Alert Digest No. 12 of 2010 - Parliament of Victoria...Alert Digest No. 12 of 2010 Tuesday, 31 August 2010 Bail Amendment Bill 2010 Confiscation Amendment Bill 2010 Education and Training

Alert Digest No. 12 of 2010

Tuesday, 31 August 2010 Bail Amendment Bill 2010

Confiscation Amendment Bill 2010 Education and Training Reform Amendment (Skills) Bill 2010

Fair Trading Amendment (Australian Consumer Law) Bill 2010 Justice Legislation Further Amendment Bill 2010

Marine Safety Bill 2010 Occupational Licensing National Law Bill 2010 Residential Tenancies Amendment Bill 2010

Road Legislation Miscellaneous Amendments Bill 2010

Ministerial Correspondence Firearms and Other Acts Amendment Bill 2010

Juries Amendment (Reform) Bill 2010 Personal Property Securities (Statute Law Revision and Implementation) Bill 2010

Primary Industries Legislation Amendment Bill 2010 Private Security Amendment Bill 2010

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Scrutiny of Acts and Regulations Committee

Bail Amendment Bill 2010

Introduced 29 July 2010 Second Reading Speech House

29 July 2010 legislative Council

Member introducing Bill Minister responsible Portfolio responsibility

Hon. Justin Madden MlC Hon. Rob Hulls MLA Attorney-General

I The Committee also reported on this Bill in Alert Digest No. 11 of 2010.

Purpose and Background

The Bill-

• amends the Bail Act 1977 (the 'Act') to-

1. restructure the Act with Parts. [3,6, 14, 16 and 18]

2. require a decision-maker to take into account any cultural background or other relevant cultural issues that arise due to the Aboriginality of a person when making a determination under the Act in relation to the person. [4 and 5]

3. clarify and amend the sections relating to conditions of bail [8]/ sureties and deposits, variation of bail, revocatidn of bail, further bail applications and appeals. [6 to 26]

4. abolish the common law and statutory right of a surety to apprehend the principal to bring them before a bail justice or a court. [20]

Note: A surety may still apply to a court to have their liability discharged. (s. 24(1)(b))

• amends the Magistrates' Court Act 1989 to provide a new legislative framework for the appointment, re-appointment qualifications, training, oversight, a code of conduct prescribed in regulations, suspension, retirement of bail justices and acting bail justices. The Bill also provides for the removal of bail justices and acting bail justices by the Governor in Council upon the recommendation of the Attorney-General after an independent investigation. Bail justices are volunteer office holders. [29 to 34]

• makes consequential amendments to these and other Acts.

Content and Committee comment

Conditions of bail ~ Test for initial consideration of bail and test on review

The Bill substitutes a new section 5 concerning conditions of bail including a condition that the accused does not commit an offence while on bail (substituted section 5(3)(b)). [8]

The Bill repeals section 18 concerning further applications for revocation or variation of bail conditions and substitutes a new Part 3 concerning those matters. New section 18AD provides that the court or bail justice may vary the amount or conditions of bail if it is reasonable to do so in all the circumstances including a number of prescribed criteria such as consideration as to the nature and seriousness of the offence, the personal circumstances of the accused, etc. The Committee notes that the tests involved in considering variation of the amount of bail or the conditions of bail differ from the test in considering bail initially. [15] (The Committee reports on this matter in the Charter report below)

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Alert Nos. 1 to 14 of 2010

Charter report

Rights oj people awaiting trial - Bail conditions imposed to reduce likelihood 0/ offending -Restriction on variation oj bail conditions

Summary: Clause 8 permits a condition to be imposed on bail to reduce the likelihood that the accused may commit an offence while on bail. Clause 15 prevents any variation of bail conditions unless the variation is 'reasonable'. The Committee refers to Parliament the question of whether or not these clauses are reasonable limits on the Charter right of people awaiting trial to not be automatically detained in custody, but to have their release subject to guarantees to attend for trial.

The Committee notes that clause 8, substituting existing s. 5, permits a condition to be imposed on bail 'in order to reduce the likelihood that the accused may:

(a) fail to attend in accordance with his or her bail and surrender into custody at the time and place of the hearing or trial; or

(b) commit an offence while on bail; or

(c) endanger the safety or welfare of members of the public; or

(d) interfere with witnesses or otherwise obstruct the course of justice in any matter before the court.

The last three purposes go beyond those permitted by Charter s. 21(6), which provides that 'A person awaiting trial must not be automatically detained in custody, but his or her release may be subject to guarantees to attend for trial'.l

The Statement of Compatibility remarks:

The purpose of ol/owing a decision-maker to impose conditions of bail is to reduce the likelihood that, if released on bail, an accused would: fail to attend court, commit an offence; endanger the safety or welfare of members of the public; or interfere with witnesses otherwise obstruct the course of justice. This purpose is important as it seeks to preserve the integrity of the criminal justice system and to protect the community.

Importantly, clause 8 contains a number of provisions aimed at ensuring that decision-makers impose appropriate conditions of bail, namely:

section 5(4), which requires conditions to be no more onerous in nature and number than required to achieved the purposes in section 5(3) and reasonable, having regard to the nature of the alleged offence and the circumstances of the accused

While the Committee accepts that conditions imposed to reduce the likelihood of danger to others or the justice system are reasonable limits on Charter s. 21(6), it notes that the situation is less clear with respect to conditions to reduce the likelihood of offences that involve neither danger to others nor obstruction of justice, e.g. using drugs in the period between the charge and the trial. While only the Irish Supreme Court has held that preventing future offending is never a legitimate reason to restrict bail/ other overseas approvals of the preventative use of bail have generally involved provisions that expressly limit it to particular categories of offences, such as likely or substantially likely offending, serious offences, specified offences, dangerous offences, offences like the one charged or offences that the defendant has committed

Charter s. 26(1)(b)(c} include guarantees to attend at other stages in a judicial proceeding and, if appropriate, execution of judgment.

The People (Attorney-Genera/) v O'Callaghan [1966]IR 501.

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previously.3 By contrast, clause 8 allows conditions to be set to reduce the likelihood of any offence by the accused.

The Committee also notes that clause 15, inserting a new section 18AD, requires the dismissal of every application to vary bail conditions unless the court or bail justice finds that a variation is 'reasonable ... having regard to all the circumstances'. The Committee is concerned that this test:

• is in entirely different terms to the test for initially setting bail conditions in new section 5

• is expressed in general terms without guidance to its content or purpose. The Supreme Court of Canada has rejected a similarly vague test ('public interest') as giving 'courts unrestricted latitude to define any circumstances as sufficient to justify pre-trial detention'.4

• requires consideration, where relevant, of the same list of factors that must be considered under existing s. 4(3)(d) when determining whether the release of a defendant would be an unacceptable risk

• does not require consideration of either the purposive limitation on bail conditions in new section 5(3) or the proportionality test in new section 5(4)

The Committee observes that initial bail conditions are typically set in circumstances when the defendant has had no legal advice and is highly motivated to secure release. Also, the need and impact of bail conditions is highly changeable. As a breach of a bail condition can lead to a cancellation of bail, clause 18 may engage the right against automatic detention in Charter s. 21(6).

The Committee refers to Parliament for its consideration the questions of whether or not:

• clause 8, by permitting a bail condition to be set to 'reduce the likelihood' of any offending on bail, even if such offending involves no danger to others or obstruction of justice

• clause 18, by subjecting all variations of bail conditions to a general test of reasonableness

are reasonable limits on the Charter's provision that 'A person awaiting trial must not be automatically detained in custody, but his or her release may be subject to guarantees to attend for trial' ..

Confiscation Amendment Bill 2010

Introduced Second Reading Speech House Member introducing Bill Minister responsible Portfolio responsibility

Background

10 August 2010 12 August 2010 Legislative Assembly Hon. Tim Holding MLA Hon. Rob Hulls MLA Attorney-General

The Confiscation Act 1997 (the 'Act') provides for a regime for the confiscation of the proceeds and instruments of crime and property suspected to be tainted in relation to serious criminal activity.

4

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See Matznetter v Austria [1969] ECHR 1, [9] (considering Article 175.1 of the Austrian Code of Criminal Procedure); United States v Salerno, 481 US 789 (1987) (considering 18 USC §3141(a)); R v Morales [199213 SCR 711 (considering Criminal Code (Can.), s. 515(10)(b)); S v Dlamini [1999] ZACC 8, [52]-[53] (considering Criminal Procedure Act 1977 (SA), s. 60(4)(a)) ; aVerfGE 35, 185 (German Constitutional Court, considering Staffprozessordnung, para 112a); See also Constitution of the Republic of

Ireland, Art 40.4.6.

R v Morales [1992] 3 SCR 711.


By their nature the provisions of the Act engage property and other Charter rights and contain powers that are directed at restraining and confiscating property based either following criminal conviction (court ordered and automatic forfeiture) or without a conviction (civil forfeiture). The confiscation scheme is balanced by a range of safeguards in respects to non-offenders who may have an interest in property and also those that may suffer undue hardship as a result of forfeiture, by including measures such as exclusion orders and judicial discretion, designed to protect the interests and rights of persons who may be innocently caught by the impact of the Act.

The Bill includes amendments that substitute a new Part 4 of the Act dealing with civil forfeiture of property in the absence of a criminal charge or conviction. The new Part separates this regime from the conviction based regime (court ordered and automatic forfeiture) in Part 3 of the Act. The Bill expands the reach of civil forfeiture orders by including property that is likely to be used in future crime.

Purpose

To Bill amends the Confiscation Act 1997 (the 'Act') to-

1. insert a new 'objects' section of the Act section outlining the underlying policy aims of the legislative confiscation scheme, namely to deprive persons of the proceeds and instruments of crime, to deter offending and to disrupt criminal activity by preventing the use of tainted property in further offending. [5]

2. expand the scope and application of Victoria's asset confiscation scheme by providing for tainted property substitution declarations in automatic forfeiture cases (Schedule 2 offences). These declarations allow courts discretion to substitute an offender's lawfully acquired property for property that was tainted by the offence but which is not available for forfeiture. The example given is that of a drug dealer who carries out criminal activity in a rented house in an effort to protect their own house from forfeiture. [19]

3. clarify that a pecuniary penalty order incurs penalty interest as though it were taken to be a judgement debt. [23]

4. provide a new general anti-avoidance power to allow courts to set aside a transaction or arrangements designed to defeat the Act's operation. [31]

5. redefine the availability of automatic and civil forfeiture to serious fisheries and money laundering offences. The amendments expresses fisheries offences in terms of quantity rather than market value of the fish involved and makes money laundering an offence in its own right without the need to show some related criminal offence. [32]

6. clarify the duration of a freezing order is 3 business days and other amendments related to freezing orders. [16, 46 to 48]

7. clarify that derivative-use immunity applies to a number of provisions under the Act (sections 19E, 99 and 36T) that require a person to provide information. [12,24 and 49]

8. repeal provisions for civil pecuniary penalty orders (see note 3 below). [53]

9. improve existing information gathering powers to require a person who is given notice of a restraining order and who claims an interest in the property to state the nature and extent of the interest. The Bill also provides for a deferral of this requirement in circumstances where the giving of the information may be prejudicial to a persons trial. [8 to 11]

10. provide that prescribed persons may issue information notices to financial institutions for the purpose of determining whether property is worth restraining and also the purpose of maintaining and managing property. [25 to 27, 29]

11. substitute a revised Part 4 of the Act to clarify and improve the operation of the civil forfeiture powers. The Bill expands the application of the regime to encompass property that is likely to be used in future

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offending. As with the conviction based regime the new Part 4 makes provision for restraining orders, exclusion orders and forfeiture orders. The Bill also inserts a new definition for derived property for civil forfeiture cases. (see Notes 1 and 2 below) [34 to 38 and 49]

Notes:

1. Civil forfeiture order - from the Second Reading Speech - The civil and canviction-based forfeiture powers in the Act, while procedurally similar, are conceptually distinct. Civil farfeiture focuses on property 'tainted' by serious criminal activity, and enables farfeiture to occur in the absence of a criminal charge or conviction. Civil forfeiture is remedial in nature, ;n that it disgorges 'tainted' praperty from those who would otherwise benefit fram it. It is also preventive in its purpose, by precluding such property from being used in further criminal activity. By contrast, conviction-based forfeiture focuses on the conduct and property interests of an accused person and may have a punitive effect.

2. Civil forfeiture order - from the Statement of Compatibility - ... Civil forfeiture proceedings are in rem. An application is made in respect of property, rather than being directed toward a particular person. While property is restrained or forfeited on the basis it is suspected to have been used, or is likely to be used, in connection with unlawful activity or is the proceeds of crime, the proceedings are not aimed at establishing the guilt of any individual and the Bill makes clear that it is not necessary to identify a particular individual as having committed a criminal offence (new section 36K(3)). An application for an exclusion order considers matters such as whether the applicant: knew or was Wilfully blind as to the commission of the offence; knew the property would be or was likely to be used in the commission of an offence; acquired the property without knowledge and in circumstances such as not to arouse a suspicion that the property was tainted property or derived property (new sections 36V and 40B).

The purposes of the scheme are remedial and preventative, rather than punitive. The civil forfeiture scheme is aimed at disgorging ill-gotten gains and at removing instruments of crime so they cannot be available for use in future offences, rather than imposing punishment. The scheme also has restitutionary and compensatory purposes in that it ensures that restrained property is first made available to satisfy victims restitution and compensation orders that may be made under the Sentencing Act 1991 (new section 36ZA).

