Tuesday, 15 October 2019

 The PRESIDENT (13:11): 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 Rail Safety National Law Application Act 2013, the Transport (Safety Schemes Compliance and Enforcement) Act 2014, the Transport Integration Act 2010 and the Transport (Compliance and Miscellaneous) Act 1983, to repeal the Rail Safety (Local Operations) Act 2006 and to make consequential amendments to other Acts and for other purposes’.

 Ms MIKAKOS (Northern Metropolitan—Minister for Health, Minister for Ambulance Services) (13:12): 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) (13:12): I lay on the table a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:

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 Rail Safety Legislation Amendment (National Services Delivery and Related Reforms) Bill 2019.

In my opinion, the Bill, 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 main purposes of the bill are to amend the Rail Safety National Law Application Act 2013 (the Principal Act) to provide for the safety of all rail infrastructure and rolling stock operations carried out in Victoria and for all rail safety work carried out in Victoria to be regulated under the Rail Safety National Law (Victoria) (National Law), and to provide for the Office of the National Rail Safety Regulator (Regulator) to be the sole regulator of those operating in rail safety work. The bill also repeals the Rail Safety (Local Operations) Act 2006 (Local Operations Act) and, as a consequence, re-enacts the provisions in that Act for the drug and alcohol testing of rail safety workers in the Principal Act.

Human Rights Issues

Right to the presumption of innocence

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. This right is relevant where a statutory provision shifts the burden of proof onto an accused in a criminal proceeding, so that the accused is required to prove matters to establish, or raise evidence to suggest, that they are not guilty of an offence.

Legal burdens

Section 48D, inserted into the Principal Act by clause 17 of the bill, has the effect of requiring rail safety workers to prove certain matters to show that they are not guilty of an offence. In particular:

•   Under subsections (l)–(3), if a certain concentration of drugs or alcohol is detected in a sample taken from a rail safety worker, or if it is shown that a certain drug was in the body of the rail safety worker, within 3 hours of certain alleged offences occurring, then, until the contrary is proved, it is presumed that drug or that concentration of drugs or alcohol was present at the time of the alleged offence.

•   Under subsections (4) and (5), for the purposes of certain offences, it is presumed that the concentration of alcohol or drug present in a breath test, a blood test, or an oral fluid sample was not due solely to the consumption of that drug or alcohol by the worker after having carried out rail safety work, unless the contrary is proved by the worker ‘on the balance of probabilities by sworn evidence given by the worker which is corroborated by the material evidence of another person.’

These provisions therefore require that the accused must establish on the balance of probabilities that the relevant drug, or the relevant concentration of alcohol or drug, was not present at the time of the alleged offence, or that the concentration of drugs or alcohol was due solely to the consumption of those substances after having carried out rail safety work. As they impose a legal burden of proof on the accused, these provisions limit the presumption of innocence.

The question of whether a reverse onus of this nature constitutes a reasonable limitation on the presumption of innocence depends on all the circumstances of the case, including: the seriousness of the offence; the punishment which may flow from a conviction; the nature and extent of the matters required to be proved by the accused; and the significance of those matters relative to the matters required to be proved by the prosecution.

In this case, the reverse onus only affects persons who are working as rail safety workers in a regulated industry—the provisions do not apply to the general public. The relevant offences are regulatory offences involving a maximum penalty of a $10,000 fine. The offences are therefore of a less serious nature than criminal offences involving imprisonment. The reverse onus only arises where a breath, blood, or oral fluid test has demonstrated the presence of a certain drug or a certain concentration of drugs or alcohol. In such circumstances, the matters to be proved by the accused are matters that fall particularly within the knowledge of the accused - that is, whether the accused was affected by drugs or alcohol at the time of the alleged offence, or whether the relevant consumption of drugs or alcohol occurred after the accused was no longer engaged in rail safety work. It would be unduly difficult and onerous for the state to investigate and prove these matters. Imposing a burden of proof on the accused in these circumstances therefore ensures that these offences can be prosecuted effectively and that they operate as a deterrent to the unlawful carrying out of rail safety work. Further, imposing an evidential onus (which would merely require the accused to show some evidence to displace the relevant presumptions) would not be effective, as it could be too easily discharged by the defendant.

As such, in my view, these provisions are demonstrably justifiable on the basis that they are necessary for the important purpose of providing that rail safety work is conducted appropriately, and protecting the community from the risk of unsafe rail operations. I therefore consider that these provisions are compatible with the Charter.

