, functions or powers are also subject to safeguards as information use or disclosure under this exception requires the consent of the relevant persons where the information to be used or disclosed contains personal information. Similarly, disclosing personal information to VEOHRC, Fair Work Commission and other prescribed persons or bodies is only permitted where the Commissioner obtains the consent of the person to whom the personal information relates, where it is reasonably practicable to obtain consent. Where consent is not obtained, the Commissioner can only disclose the information if the Commissioner is satisfied that the public interest in disclosing the information without consent outweighs the public interest in the non-disclosure of the information.
In my view, these safeguards, along with the narrow circumstances in which the use of personal information may be used and disclosed, mean any interference with a person’s privacy is not unlawful or arbitrary. Therefore, in my view, new section 46A is compatible with the right to privacy.
I consider that the GE Act amendments are compatible with the right in section 13(a) of the Charter, and, to the extent that the amendments limit this right, that such limits are reasonable and demonstrably justified having regard to the improvements the amendments will make to the ability of the Commissioner to operate in the broader public sector context.
Judicial College of Victoria Act 1999
The Bill increases the number of directors on the Judicial College of Victoria (College) Board who have experience outside the judiciary and acquits recommendation seven of the Review of Sexual Harassment in Victorian Courts and VCAT (Szoke Review). The Bill also amends the Judicial College governance processes to ensure the efficient operation of the College Board. As these changes are purely administrative, they are not expected to engage any Charter rights.
Magistrates’ Court Act 1989
This Bill will create administrative efficiencies in the MCV by requiring one instead of two Deputy Chief Magistrates in conjunction to the Chief Magistrate to make the rules of the court. As these changes are purely administrative, they are not expected to engage any Charter rights.
Crimes at Sea Act 1999
The Bill makes amendments to the Crimes at Sea Act 1999 to update the applicable criminal jurisdictions for areas adjacent to Australia’s coastline. The Crimes at Sea Act along with corresponding legislation in the Commonwealth, other Australian states and the Northern Territory ratify the national cooperative scheme for the operation of criminal jurisdiction in areas adjacent to Australia’s coast. As the Crimes at Sea Act describes the criminal jurisdiction of Victoria, it engages rights in the Charter that are relevant criminal proceedings and the rule of law, including sections 21 to 27.
The Bill does not make any changes to the criminal jurisdiction of Victoria, the only changes to jurisdictions are to those of Western Australia and the Northern Territory. The remaining changes are purely technical as they only relate to updating references to Commonwealth legislation. On this basis it is considered that no Charter rights are engaged by the Bill in relation to the Crimes at Sea Act amendments.
Jaclyn Symes MP
Attorney -General
Minister for Emergency Services
Second reading
That the second-reading speech be incorporated into Hansard.
Motion agreed to.
Ms PULFORD: I move:
That the bill be now read a second time.
Incorporated speech as follows:
The Justice Legislation Amendment Bill 2022 makes a number of minor but important amendments to update and clarify the law and support procedural improvements. The Bill responds to recommendations arising from inquiries including the Legislative Assembly Legal and Social Issues Committee’s Inquiry into responses to historical forced adoption in Victoria and the Szoke Review of Sexual Harassment in Victorian Courts and the Victorian Civil and Administrative Tribunal (or VCAT). The Bill also supports the Government’s ongoing commitment to the equal recognition and protection of all Victorians under the law regardless of gender.
I turn now to the detail of the Bill:
Clarifying and improving the operation of the Equal Opportunity Act 2010
The Bill creates new exceptions to the secrecy provision within the Equal Opportunity Act 2010, enabling the Victorian Equal Opportunity and Human Rights Commission to disclose confidential information when it is necessary to promote the safety and wellbeing of others, including children.
Under these exceptions, the Victorian Equal Opportunity and Human Rights Commission can disclose information where there is a credible and imminent threat of harm to a person or persons, and to comply with a mandatory reporting obligation, such as the obligation to contact Victoria Police when a person reasonably believes that a sexual offence has been committed against a child. The appropriate sharing of information is vital in promoting the safety and wellbeing of others.
These changes align with existing information sharing schemes across family violence and child protection and will ensure the continued protection of some of the most vulnerable members of our community, such as children. The narrow scope of these exceptions will ensure that a person’s right to privacy is respected, and confidential information is only shared when it is absolutely necessary to do so.