The sanctions involved in the civil forfeiture scheme are also not so serious as to render the scheme criminal or punitive. While very large sums of money and valuable property may be restrained and forfeited, there is no conviction or imprisonment. Further, there are a number of safeguards in the Act that prevent the scheme from operating in an unduly harsh manner. These include: the power of the Court to direct the payment of living or business expenses out of restrained property (new section 36H(4)); the ability to apply for an exclusion order (new sections 36U to 36V and 40A to 40B); and the power of the court to exclude property from civil forfeiture where it would otherwise cause hardship (new section 38).

3. Civil pecuniary penalty orders - Division 2 of Part 8 of the Act (sections 63 to 66) currently provides a regime for the DPP to apply to the Supreme Court for a civil pecuniary penalty order irrespective of whether the charge had been withdrawn or finally determined. The Supreme Court may make a determination on the balance of probabilities that the defendant committed a Schedule 2 offence. The Second Reading Speech remarks that these provisions have not been used and may not be consistent in all respects with the Charter.

Extracts from the Second Reading Speech -

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The Bill also expands the availability of automatic and civil forfeiture for serious fisheries and money laundering offences. ... the Bill amends the Act to express automatic and civil forfeiture thresholds for fisheries offences in terms of the quantity, instead of the value, of fish involved. This averts difficulties in establishing the market value of fish - difficulties that risk letting commercial poachers

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off the hook. The new threshold also better reflects the level at which profit motivated offending occurs.

The Bill also makes the automatic and civil forfeiture powers available for any money laundering offence that meets the relevant monetary threshold. Currently, authorities must establish that the monetary threshold has been met and that the laundered funds themselves relate to a serious criminal offence. The amendment acknowledges that money laundering is a serious crime in its own right, regardless of how the dirty money was made .

... the Bill inserts a general anti-avoidance power into the act. Essentially, this power will allow a court to declare a scheme or tronsaction to be void if satisfied that its purpose is to defeat the operotion of the Act.

.. the Bill expands the application of tainted property substitution powers to apply to automatic forfeiture .

... the Bill will require a person who is given notice of a restraining order to not only declare whether he or she has an interest in restrained property, but to state the nature and extent of such interest.

The Bill also expands the ambit of information notices under the Act. ... These changes will help authorities to determine whether it is worth restraining a particular property and to manage property appropriately. ... the bill will enable prescribed persons to request the production of documents to assist with property management and maintenance. In practice, the prescribed persons will be senior Department of Justice officials who are responsible for managing restrained property to ensure that its value is preserved .

... clarifying that a derivative use immunity applies to a number of provisions under the Act that require persons to provide information, following the Supreme Court's decision in DAS v. Victorian Human Rights and Equal Opportunity Commission [2009] VSC 381; and

Changes to civil forfeiture

... The Bill substantially re enacts the civil forfeiture provisions in the Act, clearly separating them from the conviction-based regime and making civil forfeiture easier to understand and apply .

... The Bill expands the application of civil forfeiture powers to encompass property that is likely to be used in future offending.

These amendments will also clarify and reinforce the way in which the relevant rights under the Charter of Human Rights and Responsibilities Act 2006 apply in civil for/eiture proceedings.

The Bill also repeals the civil pecuniary penalty order provisions from the Act, which have never been used in practice and which may not be compatible with the Charter in all respects.


Delayed commencement

The Bill provides for a forced commencement provIsion of not later than by 1 January 2012. The explanatory memorandum notes that this will allow time to make associated regulatory changes consequent upon the amendments in the Bill. [2]

lVon-conviction based civil forfeiture regime

The Bill substitutes a revised Part 4 of the Act to clarify and improve the operation of the civil forfeiture powers. As with the conviction based regime {forfeiture on court order and automatic forfeiture} the new Part 4 makes provision for restraining orders, exclusion orders and forfeiture orders (see Notes 1 and 2 above). [49]

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Rights and freedoms - Civil forfeiture scheme - Absence of criminal conviction - Whether punitive or remedial and preventative in nature

The Committee notes the Statement of Compatibility which provides citations of cases from comparative foreign jurisdictions where civil forfeiture schemes of a similar nature are in effect and where such schemes have been held not to impose criminal sanctions. The Committee notes thot the regime does not involve a conviction or imprisonment and further notes a number of safeguards contained in the Bill that prevent the scheme from operoting in an unduly harsh manner, including exclusion orders, relief from hardship and other measures noted in note 2 above.

The Committee considers that the Victorian scheme may be properly characterised as not imposing criminal sanctions and is civil and non-punitive in nature.

Charter report

Confiscation schemes - Statement of compatibility

The Committee notes that the statement of compatibility contains a thorough and balanced account of the very complex human rights issues raised by schemes to confiscate crime-tainted property.

The Committee makes no further comment.

Education and Training Reform Amendment (Skins) Bill 2010

Introduced Second Reading Speech House Member introducing Bill Portfolio responsibility


10 August 2010 12 August 2010 Legislative Assembly Hon. Bronwyn Pike MLA Minister for Education

The Bill amends the Education and Training Reform Act 2006 (the 'Act') to

1. facilitate the implementation of the Australian Quality Training Framework (AQTF) in relation to the provision of vocational education and training.

2. include a statutory guarantee in the Act of vocational education and training for a governmentsubsidised course for students meeting certain criteria. [3]

3. widen the functions and composition of the Victorian Registration and Qualifications Authority (VRQA). [5 and 6]

4. to strengthen the regulatory system for training organisations. [8 to 23 and 49]

S. require registered training organisations to have a single purpose of providing education and training.

[24 to 28]

6. require registered training organisations to have appropriate complaint handling processes and to establish a register of complaints and provide for the referral of unresolved complaints to prescribed resolution and student welfare process. [28 to 34]

7. provide that standard contract terms must be included in contracts for the provision of services by

registered training organisations. [35 and 36]

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8. provide for additional offences relating to registered training organisations and the issue of infringement notices in relation to offences committed by those organisations. [44 and 46 to 48]

9. strengthen enforcement powers in relation to registered training organisations. [37 to 44]

10. make various governance reforms to the Victorian Skills Commission, TAFE institute boards and the Adult, Community and Further Education Board. [50 to 68]

The Bill also makes statute law revision amendments to a number of University Acts. [71 and the Schedule]

Extracts from the Second Reading Speech -

Protection of students

... The Bill will enable regulations to prescribe standard terms that must be included in contracts between providers and their students, covering matters such as fees and refunds, rights to compensation, cooling-off periods, resolution of disputes, and the award of qualifications. Further, these tair contract terms' may apply for a student's benefit even if a provider did not put them in the contract the student actually signed.

The Bill will require commercial or tee for service' providers of vocational education and training to establish an internal complaints system as a condition of registration. Further, the Bill will enable the Minister to apprave industry-based disputes handling systems, to which students may refer unresolved complaints.

... The Bill also formalises the role of the VRQA in investigating student complaints.

The Bill will authorise the VRQA to publish consumer warnings, similar to those issued by Consumer Affairs Victoria, to warn prospective students of the risk of dealing with a particular training organisation.

Regulation of vocational education and training

The policy framework for the regulation of vocational education and training is nationally agreed through the AQTF. The Education and Training Reform Act establishes the legal rules to put that framework into effect in Victoria. This Bill will add a 'statement of intent' provision to make this objective clear .

... The Bill will confer power to make regulations that set out a mandatory Code of Conduct for providers of vocational education and training in this state. The code may cover dealings with students (including handling student complaints), standards for accuracy and completeness of marketing materials, the information that providers must give to prospective students, public liability insurance, and a number of other matters.

The Bill will enhance the regulatory and enforcement rale of the Victorian Registration and Qualifications Authority, or 'VRQA'. The criteria that the VRQA applies in registering or deregistering providers of vocational education and training will be set out more clearly and in more detail. These will include criteria for assessing a provider's viability and whether its management are fit and proper to carry out their responsibilities.

The VRQA's inspectors will, subject to appropriate civil liberties safeguards, have increased capacity to carry out inspections to check whether a provider is complying with relevant laws . ... The new regulatory powers range from issuing official warnings, to negotiating enforceable undertakings from a provider, to issuing infringement notices as an alternative to prosecution in open court. The Bill will also create several new offences for breaching prescribed standards of conduct or for not complying with reqUirements in relation to the fair treatment of students.

Governance reforms

The Bill will alter the membership and functions of the Victorian Skills Commission.

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... The Bill will also improve governance and accountability of the state's TAFE institutes, which deliver vocational educatian and training.

Skills for Life - the Victorian training guarantee

The Bill will set aut, in law, the Victorian government's guarantee of subsidised training for eligible Victorians.


The Bill provides that the Act comes into operation by proclamation but not later than by 1 January 2013. In respect to the delayed commencement the Committee notes this extract from the explanatory memorandum -

This will allow time for the necessary administrative arrangements to be put in place prior to commencement, including the recruitment and training of the staff that will carry aut new functions under the legislation. Further, it is intended that, relying an the powers conferred by se~tion 13 of the Interpretation of Legislation Act 1984, same implementation arrangements will be made before provisions are proclaimed. It will also allow time for institutions and registered training organisations (RTOs) to arrange to comply with the new legislative requirements before they take effect.

The Committee notes the useful and detailed explanatory memorandum concerning this Bill.


Fair Trading Amendment (Australian Consumer Law) Bill 2010


Purpose

10 August 2010 12 August 2010 Legislative Assembly Hon. Bronwyn Pike MLA Hon. Tony Robinson MLA Minister for Consumer Affairs

The Bill inserts a new Part 2 in the Fair Trading Act 1999 (the 'Victorian Act') which will apply the Australian Consumer Law (the 'uniform law') as a law of Victoria from 1 January 2011. The Bill will repeal provisions of the current Victorian Act that are to be superseded by the uniform law. The Bill makes related changes and consequential amendments, repeals and provides for transitional and savings provisions in the Victorian Act and other Victorian Acts. (Refer to Charter report in respect to the human rights impact of applied laws)

Background

The Commonwealth Parliament has passed two Acts that establish the new uniform law namely the Trade Practices Amendment (Australian Consumer Law) Act (No.1) 2010 (Cth) and the Trade Practices Amendment (Australian Consumer Law) Act (No.2) 2010 (Cth) (the No.2 Act). Schedule 1 of the No.2 Act inserts a new Schedule 2 to the Trade Practices Act 1974 (Cth) which provides for the uniform law. The No: 2 Act also renames the Trade Practices Act 1974 (Cth) as the Competition and Consumer Act 2010 (Cth).

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The uniform law will replace the 9 existing State, Territory and Federal laws regulating unfair practices, unfair contract terms, product safety schemes, reporting requirements for suppliers, product safety bans and product recalls, implied conditions and warranties, civil penalty levels, core enforcement powers.

The uniform laws are based broadly on the consumer protection provisions in the current Trade Practices Act 1974 (Cth), and also on the best practice elements of various consumer protection laws of the States and Territories provided for in their respective Fair Trading Acts.

Overall, 14 best practice proposals were adopted within the uniform .law. Eleven of these originated from the Victorian Fair Trading Act. These include -

1. a prohibition on false or misleading testimonials;

2. a provision clarifying that a consumer is not liable to pay for unsolicited services;

3. a requirement for specified consumer agreements to be transparent;

4. a statutory right to an itemised bill or receipt for goods or services supplied above a certain value; and

5. provisions clarifying the intended interpretation of laws relating to pyramid selling.

6. laws protecting consumers against unfair contract terms in consumer contracts.

7. laws on unsolicited consumer agreements, which incorporate many features taken from the current Victorian provisions governing contact sales and telephone agreements.

Key points from the Second Reading Speech

1. The Commonweolth Parliament has passed two Acts to establish the framework for the new Australian Consumer Law.

2. The Australian Consumer Law to apply in Victoria will comprise of Schedule 2 to the Competition and Consumer Act of the Cammon wealth 2010 (formerly the Trade Practices Act 1974), and regulations made for the purpose of that Schedule.

3. The intergovernmental agreement sets out the procedures for the implementation of future amendments to the Australian Consumer Law or related regulations, and allows all governments to prapose amendments.

4. The Director of Consumer Affairs Victoria will be the 'regulator' for the purposes of the enforcement and administration of the Australian Consumer Law in Victoria.

S. The Bill sets out the jurisdiction of Victorian Courts and Tribunals to deal with disputes arising under the Australian Consumer Law.

6. The Bill repeals those Parts and pravisions of the Victorian Act that will be replaced by new Australian Consumer Law provisions and, where appropriate, amends the remaining provisions of the Victorian Act to ensure consistency.

7. The enforcement and administration Parts of the Victorian Act (Parts 1, 6, 7, 8, 9, 10 and 11) will, with some modificatian, continue as the framework for the administration of fair trading and consumer protection in Victoria.

8. Part 2C of the Victorian Act will also continue to govern frustrated contracts in Victoria and there is no change proposed for the current Part SA which currently deals with fair credit reporting.

9. The Bill repeals Part S of the Victorian Act dealing with lay-by agreements which will now be addressed by the uniform laws.

10. Part 6 of the Victorian Act will also continue to operate. The Part enables the preparation and approval of codes of practice.

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11. The Bill amends Parts 7 and 8 (Administration, Powers of the Director) to harmonise those provisions with the uniform law and to remove powers to be contained in the uniform laws. The 'show cause notice' section (106B) will however be retained as there is no equivolent in the uniform laws.

12. The Bill establishes the Victorian Consumer Law Fund into which will be paid penalties awarded under the uniform law.

13. Part 9 of the Victorian Act will be retained to ensure that Victorian consumers have continued access to the VCAT as a low-cost forum to resolve disputes arising under the Australian Consumer Law and the matters covered by the remaining parts of the Victorian Act.

14. The Bill also amends the inspection powers in Part 10 of the Fair Trading Act to ensure they align with the uniform laws.

