Tuesday, 15 October 2019

 The PRESIDENT (13:09): I have a message from the Assembly:

The Legislative Assembly presents for the agreement of the Legislative Council ‘A Bill for an Act to amend the Dangerous Goods Act 1985 to increase the penalties of various offences in that Act so that the penalties better reflect the serious nature of those offences and to create a new offence for reckless conduct in respect of dangerous goods that endangers persons and for other purposes’.

 Ms MIKAKOS (Northern Metropolitan—Minister for Health, Minister for Ambulance Services) (13:10): I move:

That the bill be now read a first time.

Motion agreed to.

Read first time.

Ms MIKAKOS: I move, by leave:

That the second reading be taken forthwith.

Motion agreed to.

 Ms MIKAKOS (Northern Metropolitan—Minister for Health, Minister for Ambulance Services) (13:10): 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 (Charter), I make this Statement of Compatibility with respect to the Dangerous Goods Amendment (Penalty Reform) Bill 2019(Bill).

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

Overview of the Bill

The Bill amends the Dangerous Goods Act 1985 (Act) to:

• Increase the penalties of various offences in the Act so that the penalties better reflect the serious nature of those offences; and

• Create a new offence for conduct in respect of dangerous goods that endangers persons.

While the increased penalties do not, in and of themselves, engage human rights, some of the existing offence provisions to which they attach do. Given that those offence provisions have not been previously discussed in a Statement of Compatibility, I will consider their compatibility with relevant human rights, as well as that of the new offence provision, now. Having regard to the nature of the offence provisions, I consider that the only relevant human right is the right to the presumption of innocence.

Human rights issues

Section 25(1) of the Charter provides that a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law. The right in section 25(1) is relevant where a statutory provision shifts the burden of proof onto an accused in a criminal proceeding such that the accused is required to prove matters to establish, or raise evidence to suggest, that they are not guilty of an offence.

‘Reasonable excuse’ and ‘lawful excuse’ exceptions

The Bill increases the penalty for an existing offence provision that contains a ‘reasonable excuse’ exception. In addition, the Bill inserts a new offence provision that contains a ‘lawful excuse’ exception. The ‘reasonable excuse’ and ‘lawful excuse’ exceptions place an evidential burden on the accused in requiring them to raise evidence of either a reasonable or lawful excuse; however, in my opinion, neither provision limits the right to be presumed innocent.

Section 17K(3) of the Act provides that an owner or person in possession or control of dangerous goods must not, without reasonable excuse, refuse or fail to comply with a direction issued by an inspector, when the inspector has a reasonable belief that danger to any person or property exists or may arise in respect of dangerous goods that are damaged or spilled. The amendments in the Bill bring the penalty in s 17K(3) in line with the penalty in s 18A(2), which similarly provides for the offence of refusing or failing to comply with a direction of an inspector where the inspector reasonably believes the direction to be necessary because of an immediate risk to the safety of any person or damage to any property arising out of the presence of dangerous goods.

Further, the Bill introduces s 31D, which provides that a person must not, without lawful excuse, recklessly engage in the manufacture, storage, transport, transfer, sale or use of dangerous goods that places, or may place, another person in danger of death. Due to the severity of consequences that may ensue in the event of non-compliance, the new offence provision carries a penalty of 3,800 penalty units or 10 years’ imprisonment for an individual or 40,000 penalty units for a body corporate.

Although the ‘reasonable excuse’ exception in s 17K(3) and ‘lawful excuse’ exception in new s 31D place an evidential burden on the accused, in doing so, these offences do not transfer the legal burden of proof. Once the accused has pointed to evidence of a reasonable or lawful excuse, which will ordinarily be peculiarly within their knowledge, the burden shifts back to the prosecution to prove the essential elements of the offence. I do not consider that an evidential onus of this kind limits the right to be presumed innocent, and courts in other jurisdictions have taken this approach.

Therefore, in my opinion, s 17K(3) as amended by the Bill and new s 31D are compatible with the right to be presumed innocent.

‘Lawful authority or excuse’

The Bill increases the penalty attaching to existing s 31(2) of the Act, which provides that a person must not, without lawful authority or excuse, do anything in or near a licensed premises which causes or is likely to cause an accident involving dangerous goods. The provision expressly states that the burden of proving the existence of lawful authority or excuse is on the accused. This defence shifts the burden of proof onto an accused to prove certain matters in order to avoid liability.

The right to be presumed innocent is an important right that has long been recognised under the common law. However, the courts have held that it may be subject to limits, particularly where, as here, an exception is enacted to enable a defendant to escape liability. While the imposition of a legal burden on the accused will limit their right to the presumption of innocence, I consider that the limit in s 31(2) is reasonably justified under section 7(2) of the Charter. The matters required to be proven will be within the unique knowledge of the accused, who is best placed to lead this evidence. Conversely, it would be difficult for the prosecution to prove these matters in the negative. If the accused has lawful authority or excuse, it should be relatively simple and straightforward to prove in court.