The Bill also creates a further exception to the secrecy provision to enable the Victorian Equal Opportunity and Human Rights Commission to disclose information to VCAT in respect of freedom of information review applications. Review of freedom of information decisions made by government and government agencies is a crucial accountability and transparency mechanism in our democracy, and it’s important that this vital function of government can continue to proceed in an efficient and timely way, while also ensuring appropriate privacy protections are still in place.
The Bill will also amend section 83 the Equal Opportunity Act to include an avoidance of doubt provision which was inadvertently omitted from the Equal Opportunity (Religious Exceptions) Act 2021. The Religious Exceptions Act already includes the same avoidance of doubt provisions in sections 82, 82A and 82B. While the proposed amendment does not alter the legal operation of section 83 given it is an avoidance of doubt provision, it will aid with interpretation and provide greater clarity and consistency within the Act.
Gender inclusive language in the Charter of Human Rights and Responsibilities Act 2006
This Bill will update the Charter of Human Rights and Responsibilities Act 2006 with gender inclusive language. This will include removing references to language such as ‘his,’ or ‘her’ and replacing these terms with language that does not denote gender, such as ‘person.’
Adopting gender inclusive language within legislation is an important step in modernising our laws and ensuring they are inclusive for all Victorians.
We know that a gender inclusive society has many social benefits—including improving social inclusion and cohesion, and better health and wellbeing outcomes across the community. As the foundational human rights law in Victoria, it’s important that the Charter reflects the more inclusive society we wish to be and should strive for.
The Government recognises that many other pieces of legislation contain outdated language. Addressing this issue for the Charter, which is a foundational document establishing equality for all Victorians, is an important first step but by no means the end of the process. Other legislation is being reviewed for inappropriate language and, as has occurred for some time now, will be updated progressively in conjunction with other reforms.
Reforms to the Adoption Act 1984 and Births, Deaths and Marriages Registration Act 1996
The Bill swiftly implements priority recommendations arising out of the Legislative Assembly Legal and Social Issues Committee’s Inquiry into responses to historical forced adoption in Victoria.
The forced separation of children from their mothers is a shameful part of our history. For many people this has resulted in significant distress, grief and lifelong trauma. The government recognises the significant harm caused by these practices, which for many is still traumatic to this day. We are committed to providing meaningful acknowledgement and support to those who are impacted.
The Bill amends the Adoption Act 1984 and the Births, Deaths and Marriages Registration Act 1996 to enable the issuing of an integrated birth certificate upon request by an adopted person who is 18 years of age or above. An integrated birth certificate is a legal identity document which includes both the names of the adoptive and birth parents of the adopted person. It is of equal status to other birth certificates and will be issued free of charge for first time applicants. This is an important change that is already in place in other jurisdictions.
Providing an adopted person with the choice to obtain an integrated birth certificate is the most appropriate way to address the interests of people who are adopted, as recommended by the Inquiry. The right to choose balances the adopted person’s right to have their identity and heritage recognised with their right to privacy and protection from unwanted disclosures.
The Bill improves access to adoption information for critical service organisations by providing the Secretary of the Department of Justice and Community Safety with a discretionary power to use and disclose adoption information. Adoption information can only be disclosed if the Secretary has considered the best interests of the adopted child or person and is satisfied in all the circumstances it is desirable to disclose such information.
In addition, the Secretary of the Department of Justice and Community Safety will have the power to obtain historical adoption records and information so they can be properly protected and be accessible into the future. It is vital that this history is preserved, to help ensure the mistakes of the past are never repeated.
The Bill will remove the requirement for a mandatory interview prior to the release of adoption records to adoptees and other applicants. The mandatory requirement will be altered to an ‘offer’ of counselling should it be required. This implements another recommendation of the Inquiry and recognises current modern practice.
The Bill will also make amendments that remove some of the current grounds for dispensing with consent to adoption of a child on grounds which indicate the child may be in need of protection. This will mean that where a situation of neglect or ill-treatment of a child exists, and the parents did not consent to the child being subject to an adoption order, the child could be kept safe and be cared for within the child protection system instead.