15. The uniform laws will be enforced through a multiple-regulator approach, the provisions of Part 11 of the Fair Trading Act will be used for the enforcement of the uniform laws in Victoria.


Rights or freedoms - Privilege against self-incrimination - Application of Fair Trading Act 1999 enforcement provisions to the uniform laws - Immunity does apply to derivative use or to documents

1. The Committee notes the Statement of Compatibility (the Statement) in respect to a number of provisions that engage the privilege against self-incrimination applied by clause 9 of the Bill (applying the uniform law as law in Victoria). The Statement provides that current section 106HA in Part 8 of the Victorian Act which deals with the power to obtain information and documents to monitor compliance will apply to these applied uniform laws and that section only provides for direct use immunity. Further section 1061 of the Victorian Act covers the powers of the Director to obtain information, documents and evidence where the Director intends to investigate a contravention of the Act and again this section covers only direct use immunity and does not extend to a derivative use immunity.

In respect to the absence of derivative use immunity for other evidence uncovered in the course ofthe compelled disclosure regime in the Act the Statement remarks 'this means that such further evidence is permitted to be used in a criminal prosecution against the person which thus arguably limits the right against self-incrimination.

The Committee notes the Charter s. 7(2) analysis for the rationale of not providing a derivative use immunity in the regulatory environment covered by the legislation. The Committee has not reported on the human rights compatibility of s. 1061 in this context, as it considers that the Bill does not extend the Director's present powers with respect to self-incrimination.

Note: The Committee address the Charter compatibility of s. 1061 in its report on the Residential Tenancies Amendment Bill 2010, below.

2. The Statement of Compatibility also reports on the general self-incrimination provision (section 133) in Part 10 of the Act (inspection powers) and notes the absence of the privilege for documents required to be produced under the Part. The Committee notes the Charter s. 7(2) analysis forthe rationale of not providing immunity in respect to documents in the trade and commerce regulatory environment

covered by the legislation.

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Rights or freedoms - Presumption of innocence - Defendant to prove legal onus on balance of probabilities

Rights or freedoms - Presumption of innocence - Reverse evidentiary onus - Exceptions, proviso and rebuttal

Evidential onuses

The Statement of Compatibility provides details of a number of sections in the uniform law that require a defendant to point to some evidence of an exception, proviso or to rebut a presumption. The Statement remarks that none of the defences impose a legal burden on a defendant and the evidentiary matters are those that are within the peculiar knowledge of the defendant justifying the reverse evidentiary onus in a regulatory environment where, absent the reverse onus, enforcement of compliance would be ineffective.

Legal onuses

Sections 157, 207, 208, 209, 210 and 211 ofthe uniform law require defendants to prove certain things in order to make out the relevant defence. Sections 162 and 163 require a defendant to prove something in order to be exempt from the application of the relevant provision. By placing a burden of proof on a defendant, these provisions may limit the right to be presumed innocent.

Extracts from the Statement of Compatibility-

... the courts have held that it may be subject to limits, particularly where, as here, the relevant offences are public weI/are offences of a regulatory nature; and the defences and exceptions are enacted for the benefit of defendants so that they can escape liability in certain circumstances.

The purpose of imposing a legal burden is to ensure the effectiveness of enforcement and compliance with the Bill by enabling the offences to be effectively prosecuted and to thus operate as an effective deterrent and protection of the public.

The defences and the associated legal burdens reflect a policy of imposing obligations upon persons who engage in consumer activity to ensure compliance with the Act. It is intended to make persons responsible for any breaches that occur, not just deliberate breaches .

.... In addition, most of the defences relate to states of knowledge or belief that are solely within the knowledge of the accused, or establishing due diligence. Conversely, it would be difficult and onerous for the Crown to investigate and prove these elements beyond reasonable doubt. Therefore, it is appropriate for the burden to rest with the defendant.

... The imposition of a burden of proof on the defendant is directly related to the purpose of enabling the relevant offence to operate as an effective deterrent while also providing suitable defences and exceptions in circumstances where the contravention was not deliberate. A legal burden is imposed to avoid evidentiary problems that may arise, particularly where the relevant facts are within the knowledge of the accused, and which may lead to a loss of convictions.

Charter rreport

Application of Commonwealth laws - Operation of the Charter - Practice Note No • .3

Summary: Clause 9 applies Commonwealth provisions as laws of Victoria. The Committee will write to the Minister seeking further information as to the application of the Charter.

The Committee notes that clause 9, inserting a new section 9(1)(a), applies the 'Australian Consumer law text' (defined by new section 8 to mean schedule 2 of the Competition and Consumer Act 2010 (Cth) and regulations made under s. 139G of that Act) 'as a law of Victoria.

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While the statement of compatibility addresses the compatibility of the Australian Consumer law with the Charter, the explanatory material does not address whether or not the applied laws will be subject to the Charters provisions on scrutiny, interpretation, declarations of inconsistent interpretation or obligations of public authorities. In its recent Practice Note No.3, the Committee remarked:

While the passage of national co-operative laws is a matter for Parliament, the Committee considers that the explanatory material to Bills creating or enhancing such schemes should fully explain their human rights impact.

The Committee would prefer that the explanation have two components: ... Second, the explanatory material may set out whether, and to what extent, the Charter's operative provisions (including its provisions for scrutiny, interpretation, declarations of inconsistent interpretation and obligations of public authorities) will apply under the national cooperative scheme.

The Committee will write to the Minister seeking further information as to the application of Charter ss. 28, 29, 32, 36 and 38 to the Australian Consumer Law, as applied in Victoria by new section 9(1)(a).


Justice Legislation Further Amendment Bill 2010


Purpose

10 August 2010 12 August 2010 legislative Assembly Hon. Tim Holding MLA Attorney-General and other Ministers

The main purposes of the Bill are to amend the-

1. Crimes Act 1958 in relation to the digital evidence capture scheme and its impact on agencies other than Victoria Police that conduct investigations of indictable criminal matters. The Bill amends the definition of 'authorised person' who are covered under the Act for recording retrieval and storage purposes, to include investigating officials and persons engaged by a Department or agency (other than members of the police force). The Bill clarifies that a recording may be played for purposes connected with civil or criminal proceedings or an inquiry before a court or tribunal and places recording retention obligations (minimum 7 years) on Departmental heads where the investigating official is not a member of Victoria Police. The Bill provides transitional arrangements such as the amendments only apply to recordings made after the commencement of the amendments. [3 to 6] (Refer to Charter report below)

2. Liquor Control Reform Act 1998 to insert a new Part 8B in the Act to enable the Director on receipt of advice from a fire safety inspector to order the immediate closure and evacuation of licensed premises where a serious fire threat to the health or safety of any person on those premises or in close proximity to the licensed premises is present or could arise. The premises would remain closed until the threat has been rectified by the licensee or permittee. The provisions allow fire safety inspectors to enter and inspect licensed premises at any time without notice and without a warrant in circumstances where there are reasonable grounds for suspecting serious safety of health threats. Pending further review of the Act the new Part 8B sunsets two years after its commencement. [7 to 10]

3. Drugs, Poisons and Controlled Substances Act 1981 (the 'Ac!') to ban the sale, supply and display of ice pipes in Victoria. The amendments also make provision for the seizure confiscation, forfeiture and

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-- .... _--------

Alert Digests Nos. 1 to 14 of 2010

destruction of these items. The prohibition is currently covered by a Ministerial banning order under the Fair Trading At:t 1999. The inclusion of these prohibitions in the Act is considered necessary as the new harmonised Australian Consumer Law (see report on Fair Trading Amendment (Australian Consumer Law) Bill 2010 also in this Alert) which Victoria intends to adopt, does not include this

prohibition. (Refer to the Charter report below) [11]

4. Children, Youth and Families Act 2005 with the objective of reducing time spent by parties at the Children's Court to remove the 21-day limit on the duration and extension of certain interim accommodation orders and remove the requirement for undertakings to be signed or entered into for certain interim accommodation orders. [12 to 14]

5. Corrections Act 1986 to allow sheriffs and contracted staff working in the Sheriffs Communication Centre to access, disclose and make use of particular offender information held by Corrections Victoria for the purpose of executing infringement warrants. The objective of this information sharing is to locate an offender's current address, assist in the assessment of the suitability of an offender for a community work permit (in default of payment of infringement penalties) and to assess any potential enforcement risks posed by the person. [15]

6. Metropolitan Fire Brigades Act 1958 and the Country Fire Authority Act 1958 to enable the penalty interest rates applicable to those Acts to change accordingly whenever the Attorney-General fixes a new penalty interest rate by notice under section 2 of the Penalty Interest Rates Act 1983 rather than the current practice of notices in the Government Gazette. [16-18 and 23-26]

7. Emergency Management Act 1986 to correct a cross-referencing error. [19]

8. Fair Work (Commonwealth Powers) Act 2009 to replace a reference to the Equal Opportunity Act 1995 with a reference to the new Equal Opportunity Act 2010. [20]

9. Legal Profession Act 2004 to clarify the Legal Services Board's powers to invest money standing to the credit of the Public Purpose Fund. The amendments have retrospective application.

Note: The explanatory memorandum states that - in order to ensure that there is no doubt of the Board's financial arrangement powers the Bifl provides that those powers existed at the commencement of the Act (12 December 2005). [2,21 and 22]

10. Serious Sex Offenders (Detention and Supervision) Act 2009 to provide that despite the existence of a court suppression order, media organisations may publish the identity and location of an offender if the information is published at the request of police, and publication is in the course of law enforcement functions or in the execution of a warrant or the arrest or apprehension of an offender. [27]

11. Interpretation of Legislation Act 1984 to insert a new Part 6 (Authorised Versions) in the Act to permit Chief Parliamentary Counsel to authorise electronic versions of legislation and statutory rules and make direct electronic versions admissible as evidence in courts. [28]

12. Guardianship and Administration Act 1986 insert a new Part 5A in the Act to enable VCAT to appoint an administrator to manage the estate and financial affairs of missing persons. [29 to 33]

13. Gambling Regulation Act 2003 to make a range of technical amendments to clarify the functions and obligations of the post-20l2 monitoring licensee and gaming venues with respect to the operation of linked jackpot arrangements, extend the powers of the Victorian Commission for Gambling Regulation to make standards with respect to monitoring and gaming under the post 2012 gambling industry structure and amend the wagering tax provisions to give effect to concessional tax arrangements for premium customers. [34 to 53]

Note: The amendments to this Act have a delayed commencement provision of not later than by 1 September 2012 to coincide with the proposed new gambling industry structure commencing in 2012.

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14. Children, Youth and Families Act 2005 and the Infringements Act 2006 to clarify an earlier amendment to provide an extension of time to file a charge sheet in the Children's Court in .children's infringement matters. The amendment will allow more flexibility for children to apply for an internal review rather than proceedings directly to court. The amendments apply retrospectively to internal review decisions served on a child on or after 1 July 2010. [54 to 59]

15. Supreme Court Act 1986, Magistrates Court Act 1989 and County Court Act 1958 and other Acts to provide for uniform statutory immunities for judges and other court officers such as registrars in the exercise of administrative and other functions in courts and the Victorian Civil and Administrative Tribunal. Administrative functions include the issues of warrants, committal proceedings and case assignment. The Bill proposes a uniform and coherent set of statutory immunities based on the existing statutory provisions and established common law principles. the immunity will extend to any administrative actions performed by judicial officers in their official capacity as well as administrative functions performed in their capacity as a persona designata (a person designated individually or by name, rather than as a member of a class). The immunity does not extend to matters un-related to court functions such as occupational health and workplace related laws and responsibilities. [60 to 68]

16. Prostitution Control Act 1994 to insert a new Part 2A in the Act to enable police to issue banning notices to exclude a person for up to 72 hours from a declared area if police suspect on reasonable grounds the person has committed or is committing an offence against section 12{2)(b) of the Act (invite or solicit a person for prostitution). A person may seek a review of a banning notice to a police officer above the rank of sergeant. The provisions also permit the issue of infringement penalty notices. A banning notice will not be able to be issu~d to a person who lives or works in the declared area. A declared area may be created by notice published in the Government Gazette by the AttorneyGeneral pursuant to section 18(4) of the Summary Offences Act 1966 if the Attorney-General is satisfied that conduct contrary to sections 12 or 13 of the Act is frequently occurring in the area. The new regime will operate on a trial basis for one year from the commencement of the provisions. [69]

Content and Committee comment·

Search and seizure powers without consent or search warrant

The amendments made to the Liquor Control Reform Act 1998 include provisions authorising fire safety inspectors to enter and search licensed premises, other than part of a premises used for residential purposes, at any time without prior notice or warrant where there are reasonable grounds for suspecting that there is a serious fire threat (new section 148W). [7]

Presumption 0/ innocence - Reverse evidential onus - De/endant to establish Ireasonable excuse' - Failure to comply with requirement 0/ /ire safety inspector

The amendments made to the Liquor Control Reform Act 1998 includes a provision (new section 148Z) making it an offence to fail to comply with a requirement (assist during search of premises) of a fire safety inspector without reasonable excuse. [7]

Privilege against sel/-incrimination - Requirement to produce documents - Direct use immunity for documents in criminal proceedings but immunity does not extend to derivative use

The amendments made to the Liquor Control Reform Act 1998 include a requirement to give information, a document or assistance to a fire safety inspector undertaking a search of licensed premises (new section 148Y). These assistance requirements are to be read in conjunction with the existing provision in section 130F of the Act governing self-incrimination which provide for the privilege in respect to answering questions, either in writing or orally, but do not allow the privilege for existing documents required to be produced. Where a document is required to be produced a direct immunity is granted in respect to criminal

328


proceedings. The Statement of Compatibility canvasses in some detail the justification for not extending the immunity in respect to use of the document to derivative use immunity. [7]

Charter report

Expression - Offences relating to recordings of police interviews - Transitional provision

Summary: The Committee will write to the Minister concerning an error in the Second Reading Speech and the continuing absence of a transitional provision for the new offences concerning recordings of interviews introduced by the Justice Legis/ation Miscellaneous Amendments Act 2010.