Evidentiary burdens

The bill also contains a number of provisions imposing an ‘evidentiary burden’ on the accused—that is, a requirement that the accused point to some evidence to displace a presumption:

• New section 48K provides that if it is proved that a rail safety worker was carrying out rail safety work, that one or more drugs were present in their body, that their behaviour was consistent with that of a person who has used or consumed certain drugs, and that the behaviour usually associated with use or consumption of those drugs would result in the person being unable to carry out rail safety work properly, then in the absence of evidence to the contrary, this is proof that the rail safety worker carried out rail safety work while impaired by a drug.

• New section 48N provides that a document purporting to be a print-out produced by a breath analysing instrument and purporting to be signed by the person who operated the instrument is admissible in evidence and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.

• New section 48P provides that in certain proceedings, the statement of a police officer that they were authorised by the Chief Commissioner of Police to carry out an assessment for drug impairment on a particular date, or a certificate purporting to be signed by the Chief Commissioner stating that a police officer is authorised to do so, is admissible in evidence and, in the absence of evidence to the contrary, is proof of the authority of the police officer. New section 48W(2) makes similar provision with regard to evidence that a police officer was authorised to take an oral fluid sample under new section 48R.

• New section 48ZB provides that various matters relating to blood tests can be certified and taken as proof of the facts and matters contained in the certification in the absence of evidence to the contrary. For example, an approved analyst may sign a certificate containing the prescribed particulars as to the concentration of drugs or alcohol in a particular blood sample, and that certificate, in the absence of evidence to the contrary, is proof of the facts and matters contained within it.

• New section 48ZC makes similar provision in relation to oral fluid samples.

• New section 48ZD makes provision for certification of evidence in relation to breath tests. However, the provision differs from sections 48ZB and 48ZC in that a certificate purporting to be a certificate containing the prescribed particulars produced by a breath analysing instrument of the concentration of alcohol indicated to be present in the breath of the person and signed by the person who operated the instrument is ‘conclusive proof’ of the facts and matters contained within it and various other matters, unless the accused gives notice that they require the person giving the certificate to be called as a witness, or that the accused person intends to adduce evidence in rebuttal of any such fact or matter.

In my view, although these provisions require an accused to adduce certain evidence, they do not limit the right to be presumed innocent. The prosecution must still prove the essential elements of the relevance offences; an accused need not prove any matters in order to escape liability. Therefore, the right is not limited and the provisions are compatible with the Charter.

Defences

In addition to the above provisions, the bill requires rail safety workers to prove or ‘satisfy the court’ of certain matters in order to establish a defence against certain offences, as follows:

• New subsections 48H(3) and (4) provide that it is a defence against charges relating to furnishing a breath sample or blood sample showing more than the prescribed concentration of alcohol if the person proves that the breath analysing instrument used on that occasion was not in proper working order or properly operated, or that the result of the blood analysis was not a correct result.

• Under new s 48S(5), a worker must not be convicted or found guilty of refusing to provide a sample required under s 48R if the worker satisfies the court that there was some reason of a substantial character for the refusal, other than a desire to avoid providing information which might be used against the worker. New section 48M(9) makes similar provision with regard to refusing to furnish a breath sample.

The matters that the defence must prove or show under these provisions are not essential elements of the offence. As such, in my view, the burden of establishing the offence is not transferred to the accused by these provisions, and the right to the presumption of innocence is not limited. Further, a requirement to prove or satisfy the court of these matters is necessary to avoid such defences being raised in circumstances where there is no real basis for them (in relation to new subsections 48H(3) and (4)), or where the matters raised are purely within the knowledge of the accused (in relation to new subsections 48S(5) and 48M(9)).

Right to a fair hair hearing

Section 24(1) of the Charter provides that a person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

The right to a fair hearing is engaged by new sections 48ZB and 48ZC. Under these provisions, an accused who has been served with a copy of a certificate stating certain facts or matters relating to blood samples and oral fluid samples may, with the leave of the court, require the person who has given the certificate (or another relevant person) to attend at all subsequent proceedings for cross-examination. However, the leave of the court can only be given if certain conditions are met (for example, where there is a reasonable possibility that the sample was not that of the accused, or was contaminated, or where the attendance of the person would materially assist the court to ascertain relevant facts).