Increasing diversity and improving governance arrangements for the Judicial College of Victoria Board
The Bill will acquit Recommendation 7 from the Szoke Review of Sexual Harassment in Victorian Courts and VCAT by increasing the number of appointed directors on the Judicial College Board from 2 to up to 4 directors. This increase will help to ensure the education for Victoria’s judicial officers is directed by a more culturally diverse and community-based Board of directors. This diversity will help the judiciary to tackle the problems of sexual harassment as well as ensuring judicial education is reflective of Victoria’s diverse community.
Other amendments to the Judicial College governance processes will help to ensure that the College can continue to focus on providing the best education for Victorian judicial officers by streamlining their processes and reducing administrative inefficiencies.
The Bill will amend the decision making around rules of the court so that one or more Deputy Chief Magistrates are required to make rules of the court instead of two or more. This change better reflects the governance arrangements of the court and will assist to improve efficiencies in the court’s operations.
Clarifying federal jurisdiction matters in the Victorian and Civil Administrative Tribunal Act 1998
The Victorian Civil and Administrative Tribunal Act 1998 empowers the Magistrates’ Court to resolve disputes involving federal jurisdiction that cannot be heard by VCAT.
Matters can be commenced in VCAT by ‘application’ by a party or by ‘referral’ from a third party, such as a public authority or Minister.
The Bill puts beyond doubt that existing provisions that allow people to apply to the Magistrates’ Court to hear matters which were struck out, dismissed or rejected by VCAT or withdrawn on the ground that they involve federal jurisdiction, apply to ‘referrals’ as well as ‘applications’ and can be heard by the Magistrates’ Court.
These amendments ensure the existing provisions are not interpreted in a way which would leave referring entities and parties to referrals without a legal avenue to resolve the matters if they involve federal jurisdiction.
Updating criminal jurisdictions in the Crimes at Sea Act 1999
The Bill will make technical amendments to update the Crimes at Sea Act 1999. Victoria is part of a national cooperative scheme for applying and enforcing criminal jurisdiction in areas adjacent to Australia’s coast. Following the 2018 Treaty between Australia and the Democratic Republic of Timor-Leste Establishing their Maritime Boundaries in the Timor Sea, the areas of criminal jurisdiction adjacent to Australia’s coastline were amended in the relevant Commonwealth legislation.
The amendment to the Crimes at Sea Act will achieve consistency with the national cooperative scheme by updating descriptions of the areas adjacent to Australia’s coastline. The proposed amendments have no substantive impact on Victoria’s criminal jurisdiction as they primarily relate to Western Australia’s and the Northern Territory’s criminal jurisdictions.
Amending the secrecy provision in Gender Equality Act 2020
The Bill also includes amendments that will support better gender equality outcomes in Victorian workplaces, helping to achieve the objectives of the Gender Equality Act 2020.
One of the functions available to the Public Sector Gender Equality Commissioner is to conduct dispute resolution for a systemic gender equality issue that adversely affects a group or class of employees within a designated body. Currently, the Commissioner is subjected to a secrecy provision which prevents them from using or disclosing information obtained during the course of dispute resolution. This Bill amends the secrecy provision in section 46 of the Gender Equality Act 2020 to allow the Commissioner and specified persons to, in certain circumstances, use or disclose information obtained during the course of dispute resolution.
The amendments will allow the Commissioner to more effectively discharge their educative, research and reporting functions under section 36 of the Gender Equality Act 2020. They will also enable the Commissioner to enter into meaningful information sharing schemes with relevant bodies, including the Victorian Equal Opportunity and Human Rights Commission and the Fair Work Commission, where the information is relevant to the performance of the duties and functions or the exercise of powers of the Commissioner or that relevant person or body. This will support more effective processes and improve outcomes for affected parties, for example where a party to a systemic gender equality dispute referred to the Commissioner has also raised a related individual complaint of discrimination with the Victorian Equal Opportunity and Human Rights Commission. The amendments would also align the Commissioner’s obligations under the Gender Equality Act 2020 with obligations arising under other laws.
I commend the Bill to the house.
Mr ONDARCHIE (Northern Metropolitan) (18:05): I move, on behalf of my colleague Dr Bach:
That this matter be adjourned for one week.
Motion agreed to and debate adjourned for one week.