The Committee notes that clause 6, inserting a new section 616 into the Crimes Act 1958, provides for transitional arrangements for Part 2 of the Bill, which in turn makes some minor amendments to offences inserted into the Crimes Act by the Justice Legislation Miscellaneous Amendments Act 2010.

In its report on the Bill for the earlier Act, the Committee remarked that the original scheme:5

lacks any transitional provision. It therefore may apply to existing recordings that have already been disseminated or published. If that is correct, then any non- authorised person who currently possesses such a recording will commit an offence unless they destroy it prior to the bill receiving Royal Assent and a publisher will require permission from a court to republish a previously published recording.

In response to a query from the Committee, the Minister wrote:

It was always the intention that the new regime would apply only to recordings made on or after commencement of the Bill. I am considering whether an appropriate amendment is necessary to clarify this intention. 6

In his Second Reading Speech for the present Bill, the Minister remarked:

Finally, the bill addresses an issue raised by SARC in its Alert Digest No. 13 of 2009 by inserting a new transitional provision that makes it clear the scheme applies to recordings made on or after the commencement of the scheme.

This appears to be a reference to clause 6. However, the Committee observes that new section 616 does not address the scheme inserted by the earlier Bill and does not provide that that scheme only applies to recordings made after the scheme's commencement. Rather, it only provides that the minor adjustments to the scheme by the current Bill apply only to recordings made about the commencement of Part 2.7

The Committee will write to the Minister concerning the error in the Second Reading Speech and the continuing absence 0/ a transitional provision for the new offences concerning recordings 0/ interviews introduced by the Justice Legislation Miscellaneous Amendments Act 2010.

6

Alert Digest No 13 of 2009

Alert Digest No 4 of 2010

The effect of clause 6 is correctly described in the Explanatory Memorandum.

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Property - Offence to display or sell items capable of being used to smoke methylamphetamine - Aluminium foil, spoons and test tubes

Summary: Clause 11 makes it an offence to display or sell ice pipes. The definition of 'ice pipe' potentially includes everyday items such as aluminium foil, spoons and test tubes. The Committee considers that the clause may engage the Charter's right to property.

The Committee notes that clause 11, inserting a new Part VAB into the Drugs, Poisons and Controlled Substances Act 1985, makes it an offence to display or sell ice pipes. The offences carry fines of 240 penalty units and new sections 80HD to 80HH provide for the seizure and forfeiture of such devices.

New section 80HA(a) defines 'ice pipe' to include 'a device:

capable of being used or intended for use or designed for the introduction, or for introducing, into the body of a person the drug of dependence methylamphetamine, by means of smoking or inhaling of smoke or fumes resulting from the heating or burning of methylamphetamine in a crystalline form ...

The Committee notes that the inclusion in the ban of devices 'capable of being used' to smoke methylamphetamine goes beyond the existing Victorian ban under the Fair Trading Act 19898 and equivalent bans in Queensland,9 South Australia10 and Western Australia.ll Only New South Wales has a similar ban.12

The Committee observes that devices 'capable of being used' to smoke methylamphetamine potentially include everyday objects such as aluminium foil, spoons and test tubes. 13 The Committee considers that the offence and forfeiture provisions are therefore potentially so broad and vague in operation that they may engage the Charter right 'not to be deprived of property other than in accordance with law. ,14

The Committee will write to the Minister seeking further information as to whether or not the definition of 'ice pipe' in new section 80HA(a) may include aluminium foil, spoons and test tubes.

The Committee refers to Parliament for its consideration the question of whether or not clause 11, by banning the sale and display of devices 'capable of being used' to smoke methylamphetamine (potentially including all aluminium foil, spoons and test tubes), and providing for theirjorfeiture, is compatible with the Charter's right not to be deprived of property other than in accordance with law.


10

11

12

13

14

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Victoria Government Gazette No S. 11 Thursday 22nd January 2004, which covers only objects 'used, intended for use, or designed for use in smoking'.

Tobacco and Other Smoking Products Act 1998 (Qld), s. 26ZPF(2), providing a defence for devices designed primarily for other uses, and listing aluminium foil, spoons and test tubes as examples of devices that would satisfy the defence.

Summary Offences Act 1953 (SA), s. 9B, covering devices 'apparently intended for use or designed for use in smoking ...

methamphetamine crystals'

Western Australian Government Gazette 17 October 2008 No. 178, which is in the same terms as Victoria's current ban and notes that it covers 'products specifically used for smoking or inhaling methamphetamine'.

Drug Misuse and Trafficking Act 1985 (NSW), s. 11A.

See the examples listed in s. 26ZPF(2) of the Tobacco and Other Smoking Products Act 1998 (Qld).

Cha rter s. 20

Marine Safety Bill 2010


10 August 2010 12 August 2010 Legislative Assembly Hon. Tim Pallas MLA Minister for Roads and Ports


The Bill is for a new principal Act to provide for safe marine operations in Victoria by -

1. imposing a range of safety duties on owners, managers, designers, manufacturers, suppliers of vessels, marine safety infrastructure and marine safety equipment [24 to 29], marine safety workers [3~],

masters and users of recreational vessels [31, 32], passengers on vessels. [33]

2. providing for the registration of vessels. [36 to 44]

3. providing for the licensing and licensing exemptions of masters of recreational vessels and hire and drive vessels. [45 to 61]

4. providing for the regulation and management of the use of, and navigation of vessels on State waters. The provisions include matters such as safe construction certificates, certificates of competency, detention of unsafe vessels and a duty to report incidents. Part 4 also provides enforcement powers including impoundment, immobilisation, seizure, forfeiture and disposal of vessels. The Part further makes provision for embargo notices, infringement notices, disciplinary proceedings against permission holders and owner onus provisions similar to those applying in road legislation. (Refer to Charter report below in respect to the owner onus regime) [62 to 219]

5. requiring port management bodies to engage harbour masters and providing for the licensing of persons to act as harbour masters and the authorisation of persons to act as assistant harbour masters. [220 to 238]

6. providing for the registration of pilotage service providers and the licensing of pilots and requiring the use of pilots in declared parts of State waters. [239 to 257]

7. provh:iing for the functions, duties and powers of the Safety Director and the general administration of the Act. Provide for Ministerial approved codes of practice, regulation making powers and review of decisions by VCAT. [258 to 312]

8. providing for savings and transitional arrangements in respect to licence and other operational matters under the old Act after the commencement day. [313 to 374]

9. making consequential amendments and repeals to the Marine Act 1988, consequential amendments to the Transport (Compliance and Miscellaneous) Act 1983 and consequential amendments to a

number of other Acts. [375 to 420]

The Bill will repeal substantial parts of the Marine Act 1988. The remaining provisions of that Act will deal with drug, alcohol and pollution matters in the context of safe marine operations. The 1988 Act will be renamed as the Marine (Drug, Alcohol and Pollution Control) Act 1988.



The Bill has a default commencement date of 1 July 2012. [2]

The Committee notes that no explanation is given by the Minister concerning the desirability for providing a delayed commencement of more than 1 year from introduction. The Committee draws attention to Practice Note No.1 (2005) concerning delayed commencement provisions.

The Committee will seek further advice from the Minister.

331


Compulsory acquisition of land

The Bill provides the Minister a power to purchase land required for the provision of a navigation aid for State waters. Any compulsory acquisition must be accordance with the procedures for compensation in the Land Acquisition and Compensation Act 1986. [271]

Forfeiture and sale of vessels

The Bill provides a regime for the seizure, impoundment, immobilisation, forfeiture and sale of recreational vessels. The provisions include compensation where a person is found not guilty or the charges not proceeded with. Relevant appeal rights to the Magistrates' Court also apply. The provisions also provide for third party protections against forfeiture orders. [Part 4.2]

Reverse legal onus

The Bill prides a number of provisions that create a legal onus for a defendant to prove on the balance of probabilities certain defences.

1. Operation of a vessel in contravention of an embargo notice

A person must not operate or permit the operation of a recreational vessel in contravention of an embargo notice and provides that an accused can escape liability if she or he can prove, on the balance of probabilities, that she or he did not know, and it was not reasonable for her or him to know, that an embargo notice was issued in respect of the vessel. [154(5)]

2. Owner onus

The Bill provides for an 'owner onus' regime similar to that found in road legislation whereby the owner of a vessel is presumed to be the operator of that vessel, for the purpose of offences involving the unlawful operation of a vessel. The regime permits the owner of a vessel to make a statutory declaration in the form of a 'known user', 'illegal user', 'sold vessel' or 'unknown user' statement to escape liability for an offence (clause 178). In turn a person who has been nominated in a known user or sold vehicle statement can themselves make a nomination rejection statement (clause 179).

Where proceedings are initiated against a person, they have a defence if they prove, on the balance of probabilities, that-

• such a statement was made and was accepted, or ought to have been accepted, by an . enforcement officer;

• that the officer should not have cancelled the acceptance of the statement on the basis that the nomination was incorrect; or

• where a person had been nominated as responsible and had furnished a nomination rejection statement, the officer ought to have been satisfied that the nomination was incorrect (clause 181). [Part 4.7 - sections 174 to 182] (Refer to Charter report)

3. Failure to comply with a direction of a transport safety officer

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The Bill amends Transport {Compliance and Miscellaneous} Act 1983 (inserting new section 228ZBA(3) to provide that it is an offence to fail to comply with a direction of a transport safety officer to do anything necessary to enable the effective and safe detention of a vessel. New section 228ZBA(S) provides that it is a defence to the charge if the accused can prove on the balance of probabilities that the direction or its subject matter was outside of the scope of the business or other activities of the accused-for example, that the accused was not authorised to operate or capable of operating the vessel. [401]


In each instance the Committee notes the section 7(2) Charter analysis and justification for these reverse legal onus provisions in the Statement of Compatibility. In each instance the Statement concludes that the imposition, as an alternative, of only an evidential burden is not reasonably workable in a regulatory environment given the relative ease with which a defendant mat adduce the pertinent proof. The Committee makes the Charter report in respect to Part 4.7 (sections 174 to 182) below concerning the owner onus regime.

Reverse evidential onus provisions

The Committee notes that the Bill contains a number of reverse evidential onus provisions. The justification for these reverse onus provisions in the context of the marine regulatory regime established by the Bill are listed with a section 7(2) Charter analysis in the Statement of Compatibility.

In each instance the relevant provision provides a defence of reasonable excuse. The offence provisions are-

o allowing an unlicensed person to be the master of a registered recreational vessel. [52]

o operating a vessel in contravention of certificate. [63]

o tampering with a vessel. [89]

o failure to comply with a direction of the Safety Director regarding removal of vessel. [92]

o failure to surrender vessel after being served with a police notice. [107 and 119]

o obstructing or hindering a person executing a search and seizure warrant. [143]

o non-compliance with an activity exclusion zone (enter or remain in waters) notice. [210]

o failure to comply with a navigation direction by an applicable regulatory entity. [213]

o failure to comply with a prohibited navigation notice. [214]

o failure to comply with emergency navigation direction. [215]

o failure to comply with a direction of a harbour master or obstructing a harbour master. [237]

o failure to comply with direction by the Safety Director to remove obstruction to navigation. [267]

o failure to comply with a direction of a transport safety officer. [399]

o failure to comply with a direction of a transport safety officer. [401]

o possess a license etc obtained by dishonest means. [305]

o interfere with a navigation aid without lawful authority. [302]

In respect to these provisions the Committee notes these extracts from the Statement of Compatibility

These provisions impose an evidential onus on an accused to adduce or pOint to evidence that goes to the excuse ....

Courts in other jurisdictions have generolly taken the approach that an evidential onus on an accused to roise a defence does not limit the presumption of innocence.

However, even if these provisions limit the right to be presumed innocent in section 25(1) of the charter, the limitation would nonetheless be reasonable and justifiable under section 7(2).

The defences of reasonable excuse that are provided relate to matters within the knowledge of the accused and, if the onus were placed on the prosecution, would involve the proof of a negative which would be very difficult.

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Charter report

Rights of criminal defendants - Owner onus scheme - Person nominated by owner must prove innocence - Nomination statement by owner is evidence of matters stated in it

Summary: Clauses 175, 176, 179(1)(a) and 181(c) require a person nominated by a registered owner as the master or purchaser of a vessel a the time of an owner onus offence to prove his or her innocence of the offence. The Committee considers that these clauses may be incompatible with criminal defendants' Charter right to be presumed innocent until proved guilty according to law.

The Committee notes that clause 176 makes a 'responsible person' liable for any offence prescribed as an owner onus offence as if that person was the vessel's master at the time of the offence. Clause 175 defines 'responsible person' to include a person nominated by the vessel's registered owner as the master or owner of the boat at the time of the offence. A nominated person can only avoid a conviction for the offence if he or she makes a 'nomination rejection statement' respectively denying having possession, control and being the master, of the vessel or being the owner of the vessel at the time of the offence and either:

• an enforcement official is 'satisfied ... that the nomination was incorrect' (clause 179(1)(a)); or

• the nominated person proves at his or her trial that the enforcement official ought to have been 'satisfied ... that the nomination was incorrect' (clause 181(c))

In short, a person nominated by a registered owner as the master or purchaser of a vessel at the time of an owner onus offence is required to prove his or her innocence of the offence. The Committee considers that clauses 175, 176, 179(1)(a) and 181(c) may limit the Charter right of criminal defendants to be presumed innocent until proved guilty according to law.15


These offences are regulatory in nature and exist in relation to an activity that is highly regulated and which gives rise to an obligation to take care in the interest of public safety.