These provisions facilitate the effective prosecution of rail safety offences involving the use of drugs and alcohol. In my view, they do not impose any unreasonable requirements on the accused or any inappropriate restrictions on the ability of the accused to challenge the evidence of the prosecution. As such, the right to a fair hearing is not limited.

The right to a fair hearing may also be engaged by new sections 48M(13), 48V(6), 48X(6), and 48ZA(7). These sections provide that no action lies against a registered medical practitioner or approved health professional in respect of anything properly and necessarily done in the course of taking a blood sample or being furnished with a urine sample which they believed on reasonable grounds was allowed to be taken under the relevant provisions of the Principal Act.

This immunity from legal action may be relevant to the fair hearing right as a person affected by the actions of medical practitioners and health professionals in the relevant circumstances will be unable to bring an action against them. In other jurisdictions, it has been found that a broad statutory immunity from liability which imposes a bar to access to the courts for persons seeking redress against those who enjoy the immunity may breach the fair hearing right.

However, the immunity only extends to things ‘properly and necessarily done’. As such, it is still possible for a person to seek redress where improper or unnecessary actions have caused harm. The immunity also will not apply if the medical practitioner or health professional acted outside the scope of the legislation. Further, samples may only be taken without the consent of the rail safety worker by the requirement or direction of authorised persons; any person harmed by the taking of a sample could potentially bring an action against the authorised person who made the requirement that the worker furnish the relevant sample. On balance, I therefore consider that even if the right to a fair hearing is engaged, these provisions are compatible with that right.

An additional immunity is provided by new section 48ZB(15), which provides that if a registered medical practitioner or approved health professional is requested to examine or collect a sample of blood for the purposes of s 48ZB, and the rail safety worker has consented to the examination or collection, then no action lies against the medical practitioner or health professional even if it subsequently appears that the worker was incapable by reason of their mental condition of effectively giving consent. While the right to a fair hearing may be engaged by this provision, I consider that it is not limited. In circumstances where a medical practitioner or health professional reasonably believes that a person has validly consented, it is appropriate that they should be able to act upon that consent without fear of legal consequences. This is particularly necessary in circumstances such as these, where questions will often arise relating to whether the accused is impaired by drugs or alcohol.

Right to privacy

Section 13(a) of the Charter provides that a person has the right not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with. The bill contains provisions that may give rise to interferences with the right to privacy; however, in my view, any such interferences will be neither unlawful nor arbitrary and therefore do not limit this right.

New s 48P sets out the procedure for assessments of drug impairment. Subsection (3) provides that an assessment must be video-recorded if the worker was involved in a ‘notifiable occurrence’ unless the prosecution satisfies the court that a recording has not been made because of exceptional circumstances. This provision engages the right to privacy as a person may have their drug impairment assessment video viewed by the court and other persons. However, in my view, any interference with privacy is neither unlawful nor arbitrary, as requiring video evidence of a drug impairment assessment is reasonably necessary to provide evidence of a relevant impairment, and may also help protect the rights of the accused where there is a dispute regarding whether they were drug impaired. Further, new section 48Z requires that videos must be destroyed within one month if a charge has been brought but the matter is not proceeded with or is discontinued or otherwise concluded, or within 12 months if the worker is not charged.

Several provisions in the bill also authorise or require information or documents to be disclosed in limited circumstances by or to the Regulator. The provisions include clause 14, which inserts a new Division 7 of Part 4 into the Principal Act, and clause 19, which inserts a new Part 8 into the Principal Act. In my view, any interference with privacy caused by these provisions will be minor in nature and will be neither unlawful nor arbitrary.

Right to freedom of expression

Section 15(2) of the Charter provides that every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds. This right is subject to special duties and responsibilities under section 15(3) of the Charter, and may be subject to lawful restrictions reasonably necessary to respect the rights and reputation of other persons, or for the protection of national security, public order, public health or public morality.

New s 48Z provides that it is an offence to use, or cause or permit to be used, a video-recording or related material concerning an assessment of drug impairment that is required to be destroyed under that provision. It is also an offence to use, permit to be used, or otherwise disseminate information derived from such a video or related material. This offence restricts the right to freedom of expression. However, any limitation falls within the internal limitations on the right as it is a lawful restriction that is reasonably necessary to protect the privacy rights of persons subject to drug impairment assessments. I therefore consider that the offence is compatible with the Charter.

Requirements or directions that rail safety workers submit to drug or alcohol tests

Clause 17 of the bill inserts a new Part 4A into the Principal Act, which enables authorised persons to require rail safety workers to submit to breath tests, blood tests, and oral fluid tests in various circumstances. Refusing to submit to such a test may amount to an offence. These provisions engage a number of rights, discussed below.