Further, the limit on the right to be presumed innocent is imposed only in respect of the available exception. The prosecution will still first have to establish the elements of the particular offence. Although an evidential onus would be less restrictive than a legal onus, it would not be appropriate in light of the strong public interest in ensuring that people do not engage in conduct that may result in accidents involving dangerous goods. Given the importance of maintaining compliance with these provisions and creating a deterrent effect for future conduct, it is necessary for accused persons to demonstrate to a civil standard that they have a lawful excuse or authority, as the case may be, to escape liability.

Accordingly, despite containing a reverse onus, I consider s 31(2) of the Act to be compatible with the right to be presumed innocent.

The Hon. Gayle Tierney MP

Minister for Training and Skills

Minister for Higher Education

 Ms MIKAKOS (Northern Metropolitan—Minister for Health, Minister for Ambulance Services) (13:10): I move:

That the second-reading speech be incorporated into Hansard.

Motion agreed to.

Ms MIKAKOS: I move:

That the bill be now read a second time.

Incorporated speech as follows:

The Andrews Labour Government is delivering on its commitment to strengthening the regime for dangerous goods in Victoria with the introduction of a new reckless conduct offence and increases to penalties for existing offences in the Dangerous Goods Act 1985.

These reforms follow the recent discovery of a number of sites across outer Melbourne that were storing dangerous goods in contravention of the requirements under the Dangerous Goods Act 1985. There have been two significant industrial fires involving dangerous goods over the last year causing widespread community concern. To reflect the significant health and safety risks associated with these events, the Bill creates a new offence for a person who recklessly engages in conduct relating to dangerous goods that places, or may place, a person in danger of death.

The Bill also increases the financial and imprisonment penalties of various offences in the Dangerous Goods Act 1985 so that the penalties better reflect the serious nature of the offending conduct.

The recent industrial fires and discovery of sites housing dangerous goods in contravention of the Dangerous Goods Act have highlighted that the current offences in the Act are not a sufficient deterrent for illegal activity and non-compliant behaviour.

I now turn to the provisions of the Bill before Parliament.

New indictable offence under the Dangerous Goods Act 1985

The Bill introduces a new offence in the Dangerous Goods Act 1985 of recklessly engaging in conduct relating to the manufacture, storage, transport, transfer, sale or use of dangerous goods that places, or may place, a person in danger of death. This offence carries a penalty of up to 10 years imprisonment for individuals, and body corporates will face fines of up to 40,000 penalty units (approximately $6.608 million).

This offence will have the highest penalties available under the Dangerous Goods Act 1985, and will recognise the seriousness of the offending conduct.

The offence is modelled on section 22 of the Crimes Act 1958. Including such an offence in the Dangerous Goods Act allows investigations to be carried out by WorkSafe inspectors, who have specialist knowledge and expertise in this area.

Increase to penalties under the DG Act

The Bill provides for an increase in the maximum penalties specified for certain offences under the Dangerous Goods Act 1985, increasing the maximum financial penalty from 1000 penalty units (approximately $165,220) to 1800 penalty units (approximately $297,396) for individuals and more than doubling the fines available for body corporates, from 5000 penalty units (approximately $826,100) to 20,000 penalty units (approximately $3.304 million).

These increases relate to individuals and body corporate who are found guilty of contravening specified provisions of the Dangerous Goods Act, in circumstances where the offender knew or ought reasonably to have known that the conduct would endanger the safety or health of another person, property or the environment.

The Bill also increases the current penalties for a range of other offences, including:

• Failing to comply with a direction issued by an inspector to dispose of or render harmless dangerous goods or to stop the use, or use the goods under specified conditions, of premises or magazines considered to be dangerous

• Failure to take reasonable precautions to prevent tampering, theft, fire, explosion or damage

• Abandoning, discarding, or neglecting to dispose of dangerous goods safely

• Persons who do anything in or near any licensed premises which causes or is likely to cause an accident involving dangerous goods

• Failure to comply with requirements on goods too dangerous to be transported.

Financial penalties for individuals and body corporates in respect to the above offences will more than double. These increases bring the penalties with similar offences in the Occupational Health and Safety Act 2004 and better reflect the serious nature of the offending conduct.

The stronger regulation of dangerous goods is a priority for the Andrews Labor Government, and these penalty increases are an important step towards strengthening the broader dangerous goods framework.

I commend the Bill to the house.

 Mr RICH-PHILLIPS (South Eastern Metropolitan) (13:11): I move:

That debate on this bill be adjourned until the next day of meeting.

Motion agreed to and debate adjourned until next day of meeting.