Where the prosecution has proved that an owner's vessel was used in the commission of an offence, the owner would need to prove certain matters in order to escape liability. Where the accused was not operating the vessel, proving that a statement was made and was accepted or ought to have been accepted is not an unduly onerous means of avoiding liability. It is also reasonable for the owner to know who is operating the vessel at the time of the offence and, if this is not known, provide a statement to this effect.

In most cases, discharging the onus will simply require production of the statement and any related correspondence.

While the Committee accepts that it is reasonable to place an onus on the registered owner of a vessel to establish that someone else was in charge of or owned it at the time of an offence, the Committee considers that the situation is completely different in relation to a person who is merely nominated by the registered owner. Such a person is only connected to the offence by the say-so of a party wishing to escape liability for the offence and may indeed find it difficult to prove that the nomination was incorrect.

Although the Committee is aware that similar rules operate in relation to some road offences in Victoria, it observes that no other Australian jurisdiction requires nominated persons to prove their innocence on the

15 Charter s. 25(1)

334


balance of probabilities. Instead, those jurisdictions either leave the onus of proof unchanged in prosecutions of nominated people16 or only place an evidentiary burden on such people. 17

The Committee considers that clauses 175, 176, 179(1)(a) and 181.(c) may be incompatible with the Charter right of criminal defendants to be presumed innocent until proved guilty according to law.

The Committee also notes that clause 180(2) provides that the mere written statement of the registered owner nominating the person is 'evidence, and in absence of evidence to the contrary, proof of the matters stated in it'. This means that a nominated person may be convicted solely or mainly on the basis of hearsay from the registered owner and without the opportunity to cross-examine the owner. The Committee considers that clause 180(2) may engage the Charter right of criminal defendants 'to examine, or have examined, witnesses against him or her, unless otherwise provided for by law' or their broader right to a fair hearing.18 The statement of compatibility does not address the compatibility of clause 180(2) with the Charter.

The Committee will write to the Minister seeking further information as to the compatibility of clause 180(2) with the Charter. Pending the Minister's response, the Committee refers to Parliament for its consideration the question of whether or not clauses 175, 176, 179(l)(a) and 181(c), by requiring a person nominated by a vessel's registered owner to prove his or her innocence of an offence committed in relation to a vessel, is compatible with the Charter right of criminal defendants to be presumed innocent until proved guilty according to law.


Occupational licensing National law Bill 2010

Introduced 10 August 2010 Second Reading Speech House

12 August 2010 Legislative Assembly Hon. Tim Holding MLA Member introducing Bill

Portfolio responsibility Minister for Finance, WorkCover and the Transport Accident Commission


The Bill implements the Occupational Licensing National Law (the 'national law') which sets out the regulatory framework for the National Occupational Licensing System (the 'national system'). Part 2 of the Bill adopts the national law as a law of Victoria as set out in the Schedule.

The purpose of the national system is to remove duplication and inconsistency in the regulatory arrangements throughout Australia relating to the licensing of various occupational groups. Under the national scheme, businesses and workers with a licence issued by the licensing authority will be able to operate across Australia without the need to hold multiple licences.

16

17

18

Note: The process agreed at COAG to bring about the nationol system involves the passage of the national law in the Victorian Parliament. Fallowing this, the remaining States and Territories will pass legislation that makes the national law a law of each of those jurisdictions. The national

Road Transport (Genera/) Act 1999 (ACT), s. 37; Transport Operations (Road Use Management) Act 1995 (Qld), s. 124; Road Traffic Act 1961 (SA), s. 137A.

Road Transport (General) Act 2005 (NSW), s. 179; Traffic Regulations 1999 (NT), s. 53; Traffic Act 1925 (Tas), s. 43GA; Road Traffic Act 1974 (WA), s. 98.

Charter 5S. 2S(2)(g) & 24(1). See AI-Khawaja & Tahery v UK [2009) ECHR 110, [36).

335


system will be implemented through cooperative national legislation that does not involve a referral of powers to the Commonwealth government.

The national system will initially apply to these occupational areas-

• air conditioning and refrigeration,

• building anp building related occupations;

• electrical;

• land transport (passenger vehicle drivers and dangerous goods only);

• maritime;

• plumbing and gas fitting;

• property-related occupations.

The national system is to commence with a delegated agency model, where the national authority will develop licence policy but delegate the operation of licensing services to the States and Territories, who will also retain responsibility for regulating licensee conduct.

The national law provides a set of comprehensive licensing requirements, from which the Ministerial Council will make regulations which will specify the licensing requirements for each specific occupational area. [regulation making powers - Schedule sections 160 to 165]

The National Occupational licensing Authority is to be governed by a Board to be appointed by the Ministerial Council and will administer the system and make recommendations to the Ministerial Council. The Authority will be supported in its policy role by Occupational licence Advisory Committees to be established under the national law for each licensed occupation.

The public will be able to access information concerning licensees through the establishment of a national register and thus be able to verify that a particular individual or business is appropriately licensed.

On 1 July 2012 the occupation groups comprising air conditioning and refrigeration, electrical, plumbing and gas fitting, and property related occupations (excluding conveyancers and valuers) will commence under the national system. The remaining occupations will commence after 1 July 2013.

Submissions received

The Committee received a submission from the Office of the Victorian Privacy Commissioner. The full written submission will be available on the Committee's Website. The summary of the submission as provided for in the submission is reproduced below. The Committee will forward the submission to the Minister for comment.

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The creation of a national occupational licensing scheme is a large undertaking, but will also involve collection and disclosure of vast amounts of personal information.

Significant detail as to how precisely the Bill is to work in practice will be left to subsequent regulation making.

Criminal History tnformation:

The Bill widely defines 'criminal history' information, potentially permitting large-scale collection of criminal history information of applicants. The definition also includes information relating to charges (undermining presumptions of innocence and situations where a court orders a conviction not be recorded) and traffic related infringements.


The way in which criminal history information will be handled by the Licensing Authority is effectively left to regulation; privacy concerns will be dependent on the view of the Ministerial Council.

The limited protection for criminal history information (in that it will not include 'spent convictions') is ineffective in Victoria, given that Victoria lacks any spent convictions legislation.

Information and Privacy:

The Privacy Act 1988 (Cth) is to apply in relation to the law, but provisions of it can be removed or altered by regulation. Protections in the Privacy Act are therefore uncertain and subject to the regulatory decision making process. It is unclear whether the National Privacy Principles or Information Privacy Principles in the Privacy Act will apply.

National Registers:

The proposed notional registers will collectively contain thousands of records relating to licensees. All matters in relation to how information on the registers will be collected, recorded and kept and inspection, access and publication of public registers has been left to national regulation. This means it is currently not possible to analyse the privacy implications of the national register, and protection will be dependent on the Ministerial Council.

The Bill contains no mechanism to suppress information from a public register where there are legitimate security concerns (such as contained in the Business Licensing Authority Act 1998 (Vic)).

Ministerial Council and regulation-making process:

Regulations made by We Ministerial Council will determine much of the substantial effects of the Bill and appear difficult to disallow. It will be vital for the Council to consider privacy issues and consult with privacy authorities in making such regulations if it is to afford privacy protections to applicants.


Delegating legislative power to the executive - Whether appropriate - Commencement by proclamation - National scheme legislation

The proposed Act is to commence on proclamation. The Committee notes that the provision will enable the commencement to coincide with the commencement of corresponding laws of other participating jurisdictions, and as such there may be appropriate reasons to allow for a commencement by proclamation provision. [2]

Delegation 0/ legislative power - Modifications to certain Commonwealth Acts by regulations

The Committee notes that certain provisions allow regulations to modify a number of Commonwealth Acts, these are the Privacy Act 1988 (Cth), the Freedom of Information Act 1982 (Cth) and the Archives Act 1983 (Cth). In each instance the explanatory memorandum provides that 'Modifications will be needed as some aspects of the {relevant Act] may not be relevant for the purposes of the national licensing system, or will need to be tailored to ensure that the protection works efficiently and effectively for the system. These modifications can be effected through the national regulations making power provided at subclauses (3) and (4),.

The Committee notes that in general a power to allow a subordinate instrument to modify an Act should be considered to be an in appropriate delegation of legislative power.

The Committee notes the concerns of the Office of the Victorian Privacy Commissioner in respect to the modifications that may be made to the Privacy Act 1988 (Cth) by regulations. The submission questions whether the Information Privacy Principles in the Commonwealth Act will apply. [135, 137 and 141]

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Scrutiny of Acts and Committee

The Committee will write to the Minister seeking further advice whether-

1. The Minister is satisfied that there is a need to include provisions in the National Law that permit regulations to modify an Act?

2. Whether the National Privacy Principles or the Information Privacy Principles will apply in to any modified provisions of the Privacy Act 1988 (Cth)?

Privilege against self-incrimination - Limitation concerning mandatory documents

The national laws in the Schedule to the Bill provide monitoring and enforcement powers including a requirement give information, answer questions and produce documents. The privilege in the national law applies save for the requirement to produce a document the licensee has access to and is required to keep under the national law. [Schedule sections 61 to 63] (The limitatian to the privilege in respect to documents is reported in the Statement of Compatibility)

Rights or freedoms - Relevance 0/ spent convictions - Absence 0/ Victorian spent conviction legislation - Whether Victorians at a disadvantage

The Committee notes the submission of the Office of the Victorian Privacy Commissioner in respect to the absence in Victoria of legislation in respect to spent convictions and whether this may place Victorian licence or permit applicants at a disadvantage to their interstate counterparts.

The Committee will write to the Minister in respect to the absence in Victoria of a legislative regime dealing with spent convictions and whether this may disadvantage Victorian applicants in any way.

Rights or freedoms - Presumption 0/ innocence - Probity examination - Criminal history records - Consideration 0/ charges pending permissible - Use by licensing agencies

The Committee notes the detailed and useful section in the explanatory memorandum for this Bill and in particular in respect to the use of criminal history records for licensing purposes. The explanatory memorandum notes that-

• each criminal history offence in the national licensing scheme will be prescribed in the occupational specific regulation as being an offence that is relevant for that occupation and subgroups (e.g. a supervised trainee) within that occupation.

• the definition of criminal record includes consideration of charges pending and not yet determined.

• the use of charges to determine applications may be considered contrary to the presumption of innocence but also notes that this has been accepted previously by Parliaments when it can be justified on public safety/ interest grounds and where there may be a public interest in restraining a person's scope of work until such matters are dealt with.

• the national law provides that the criminal history of an applicant is only relevant to the extent that there is a connection between the history and the inherent requirements of that occupation.

• the proposed national laws pravide appropriate appeal rights (internal review and judicial review) against adverse administrative decisions. [4 and 19]

Parliamentary supervision 0/ regulations - Scrutiny and disallowance 0/ regulations made by the Ministerial Council- Subordinate Legislation Act 1994 (Vic) to apply

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The Committee notes that whilst many of the procedural provisions of the Subordinate Legislation Act 1994 (the 'Act') do not apply to the national law the scrutiny and disallowance provisions, with some modification, do apply.

The Victorian Member of the Ministerial Council must table regulations made under the national law in the Parliament. The national regulations will be subject to the same scrutiny (section 21 of the Act) and disallowance provisions (section 23 of the Act) as if they were statutory rules under the Act. However, a disallowed regulation will only cease to have effect if it is disallowed in a majority of participating jurisdictions. [5, 7, 8 and Schedule section 164 of the national law]


Residential Tenancies Amendment Bill 2010


Purpose

10 August 2010 12 August 2010 Legislative Assembly Hon. Bronwyn Pike MLA Hon. Tony Robinson MLA Minister for Consumer Affairs

The Bill amends the Residential Tenancies Act 1997 (the 'Act') in relation to

Park site agreements to -

1. insert a new Part 4A to provide a regulatory framework for site tenancy agreements and rights between site residents who own their own dwelling and site owners. The new Part provides for the rights, duties and responsibilities of owner-renters and park operators in relation to site agreements, re-sale of dwellings, assignment of site agreements and regulates termination of agreements and compensation. The provisions include an increased notice period from 120 days to 365 days.

2. provide that site agreements must be in writing, prohibit harsh and unconscionable terms, provide disclosure of information to potential renters such as, a condition report, fees and charges and notice of rent increases. The Part provides for a cooling off period and a right to form and participate in resident committees. The Bill provides a grace period of 12 months to allow time to adjust to these requirements. Further, regulation may prescribe other important information that agreements must include.

3. allow the site owner to make reasonable rules concerning the control, use and management of the park.

4. increase the monetary jurisdiction of VCAT from $10,000 to $100,000 concerning disputes under Part 4A.

5. regulate entry and the manner of entry to a site tenants dwelling by the site owner and the site tenants obligations to permit lawful entry.

6. Insert a new Division 3A into Part 6 governing the termination of Part 4A site agreements

7. provide a 5 year minimum term that must be offered to residents in new parks registered after the commencement of the reforms made by the Bill. [4 to 73]

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Note: A resident in a caravan park who resides in a moveable caravan who is not subject to a site agreement or a resident in a dwelling owned by the operator of the park will continue to be covered by the current provisions in Part 4 of the Act.