Right to freedom from forced medical treatment

Section 10(c) of the Charter provides that a person must not be subjected to medical or scientific experimentation or treatment without their full, free and informed consent. ‘Medical treatment’ in the Charter has been held to have the same meaning as ‘medical treatment in the (now repealed) Medical Treatment Act 1988, which defined medical treatment to include any ‘medical procedure’. This includes a procedure that is based upon the science of the diagnosis, treatment, or prevention of disease or injury, or of the relief of pain, suffering and discomfort.

There is a question about whether drug and alcohol tests (including blood tests, urine tests, oral fluid collection, breath tests and drug impairment assessments) fall within the definition of ‘medical procedure’ for the purposes of the Charter. While these tests clearly can be used for a medical, diagnostic purpose, the purpose in this situation is regulatory in nature, rather than medical.

Even if these tests do fall within the definition of ‘medical treatment’, I consider that any limit on the right to freedom from forced medical treatment is reasonable and justifiable on the basis that it occurs in the context of a regulatory regime, and applies only to rail safety workers, not the general public. Further, the tests are carried out for the important purposes of protecting community safety and ensuring that rail safety work is carried out only by competent persons who are not impaired by drugs or alcohol. I therefore consider that these provisions are compatible with the right in section 10(c) of the Charter.

Right to privacy

The right to privacy is engaged by the provisions authorising tests to be carried out on rail safety workers, as the right includes the right to bodily privacy. However, for the reasons set out above, I consider that any interference with privacy is neither unlawful nor arbitrary. I therefore consider that this right is not limited by these provisions.

Right against self-incrimination

Section 25(2)(k) of the Charter provides that a person charged with a criminal offence has the right not to be compelled to testify against themselves or to confess guilt. I have considered whether the drug and alcohol testing provisions in the bill engage this right. However, as the right has been held not to extend to the taking of physical evidence (such as breath tests, fingerprints and DNA samples under compulsion), in my view it is not engaged by these provisions.

Freedom of movement

Section 12 of the Charter provides that every person lawfully within Victoria has the right to freedom of movement. Various provisions within new Part 4A involve minor limitations on this right by enabling authorised persons to require rail safety workers to attend at certain places or remain at certain places for the purposes of alcohol or drug testing. To the extent that the right to freedom of movement is limited by these provisions, I consider the limit to be reasonable and justifiable in the interests of protecting community safety by providing for appropriate drug and alcohol testing of rail safety workers.

Hon. Jaala Pulford MP

Roads

 Ms MIKAKOS (Northern Metropolitan—Minister for Health, Minister for Ambulance Services) (13:12): 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:

Victorians deserve a safe, efficient and reliable rail system that gets them to work and play, facilitates the movement of freight, supports economic development and improves social mobility and inclusiveness.

The Andrews Government is addressing gaps and building capacity in our rail system through the Big Build and is investing in new rolling stock to improve reliability, operational efficiencies and the quality of public transport services.

The Bill will complement the significant investments that are being made by reducing administrative complexity and eliminating fragmentation of regulatory responsibility between Transport Safety Victoria and the Office of the National Rail Safety Regulator. It will eliminate duplication of administrative systems and enable cost savings to be progressively realised. Importantly, it will enable the final stage of regulatory harmonisation benefits to be delivered to the rail industry.

This Bill will complete the national reform of the regulation of rail safety, a process that began in 2011 when the Council of Australian Governments signed an Intergovernmental Agreement to establish a national scheme of rail safety regulation.

This led to the approval of the Rail Safety National Law as an applied laws scheme, hosted by South Australia.

Under the Rail Safety National Law, the Office of the National Rail Safety Regulator (ONRSR) was established in July 2012 to administer rail safety regulation and enforcement across Australia. ONRSR commenced operations on 20 January 2013.

Victoria entered into this single national regulatory scheme for rail safety in May 2014 through the enactment of the Rail Safety National Law Application Act 2013, which applied the national law as the law of Victoria.

At that time there was an underlying concern about moving immediately to a direct delivery model, given the unproven record of the national regulator, and the size and complexity of Melbourne’s metropolitan rail systems.

For these reasons the Victorian Application Act provided for rail safety regulation in Victoria to be delivered through a Service Level Agreement between Transport Safety Victoria and ONRSR. New South Wales adopted a similar approach.