Rooming houses to -

1. introduce a head of power to make regulations prescribing standards and requirements for rooming houses and provide penalty offences for breach of those standards. The six minimum standards to be implemented in regulations immediately cover, fire safety plans, power overload protection, working double power outlets, fire safe locks on bedroom doors, locks on bathroom doors and window coverings. [76]

2. expand the powers of the Director to initiate investigations and bring representative proceedings without the need of an application being made by a resident. [74 and 75]

3. amend and clarify the inspection powers concerning rooming houses to permit entry and search of common areas (non-residential rooms). Search of a residential room will require consent of the resident or a search warrant. [82]

4. establish reporting obligations by building owners and their agents (if any) to local government where the owner has reason to believe that the building is being used without being registered as a rooming house. [77]

5. improve protections for residents given a notice to vacate in circumstances where the operator has defaulted on their lease. A minimum of 45 days notice to vacate must be given. [79]

Tenancy history databases - to implement a nationally consistent approach for the regulation of privately owner electronic databases containing information about individual tenancy histories. The provisions will require certain information to be given to tenancy applicants concerning the database to be used before an application is made, give the applicant details of the listing made, restrict the circumstances when a person may be listed on a tenancy database and allow a tenant to apply to VCAT to rectify inaccurate, incomplete, ambiguous or out of date listings. [88]

Fire safety in caravan parks to improve the regulation of fire safety and emergency management planning and procedures in caravan parks and to increase penalties for breaches of compliance orders and closure orders. [83 to 87]

Increased penalties - to provide adequate deterrence against unlawful action by increasing penalties throughout the Act. In each case the explanatory memorandum compares the increase by reference to the existing penalty and notes that the penalties have not been reviewed since 1997. [89 to 163]

Amendments to other Acts

Duties Act 2000 - to make consequential amendments necessary as a result of the insertion of new Part 4A (site agreements) to the Residential Tenancies Act 1977. [169]

Fair Trading Act 1999 - to clarify the Director's powers relevant to proceedings on behalf of a person without the persons consent under section 105 of the Act in circumstances where there is express legislative provision of an Act that provides that consent is not required. The amendments also provide that where the Director continues proceedings without a person's consent the Director must compensate the person for any loss or expense incurred by that person. [170 and 171]



The provisions in the Bill have a forced commencement date of not later than 31 March 2012. [2] In respect to the delayed commencement the Committee notes the explanatory memorandum-

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This commencement period is necessary ta enable regulatians to be made and for the development and implementation of an education program and other non-legislative matters incidental to the commencement of the Bill.

Presumption of innocence - Reverse evidentiary onus provisions

The Bill includes a number of amendments that provide 'reasonable excuse' reverse evidentiary onus provisions. Three of the amendments that attract Charter consideration in the Statement of Compatibility do so simply because they increase penalties (clauses 105, 116 and 130). These offences relate to entering premises occupied by tenants and residents. The Bill also inserts a new section creating a comparable offence in respect to entering a site tenant's residence without reasonable excuse (clause 10 - new section 206ZZP). A fifth provision is also discussed which substitutes an evidentiary onus in place of an existing legal onus (clause 131 substituting a new section 229). [10, 105, 116, 130 and 131]

Privilege against self-incrimination - Abrogation in respect to documents - Derivative use of evidence

The Bill amends the Act so that section 1061 of the Fair Trading Act 1999 (the applied section) will apply to the Act. That section concerns the investigative powers of the Director to require a person to answer questions or produce documents or provide evidence in respect to a contravention of the Act.

The applied section expressly abrogates the privilege against self-incrimination by providing that a person cannot refuse to answer a question, provide information or produce or permit the inspection of a document on the ground that the answer, information or document may tend to incriminate the person and then goes on to provide that the answer to a question or the provision of any information by the person in compliance with the section cannot be used against that person in any criminal proceedings other than proceedings under that section.

The Committee notes that the Statement of Compatibility provides a Charter analysis in respect to the abrogation of the privilege in relation to documents and the absence of derivative use immunity for any answers given or documents provided. (Refer to Charter report below) [82(2)]

Power of entry into residential premises without warrant

1. Site-tenanted owned dwellings - The Bill inserts a new Part 4A (Site agreements and site-tenant owned dwellings) and includes a right of entry (new section 206ZZ1 and 206ZZJ) by the owner or owner's agent to enter a site occupied by a site tenant in certain circumstances such as, by consent; in case of emergency; under an abandonment order made by the Tribunal; by prior 24 hour advance notice. The grounds for such entry are; for non-compliance of a tenant or owner duty under the Act; where the site is to be sold or used as security for a loan; or where a site inspection is necessary and entry has not been made within the last 6 months. The Committee notes that the Statement of Compatibility discusses whether these prOVisions are reasonably circumscribed to the extent they are reasonably necessary to permit an owner to enter a tenant's site and canvasses tenant's rights such as compensation or Tribunal orders prohibiting entry. [10]

2. Rooming houses - In respect to entry and search of rooming houses by inspectors monitoring operator compliance under the Act the Bill clarifies that the limitations in respect to that part of the premises used for residential purposes do not apply to the common areas of rooming houses such as the kitchen, hallway and living areas and that these may be entered and searched. Access to resident's rooms will continue to require consent or a search warrant. The Statement of Compatibility discusses the privacy aspects (of owners and residents) of this provision. [82]

3. Caravan parks - The Bill extends the categories of persons who may exercise entry and inspection powers in relation to caravan parks and moveable dwellings under the Act (section 525) to include any

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officer or employee of a fire service and provide that they are authorised persons within the meaning of the Act. [85]

Charter report

Self-incrimination - Director of Consumer Affairs may compel people believed to have information about breaches of tenancy law to lead investigators to evidence of their own criminality

Summary: Clause 82(2) permits the Director to oblige people believed to have information about breaches of tenancy law to lead investigators to evidence of their own criminality. The Committee considers that clause 82{2} may be incompatible with the Charter's rights with respect to selfincrimination.

The Committee notes that clause 82(2), amending s. 507 A, extends the operation of s. 1061 of the Fair Trading Act 1989, which empowers the Director of Consumer Affairs Victoria to require anyone who he or she believes to have information about a contravention of certain laws, to contraventions of the Residential Tenancies Act. Under s. 1061(4), such a person is obliged to answer questions even if they would tend to incriminate him or her. Although s. 1061(5} provides that those answers are generally inadmissible in later proceedings, that immunity does not apply to information derived from those answers. So, clause 82(2) permits the Director to oblige people believed to have information about breaches of tenancy law to lead investigators to evidence of their own criminality. The Victorian Supreme Court has held that such a scheme limits the Charter's rights with respect to self-incrimination.19


The inspectors' questioning powers are necessary to ensure inspectors are able to obtain all relevant information in relation to compliance with the act. The abrogation of the privilege is designed to protect the public interest in ensuring that inspectors have adequate powers to investigate and enforce compliance with obligations under the act. Compliance with obligations protects rooming house residents.

The purpose of not providing a derivative-use immunity in respect of answers ... is to ensure that in appropriate cases criminal offences can be effectively prosecuted.

I consider that a derivative-use immunity ... would significantly impede the ability to investigate and prosecute criminal offences.

The Committee observes that:

•

•

•

19

20

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Such arguments were rejected by the Supreme Court in 2009 in relation to a scheme designed to investigate organised crime that incorporated significant court supervision.

A clear majority of Australian jurisdictions' residential tenancy laws either don't abrogate the privilege against self-incrimination or provide for a full derivative use immunity.20

The effect of clause 82(2) is not limited to landlords or even to parties to a tenancy agreement. So, it may lead to the compelled self-incrimination of rooming house residents or family, friends or neighbours of tenants.

Re an application under the Major Crime (Investigative Powers) Act 2004 [2009] VSC 381

Privilege expressly preserved: Residential Tenancies Act 2010 (NSW), s. 98(2); Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s.445(5). Privilege not expressly abrogated: Residential Tenancies Act 1999 (NT), s.140; Residential Tenancies Act 1995 (SA), s. 31. Express derivative use immunity: Fair Trading (Consumer Affairs) Act 1973 (ACT), s. 121(2)(a). The two jurisdictions that don't provide derivative use immunity are Tasmania and Western Australia.


o Information derived from compelled answers may be used to prosecute any Australian offence, including offences with no connection to tenancy law, e.g. drug offences.21

In light of these factors and the Victorian Supreme Court's ruling on a similar but more protective scheme relating to organised crime, the Committee considers that clause 82(2) may be incompatible with the Charter's rights with respect to self~incrimination.

The Committee refers to Parliament for its consideration the question of whether or not clause 82{2}, by aI/owing the Director of Consumer Affairs Victoria to compel people believed to have information about a contravention of tenancy law to lead investigators to evidence of their own criminality, is compatible with the Charter's rights with respect to self-incrimination.


Road legislation Miscellaneous Amendments Bill 2010

Introduced 10 August 2010 Second Reading Speech House

12 August 2010 legislative Assembly

Member introducing Bill Portfolio responsibility

Hon. Tim Pallas MLA Minister for Roads and Ports

Purpose

The Bill amends the Road Safety Act 1986 (the 'Act') to-

1.

2.

3.

4.

5.

6.

7.

21

extend the operation of the immediate licence suspension system to the offence of failing to provide a sample of oral fluid, and to require the licence to be immediately surrendered to the police member issuing a notice for such failure. [15]

provide a mandatory minimum 3 month licence cancellation period for a first offence, and a mandatory minimum 6 month licence cancellation period for a subsequent offence, where a person is convicted or found guilty by a court of failing a drug-driving test. [14]

remove the maximum licence cancellation and disqualification periods for failing a drug-driving test (now 6 months for a first offence, 12 months for a subsequent offence). [14]

provide for an extension of time to nominate another driver in the circumstances where a person has been issued with a traffic infringement notice in respect of an excessive speed infringement but is unaware that the notice has been issued. [20]

provide that where a person is issued with a traffic infringement notice of a drug-driving infringement and does not lodge a notice of objection to the drug-driving infringement will have their licence or permit suspended for 3 months and have a conviction recorded for that infringement. [21]

allow VicRoads to confirm whether or not a person or body is the registered operator of a vehicle or trailer in response to a request by a vehicle or trailer dealer where the dealer specifies the name of the person whom the dealer believes is the registered operator of the vehicle or trailer. [22]

confirm that vehicle-related information such as the make, model and year of manufacture can be released by VicRoads upon request. [22]

Fair Trading Act 1989, s. l06P(2)(c).

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The Bill also amends the -

• Melbourne City Link Act 1995 to address a number of issues that have arisen in relation to leases granted under the Act and the operation of the freeway management system installed on the Link road as part ofthe Ml Upgrade. [4-6,9 and 10]

• EastLink Project Act 2004 and the Melbourne City Link Act 1995 to clarify that the existence of a suspended tollway billing arrangement cannot be used as a defence for driving a vehicle in a toll zone that is not registered for tolling purposes. [3 and 7]

• Road Management Act 2004 to clarify the powers of State road authorities to deal with vehicles moved, kept or impounded on the grounds that they are causing an obstruction or danger or are illegally parked and clarify that authorities may charge fees before releasing a vehicle that has been impounded and the power to sell, destroy of otherwise dispose of a vehicle if the fees are not paid within 60 days. [11]

• Transport (Compliance and Miscellaneous) Act 1983 to clarify the intended operation of the regulationmaking power to facilitate the operation of the evidential provisions relating to the smart card ticketing system. [24]


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Ministerial Corresporllderllce

firearms and Other Acts Amendment Bill 2009

The Bill was introduced into the Legislative Assembly on 22 June 2010 by the Hon. Bob Cameron MLA. The Committee considered the Bill on 26 July 2010 and made the following comments in Alert Digest No. 10 of 2010 tabled in the Parliament on 27 July 2010.

Committee's Comment

Charter report

Adequacy oj statement oj compatibility - Extension oj banning notice scheme to suspected disorderly conduct

Summary: Clause 35 extends the existing scheme allowing police to issue banning notices in designated areas to the crime of disorderly conduct. The Committee is concerned that the combination of an intrusive and unusual police power founded on mere reasonable suspicion with the malleable concept of disorderliness may not satisfy the test in Charter s. 7(2) for reasonable limitations on human rights.

The Committee notes that clause 35, amending schedule 2 oj the Liquor Control Reform Act 1998, extends the existing scheme in Division 2 oj Part 8A oj that Act aI/owing police to issue banning notices in designated areas to the offence oj disorderly conduct in s. 17A of the Summary Offences Act 1965. The effect of clause 35 is that police will be able to direct anyone who they suspect on reasonable grounds to be behaving in a 'disorderly manner' to leave the designated area for up to 72 hours. The Committee has previously reported on the potential Charter incompatibility of both the banning notice scheme (as well as its recent extension from 24 to 72 hour bans) and the new offence of disorderly conduct.

The Committee observes that clause 35 amounts to a significant extension of the banning notices scheme. While the existing scheme is limited to offences of violence, drunkenness or offensiveness, the offence of disorderly conduct can apply to a broad range of behaviour that lacks any of these qualities. The Committee is concerned that the combination oj an intrusive and unusual police power Jounded on mere reasonable suspicion with the malleable concept oj disorderliness may not satisfy the test in Charter s. 7(2) for reasonable limitatIons on human rights. The effect of clause 35 is to give the banning notice scheme a similar scope (in designated areas) to the general move-on power in s. 6 of the Summary Offences Act 1965 (which was also the subject of a Committee report on potential Charter incompatibility), but without a number of the restrictions in the latter scheme.

The Statement of Compatibility's analysis of clause 35 is as follows:

The provisions relating to banning and exclusion orders in the Liquor Control Reform Act 1998 were the subject of a previous statement of compatibility and were found to be compatible.

While the Committee agrees that there is no need to revisit previous analyses of human rights compatibility of eXisting schemes, it considers that the statement of compatibility for a Bill that extends an existing scheme should always analyse the rights compatibility of the extended portion of the scheme, so that Parliament can be fully informed of incremental encroachments on human rights.

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The Committee will write to the Minister expressing its concern about the statement 0/ compatibility lor clause 35. Pending the Minister's response, the Committee draws attention to clause 35.

Minister's Response

Thank you for your letter dated 28 July 2010 regarding the Committee's consideration of the Firearms and Other Acts Amendment Bill 2010.

The Committee has sought further information regarding the operation and scope of clause 35 in the Bill. Specifically, the Committee is concerned at the adequacy of the Statement of Compatibility in relation to the inclusion of the offence of disorderly conduct in the banning notice and exclusion order scheme.

I note the Committee has chosen to describe the offence as potentially applying to a broad range of behaviour that lacks any connection with violence, drunkenness or offensiveness and has expressed concern that the combination of the police powers founded on "mere" reasonable suspicion and the "malleable" concept of disorderliness may not satisfy the test found in section 7(2) of the Charter that limitations on human rights be reasonable.

I do not share these concerns. The Government has responded to community concern at the occurrence of violence and anti-social behaviour on our streets. It has always been my view that the average citizen ought to be free from the risk of violent, drunken or anti-social behaviour. Disorderly behaviour in public places diminishes the ability of ordinary law-abiding citizens to enjoy public spaces. The instances of such behaviour act as a disincentive to the average person who may otherwise wish to take advantage of the many vibrant and attractive public activities on offer in Victoria.

I do not agree that the concept of "disorderliness" is malleable in the sense suggested by the Committee. It is a concept familiar in the criminal courts. It is behaviour that goes beyond the merely annoying or ill mannered and involves a level of seriousness appropriate to warrant the intervention of the criminal law. In addition, the exercise of "reasonable suspicion" by the police is a familiar concept that does not imply any lessening of the matters police must take into account when exercising their discretion as to the best way to respond to a given situation.

The offence of disorderly conduct exists in many other jurisdictions. The legal limits of when the criminal law will intervene have been tested on a number of occasions. Any concern that this offence will lead to an unwarranted intrusion with human rights because of trivial or merely irritating behaviour is, in my view, misconceived. I fully expect the police will exercise their powers and discretion in a professional manner. Any claim to the contrary can be tested in the courts and, if upheld, the police will clearly face the consequences of wrongly characterising behaviour as criminal.

In conclusion, I consider the Statement of Compatibility to be sufficient. In my view, the extension of the banning notice and exclusion order scheme to the offence of disorderly conduct does constitute a reasonable limitation on human rights.

Thank you for bringing this matter to my attention and for giving me the opportunity to respond to the Committee's concerns.

Bob Cameron MP Minister for Police & Emergency Services

18 August 2010

The Committee thanks the Minister lor this response

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Jh.nries Amendment (Reform) Bill 2009

The Bill was introduced into the legislative Assembly on 22 June 2010 by the Hon. Rob Hulls MLA. The Committee considered the Bill on 26 July 2010 and made the following comments in Alert Digest No. 10 of 2010 tabled in the Parliament on 27 July 2010.

Committee's Comment

Charter report

Fair hearing - Independent tribunal - Increased eligibility 0/ retired prosecutors and police officers to serve as jurors

Summary: Clause 4(1) reduces the ineligibility of prosecutors and police officers to serve as jurors from ten years to five years. The Committee will write to the Attorney-General seeking further information as to whether courts and criminal defendants will be informed that a potential juror was once employed by the prosecuting agency or, in a trial where police conduct was at issue, was once a police officer.

The Committee notes that clause 4(1.J, amending clause 1. 0/ Schedule 2, reduces the ineligibility 0/ a number 0/ office holders to serve as jurors from ten years to five year. The offices Include public servants engaged in 'in law enforcement, criminal investigotion, the provision of legal services in criminal cases, the administration of justice or penal administration' and members 'of the police force'. The Committee considers that clause 4(1) engages the Charter's right to have criminal charges decided by an 'independent' court.

In 2007, the House of Lords examined much more extensive United Kingdom reforms that made current prosecutors and police officers eligible to serve as jurors. While the House of Lords did not question the compatibility of these reforms with human rights, a majority held that it would be unfair for police officers to serve in trials where police conduct was at issue or for prosecutors to serve in trials brought by the authority that employs them. The Committee observes that these concerns may also arise in a lesser form in relation to jurors who served as police officers or prosecutors five years earlier (a time period that might potentially encompass the events at issue in the trial.)


The bill does not alter existing safeguards in the Juries Act to ensure juries are independent and impartial. Safeguards against bias, including peremptory challenges based on occupational experience, continue to apply. Potential jurors retain the right to seek to be excused from jury service.

The bill increases community representation on juries while ensuring they remain independent and impartial. The bill, therefore, does not limit the right to a fair hearing under section 24 of the charter.

However, the Committee observes that the Juries Act only appears to provide for the divulgence of a potential juror's current occupation. The English Court of Appeal, responding to the fair trial concerns raised by the House of Lords, has held that:

It is essential that the trial judge should be aware at the stage of jury selection if any juror in waiting is or has been, a police officer or a member of the prosecuting authority, or is a serving prison Officer. Those called for jury service should be required to record on the appropriate form whether they fall into any of these categories, so that this information can be conveyed to the judge.

The Committee will write to the Attorney-General seeking further in/ormation as to whether the court and criminal defendants will be informed that a potential juror was once employed by the

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prosecuting agency or, in a trial where police conduct was at issue, was once a police officer. Pending the Attorney-Generafls response, the Committee draws attention to clause 4{1}.

Minister's Response

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Thank you for your letter dated 28 July 2010 enclosing Chorter Report of the Scrutiny of Acts and Regulations Committee (SARC), as extracted from Alert Digest No. 10 of 2010.

Your letter-

a. considers that clause 4(1) of the Juries Amendment (Reform) Bill 2010 (the Bill) engages the Charter's right to have charges decided by an 'independent' court. The engagement is said to be because of the increased eligibility of retired prosecutors and retired police officers to serve as jurors under the Bill; and

b. seeks further information on whether the court and criminal defendants will be informed that a potential juror was once employed by the prosecuting agency or, in a trial where police conduct was at issue, was once a police officer.

The principal aim of the Bill is to increase community representation on juries by reducing categories of occupation groups ineligible for jury service and by reducing the period of ineligibility for jury service.

One of the main reforms under the Bill is to halve the period of ineligibility for jury service from ten years to five years. This covers all the occupation groups listed in Clause 1 of Schedule 2 of the Juries Act 2000, including a member of the police force and prosecutors. i

The Government considers that clause 4(1) of the Bill engages but does notlimit the right to a fair hearing by an independent court or tribunal (which includes the jury) under the Charter of Human Rights and Responsibilities. There are already existing safeguards that ensure a court and criminal defendants have a fair trial by an independent and impartial juror whether or not a potential juror is a former employee of a prosecuting agency or a former police officer.

A lawfully constituted jury is fundamentally important to providing a fair trial to an accused. ii If a jury is unlawfully constituted this represents a fatal irregularity in the trial. iii In Webbiv the High Court held whether a jury is not impartial depends on whether a fair-minded and informed observer would have a reasonable apprehension of a lack of impartiality on the part of the jury. v

The Bill engages the right to a fair hearing because it reduces the period of ineligibility of police and prosecutors from jury service. Under clouse 4(1) a person could serve on a jury after five years has elapsed since ceasing that employment.

In England and Wales, the courts have found the mere presence of a serving police officer on a jury does not of itself roise apprehended bias in the jury and does not contravene the human right to a fair trial by an independent and impartial court. vi Applying this to the Victorian context, the Bill does

Juries Act 2000, Clause l(f) and (g) of Schedule 2. A prosecutor is covered by the definition: 'a person employed or engaged (whether on a paid or voluntary basis) in the public sector within the meaning of the Public Administration Act 2004 in law enforcement, criminal investigation, the provision of legal services in criminal cases, the administration of justice or penal administration'. A prosecutor may also be a practising lawyer or government lawyer or member of the police force.

R v Panozzo; R v Iorio [2003] VSCA 184 at [27] - [3D] per Vincent JA.

R v Hall [1971] VR 293; R v Cherry [2005] VSCA 89 at [10] [11], [14]; Martin v The Queen [2010] VSCA 153 at [86].

Webb & Hay v R [1994] HCA 30.

Webb & Hay v R [1994] HCA 30 at [2] per Mason J and McHugh J; Scetrine v The Queen [2010] VSCA 194 at [14]. This is the same test for judges. A similar test for jurors exists in England and Wales see R v Abdroifkof[2007] UKHL 37 at It], [141 [171 per Lord Bingham; Khan v R [2008] EWCA Crim 531 at [7] per Lord Phillips.

R v Abdroifkof [2007J UKHL 37 at [46] per Baroness Hale at [68J, [78] per Lord Carswell; Khan v R [2008] EWCA Crim 531 at [24J per Lord Phillips; Cornwall v R [2009] EWCA Crim 2458 at [19J - [20].

vii

viii

Ix

xi

xii

)(iii

xlv

xv

xvi


not alter the current law under the Juries Act that serving police officers and serving prosecutors are not eligible for jury service. This is a crucial difference to the English system. vii On similar reasoning to that in England, the mere presence of a former police officer or prosecutor having been retired for 5 years would not of itself give rise to a reasonable apprehension of bias in a jury to a fair-minded and informed observer in Victoria.

If a retired police officer or retired prosecutor retains pre-formed views about the justice system or knows a party to the proceeding or was connected to the case under trial, there are existing safeguards to prevent them serving on a jury.

For example, a person may seek to be excused by the Juries Commissioner or the court for any good reason, which includes potential impartiality due to a previous occupational experience held at any time. lfiii It is therefore unnecessary to adopt the English approach to disclose past occupations where it may be relevant to a trial involving police conduct as this is already addressed by the excusal process.

In addition, potential jurors may be challenged during jury selection based on their present occupation. lx For example, section 36(1) of the Juries Act requires the potential juror's present occupation be disclosed during the selection stage. This process includes exhaustion of all the peremptory challenges and challenges for cause made by the parties. An accused also has a common law right to challenge the composition of the jury as a whole, known as a challenge to the array. x The peremptory challenge has been held by the High Court and the Court of Appeal to be a fundamental right. xi It is an immediate response to a potential juror for any reason including holding a certain occupation. xii

Neither the Bill nor the Juries Act requires disclosure of a past occupation outside of the eligibility period. However, it may be disclosed as part of an application to be excused from jury service or as part of a challenge for cause. Hence, the Queensland approach does not appear necessary at this time. xiii

In the English case of KhanXill, Lord Phillips suggested that the court and criminal defendants be

informed whether a potential juror is or has been a prosecutor or a police officer. This approach has been suggested, in part, because England permits current police officers and current prosecutors to serve on juries and because peremptory challenges have been abolished in that jurisdiction. This is not the case in Victoria.

The English approach also involves, in specific cases, judges asking specific questions to potential jurors to relating to a past occupation as 0 police officer or prosecutor/v To do so would undermine the purpose of jury service eligibility period as contained in section 5(3) of the Juries Act. Importantly, it could also creates a situation where potential jurors are questioned in court including abaut their connection to the accused or any witnesses as well as their views based on a past occupation, irrespective of how long ago it was held. xvi The eliciting of information from potential jurors about their past occupational history outside the existing process presents a danger of

Criminal Justice Act 2003, Schedule 33.

Juries Act 2000, sections 8 to 13.

Challenges can be by way a peremptory challenge, challenge for cause or by standing aSide a potential juror.

R v Badenoch [2001] VSC 409; R v Badenoch [2004] VSCA 95 at [66]- [71]; Greer v R (1996) 84 A Crim R 482.

Johns v R [1979] HCA 33 at [20] per Barwick CJ; at [15] per Gibbs J; at [1] per Stephen J; R v Cherry [2005] VSCA 89 at [10].

Katsuno v R [19991 HCA 50 at [26]- [29], [45), [51] per Gaudron, Gummow and Callinan JJ; at [118] per Kirby J.

Jury Act 1995 (Qld), section 37(2).

Khan v R [2008) EWCA 531 at [131- [132).

Cornwall v R [2009) EWCA Crim 2458 at [24).

See for example, the questioning of a juror in Yemoh v R [2009) EWCA Crim 930.

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eventually leading to questioning similar to that practised in the United States and this is not appropriate in Victoria.

In Victoria, the eligibility period, excusal process, system of challenges and the placing of the jury pool in the courtroom (eg so they view the parties to see if they are known to them) ensures that any connection between a potential juror and the trial is disclosed. Such potential jurors are removed from the jury pool. It should also be noted a further safeguard exists under section 43 of the Juries Act whereby a trial judge, during a trial, may discharge a juror who is not impartial without discharging the whole jury.

For these reasons, the reforms made by the Bill do not interfere with existing safeguards that ensure juries are independent and impartial.

I trust that my response sufficiently assists SARC in its deliberations.

If SARC requires any clarification of the matters raised, please do not hesitate to contact my office.

ROB HULLS MP Attorney-General

17 August 2010

The Committee thanks the Attorney-General/or this response

Personal Property Securities (Statute Law Revision and Implementation) BiII2009

The Bill was introduced into the Legislative Assembly on 29 July 2010 by the Hon. Justin Madden MLC. The Committee considered the Bill on 9 August 2010 and made the following comments in Alert Digest No. 11 of 2010 tabled in the Parliament on 10 August 2010.