Since 2014, ONRSR practices and systems have matured. It has been able to demonstrate itself as an efficient and effective risk-based regulator that gives due regard to state issues and is responsive to State and Territory Government needs and priorities.

Following an independent review of safety risks, organisational risk management systems and ONRSR competencies and capacities the Victorian Government has assurance that ONRSR can take full responsibility for rail safety regulation in Victoria without any risk of a diminution of safety.

The review found that:

•   Safety standards in Victoria would be more efficiently regulated using a direct service delivery model by removing the duplication of business systems, equipment and administration by TSV and ONRSR.

•   A direct service delivery model may also be more effective as it would provide clearer, single point accountability for the outcomes of rail safety regulation in Victoria, and assist in the development of a single, positive culture within ONRSR.

•   ONRSR’s current organisational structure is appropriate to manage the transition of the TSV into a direct delivery model and ONRSR’s governance and risk frameworks and its corporate business systems are sufficiently mature to ensure that rail safety performance is maintained, and where possible, improved.

•   The provisions of the National Law and governance arrangements overseen by the Ministerial Council provide sufficient mechanisms for the Victorian Minister to have no less visibility and control of rail safety regulation in Victoria under a direct delivery model.

The regulation of trams and a proportion of tourist and heritage railways in Victoria continue to be regulated locally under the Rail Safety (Local Operations) Act 2006. The independent review considered whether Victorian trams and local tourist and heritage railways should also be regulated by ONRSR as is the case in other states.

The independent review found that:

•   The regulation of trams and local tourist and heritage operations would be more efficiently and effectively delivered under the national scheme.

•   Tram operations have significant differences in risk profile and engineering, technical and operational standards than heavy rail systems.

•   A competent regulator needs to have sufficient skill and experience to understand these differences for the purposes of assessing an operator’s competence and capacity to manage their risks.

•   On the assumption that relevant TSV staff will transfer to ONRSR under a direct delivery model, ONRSR would have available to it no less skills, knowledge and expertise than is currently dedicated to regulating tram operations in Victoria.

•   ONRSR would bring additional skill and experience to the regulation of trams and Tourist and Heritage operations in Victoria.

The findings of the review have given the Victorian Government assurance that the time is right to complete to transition to national regulation. We expect the national regulator to deliver on its promises and we are confident that it can.

The Bill implements the transfer of all rail safety service delivery and regulatory functions from TSV to ONRSR by repealing provisions in the Rail Safety National Law Application Act 2013 (the Application Act) that require an effective service level agreement to be in place.

The Bill also:

•   increases the scope of the Application Act so that it provides for trams and tourist and heritage railways to be regulated by ONRSR;

•   removes derogations from the national law relating to data protection and privacy, the operation of the infringements scheme under the national law, differences in definitions and treatment of different facilities (e.g. freight terminals);

•   specifies transitional provisions to ensure that there is continuity of regulatory activities when regulatory responsibilities are transferred from TSV to ONRSR and new service delivery responsibilities come into effect;

•   repeals the Rail Safety (Local Operations) Act 2006, which currently applies to trams in Victoria and some tourist and heritage rail operators that are not currently regulated under the national scheme;

•   makes consequential changes to the Transport (Safety Schemes Compliance and Enforcement) Act 2014 to remove references to Victorian transport safety officers enforcing rail safety laws; and,

•   modifies the drug and alcohol provisions currently contained in the Rail Safety (Local Operations) Act 2006 and transfers them to the Application Act.

Finally, in recognition that the transfer of regulatory responsibilities from TSV to ONRSR will bring about significant changes to the level of TSV responsibilities, the Bill makes changes to the Transport Integration Act 2010 that align the level of influence and control the Minister has over TSV with that which the Minister has over the Commercial Passenger Vehicles Commission and other similar transport sector agencies.

In conclusion, the safety of public transport users is of the utmost importance.

If the system is not safe, or perceived to not be safe, then the use of the rail system will diminish, detracting significantly from the investments that are being made in response to growing transport demands.

The Victorian Government has confidence that the consolidation of rail safety regulatory responsibilities, skills and knowledge will improve the oversight of our railways and bring about improvements to rail safety over time. It will also improve consistency in regulatory practices, and in turn reduce compliance costs for the industry.

I commend the Bill to the house.

 Mr RICH-PHILLIPS (South Eastern Metropolitan) (13:13): I move, on behalf of Mr Davis:

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

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