Committee's Comment

350

Charter report

Privacy - Trans/er 0/ Victorian registers to national register - No current regulations on privacy 0/ national register

Summary: Clauses 6, 18, 19 and 20 permit the transfer of individuals' records to the Registrar of Personal Property Securities. Clause 21 immunises the Victorian bodies from liability for 'good faith' transfers. However, regulations for the federal register have not been published or enacted to date. The Committee will write to the Minister for more information.

The Committee notes that clauses 6, inserting a new section 41 into the Chattel Securities Act 1987, 18, 19 and 20 permit the Roads Corporation, the Registrar-General and the Registrar 0/ Cooperatives to transfer their records, including private in/ormation on various securities registers, to the Registrar 0/ Personal Property Services to assist in the establishment 0/ the Personal Property Securities Register. The Committee considers that Part 5 engages the Charter's right to privacy.


Registrars will be required to deal with the information held on their registers and exercise the powers in the bill in a manner that is consistent with the Information Privacy Act 2000. The PPS registrar in receiving that information will be bound by the Privacy Act 1988 (Commonwealth). The pravisions of the PPS act that establish and regulate the PPS register are compatible with the rights set out in the charter.


However, the Committee is concerned that there are presently gaps in the protection of the privacy of information transferred pursuant to clauses 6, 18, 19 and 20.

In relation to acts by the Victorian authorities, the Committee observes that clause 21 provides that these bodies are 'not liable for anything done or omitted to be done in good faith' in exercise (or in reasonable belief that they are exercising) pawers under new section 41 or clauses 18, 19 and 20.

In relation to acts by the Registrar of Personal Property Securities, the Committee observes that regulations governing the privacy of the federal Personal Property Securities Register have not yet been settled or enacted. In relation to this issue, the Committee's Alert Digest No. 10 of 2009, reporting on the Personal Property Securities (Commonwealth Powers) Bill 2009, remarked:

[TJhe Committee observes that ss. 153, 170 & 171 of the proposed Commonwealth Act, which regulate the storage and searching of personal information about grantors (i.e. people who borrow money with personal property as collateral) on the Personal Property Securities Register, engage the Charter right of grantors (who are typically natural persons) to privacy, (e.g. if grantors have to supply their date of birth, address and other personal details and if the database can be searched in a way that can reveal these details.) ...

[TJhe main automatic protections for grantors' privacy depend on the passage and content of regulations made by the Governor-General under s. 303 of the proposed Commonwealth Act. In particular, the regulations will define:

o the details that grantor must provide to register financial statements in relation to particular property (s. 153, items 2 & 8)

o prohibitions on some searches of the register (s. 170(3)(d))

o permitted search criteria (s. 171(1)(e))

o the way in which the results of searches are worked out (s. 171(3))

In its Alert Digest No. 12 of 2009, the Committee published the Minister's response, which confirmed that neither the federal regulations nor the Registrar of Personal Property Services will be subject to the Charter. The Minister also remarked:

In relation to future amendments to the PPS Act and the future promulgation of PPS regulations by the Commonwealth, the Commonwealth Government has an obligation under clause 3.3 of the PPS Agreement to consult with the States and Territories on such proposals prior to introducing amending legislation into the Commonwealth Parliament.

The Commonwealth Government has stated that it will be releasing draft regulations for public consultation later this year and will be consulting with the States and Territories pursuant to the PPS Agreement. The Victorian Government will be scrutinising these regulations for compatibility with the Charter and will advocate for Charter-compatible outcomes. Further, the Victorian Government will scrutinise the extent to which the draft regulations add to, or modify the operation of, clauses 153, 170 and 171 of the PPS Bill.

However, the Committee observes that, while an updated discussion paper on the proposed regulations was released in October 2009, no draft regulations have been released for public discussion and no regulations have been promulgated.

The Committee will write to the Minister seeking further information as to the progress of the regulations of the Personal Property Securities Act 2009 (Cth).

Pending the Minister's response the Committee refers to Parliament for its consideration the questions of whether or not clauses 8, 17, 18, 19 and 20, by authorising the transfer of Victorians' information to the federal Personal Property Securities Register when Victorian authorities are

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immunised from liability for good faith transfers and no regulations have yet been published regulating the privacy of the federal register I are compatible with the Charters right to privacy.

Minister's Response

352

I refer to the report of the Scrutiny of Acts and Regulations Committee (the Committee) in Alert Digest No.11 of 2010 regarding the Personal Property Securities (Statute Law Revision and Implementation) Bill 2010 (the Bill). The Committee has sought further information as to the progress of the Commonwealth's draft Personal Property Securities Regulations 2010 (PPS regulations) to be made under the Personal Property Securities Act 2009 (PPS Act) and has raised clauses 6, 17, 18, 19 and 20 of the Bill for consideration by Parlioment.

A .. Privacy implications for transfer of Victorian registration data to Commonwealth PPS register

Clause 17 of the Bill sets out the definitions for Part 5 Provision of information of the Bill. Clause 18 provides for the transfer of information contained in the records of the Roads Corporation under Part 3 of the Chattel Securities Act 1987 "that is necessary" to give effect to the PPS Act and to ossist in the estoblishment of the PPS register. Similarly, clause 19 provides for the transfer of informotion recorded in the Office of the Registrar-General under Part VII and VIII of the Instruments Act 1958 while clause 20 provides for the transfer of information contained in the records of the Registrar of Co-operatives under the Co-operatives Act 1996. As the Statement of Compatibility to this Bill notes, the exercise of the powers in this Bill will be required to be in a manner consistent with the Information Privacy Act 2000. In preparing this Bill the Government has consulted with the Office of the Victorian Privacy Commissioner. Accordingly, it is important to note the inclusion of the qualifying words in clauses 18 - 20 "that is necessary" which is intended to limit the scope and purpose of the transfer of data to give effect to the PPS Act and to the establishment of the PPS register. I consider this approach to be consistent with the information privacy principles in the Information Privacy Act 2000.

At a practicol or operational level, I trust the information set out in Attachment A to this letter will assist with the Committee's consideration of the scope of the data to be transferred to the Commonwealth. The majority of registered secured parties on the relevant Victorian registers are corporate entities. In relation to the grantors or mortgagors of the security interests, where these are individuals, there is very little personal information currently recorded other than their name. In relation to the method by which the data is to be transferred to the Commonwealth I am advised that data on the Register of Stock Mortgages and the Register of Co-operative Charges will be recorded in Microsoft Excel spreadsheet format and uploaded onto the PPS register website through a secure server. I understand that the data will be encrypted and subject to authorised password access. In relation to the method by which data on the Vehicle Securities Register is to be transferred, the data will be transferred through direct electronic transfer from the VicRoads register to the PPS register. This would be done through a secure uplink, subject to encryption and authorised password access. As the PPS register is currently being built (and refined), and as operational testing is yet to be completed, there may be some variations to the methodology outlined above. However, I am advised that the data security protocols are of a high standard.

Clause 6 of the Bill inserts a new section 41 into the Chattel Securities Act 1987 enabling the Roads Corporation to provide written notice to the PPS Registrar or any variation of particulars to be held in the 'continued register', which will be, in effect, a historical database to be maintained by VicRoads. This clause enables Vic Roads to notify the PPS Registrar of any variations to particulars or the correction of any inaccuracies in particulars on the continued register to allow the PPS Registrar to make similar corrections as needed in relation to the details of migrated Victorian vehicle security interests for consistency. Based on the type of data to be transferred from the Vehicle Securities Register (as set out in Attachment A), and given the majority of secured interest holders are corporate entities, there is likely to be minimal personal information disclosed under this information sharing power.


In view of the above, I consider the powers conferred by this Bill in clauses 6, 17 to 20 that enable the transfer of certain information held by Victorian agencies necessary to assist the Commonwealth to establish the PPS register and for its future operation to be compatible with the right to privacy under section 13 of the Charter of Human Rights and Responsibilities.

Further, it is my view that the (good faith' immunity in clause 21, operating in conjunction with the information transfer powers in this Bill and to the extent that it raises any privacy considerations, does not limit the right to privacy. The immunity is not unlawful or arbitrary, does not preclude an individual from making a complaint to the Victorian Privacy Commissioner if they believe that there has been a breach of the Information Privacy Act 2000, and does not preclude merits or judicial review of the State's handling of personal information under these information-sharing powers.

B. Privacy protection at the Commonwealth level following transfer of data

I note the concern raised by the Committee that any Commonwealth regulations, which could modify or alter the operation of sections 153, 170 and 171 of the PPS Act, have not been made or that draft regulations have not been released. I can advise the Committee that the Commonwealth released a public exposure draft of the PPS Regulations in April 2010 which is accessible from the Australian Attorney-General's Department website at-

http://www.ag.gov.au/www/agd/adg./nsf/Page/PersonaIPropertySecurityReform PPSDownloads# §.

The Government has scrutinized the draft regulations and notes that the Victorian Privacy Commissioner has made a submission to the Commonwealth with respect to the draft regulations. A copy of that submission is at Attachment B. The Government has endorsed to the Commonwealth the comments contained in the Privacy Commissioner's submission. I understand that prior to the Commonwealth Government entering into caretaker mode the Commonwealth was considering the various submissions made in response to the draft regulations. I expect that further discussions will occur with the Commonwealth to refine the draft regulations following the Federal elections and prior to these regulations being made. Again, I flag that ·the Commonwealth Privacy Act 1988 applies to the PPS Registrar and to data contained on the PPS register. Section 173 of the PPS Act provides that an unauthorised search or use of personal information constitutes an interference with the privacy of an individual. Section 1 72 of the PPS Act provides penalties for unlawful searches including 50 penalty units for breaches by individuals and 250 penalty units for breaches by corporotions. The PPS Act also allows for claims for civil remedies flowing from a breach of an obligation arising under that Act to be brought in a court.

In conclusion, I consider that the provisions of the Personal Property Security (Statute Law Revision and Implementation) Bill 2010 do not limit the right to privacy under section 13 of the Charter of Human Rights and RespDnsibilities.

Should you have any queries in relation to this letter, or wish to arrange a meeting with officers from my department, please contact Mary Polis from my office on 96511124.

ROB HULLSMP Attorney-General

25 August 2010

The Committee thanks the Attorney-General for this response

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Attachment A

1.. Data to be migrated from the Victorian Register of Co-operative Charges

No. Datajield 1 Name of registered entity / mortgagor (the Co-operative) 2 Name of Mortgagee / chargee 3 Charge number and description of charge 4 Particulars of property subject to, and consideration given in favour of, charge 5 Date of execution of charge and date of registration

2. Data to be migrated from the Victorian Register of Stock Mortgages

No. Data field 1 Date of deed of mortgage 2 Names of the mortgagor and mortgagee (address details of the mortgagee is recorded only if

pravided by the mortgagee) 3 Value / details of consideration provided

Ci Description of the stock that is mortgaged

3. Data to be migrated from the Victorian Vehicle Securities Register

No. Data field 1 Client and Account Number of the registered security interest holder 2 Name, address and telephone contact of registered security interest holder 3 Description and particulars of motor vehicle subject of security interest 4 Type of security / finance interest 5 Date and time of registration

.6 End date of registration •

7 Notation of any State enforcement interest against motor vehicle

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Victorian Privacy Comrnissioner

Office of the Victorian Privacy Commissioner

Submission to

Australian Attorney General's

Department

on its

Personal Property Securities Regulations 2010 -Exposure Draft & Commentary

27 May 2010

Attachment B

355


356

1. Introduc.tion

Once complete; the Personal Property Securities Reform will hannonise and streamline more than 70 existing pieces of Commonwealth, State and Territory Legislation and establish a national personal property securities register (PPSR) with electronic regish'ation and search processes that will replace more than 40 different registers of security interests. While I recognise the benefits ofPPS refonn and support the proposed reforn,ls generally, there are issues within the Personal Property Securities Regulations 201 0 - Exposure Draft & Commentary (the Regulations) which raise issues for individuals' privacy.

My concerns with the regulations are detailed briefly below.

2. Regulation 5.6 - Verification statements - publication as alternative

This regulation allows the Registrar to publish a single verification statement in relation to a large number of registration events on a website maintained by the Registrar. Section J58(1)(b) of the Personal Property SecUI;ities Act 2009 (the PPS Act) allows this where the Registrar considers that it would be inconvenient for verification statements to be sent to each secured party (e.g. to assist the migration process).

As I commented in my previous submission (in November 2009) on the regulations, while regulation 5.6 states that such a verification statement may be published 'on a website maintained by the Registrar on the Internet', neither the regulations or the PPS Act make it clear as to what personal information will be included in a verification statement.

The publication of verification statements on a public website (in relation to new.registrations or migrated registrations) will have obvious privacy implications for individuals whose personal infonmition is included in them. Ifthe same· information from a Financing Statement (e.g. a grantors name and date of birth (DOB» is included in a 'bulk' verification statement, this means that the publicwill have general a,ccessto name and DOB infonnation, creating a clear risk that these statements may be used to facilitate identify fraud.

Access to an individual's name and DO~ shOUld be strictly limited. While this infornlation appears on the PPS Register (and ideally, access to DOB would only be returned on searches to distinguish between grantors that are identical) currently, the fee required to search the Register will act as an indirect privacy protection. If DOB is made generally available, this protection disappears.

The regulations should therefore clearly.set out the information to be included on a Verification Statement, limiting those details to what is necessary to fulfil the purpose of publishing the verification statement (e.g. DOB information should not be included).

PriVDCY Victoria - Submission to AGO (Cth). Personal Property Securities Regulations Page)


I also note that the Registrar publishing verification statements on the internet under regulation 5.6 as opposed to providing direct notifications has additional consequences for secured parties and grantors - who may be unaware not only that their information is on the Registrar's website, but as a consequence, that it has been included on the PPS Register. In Illy view, it is preferable that secured parties receive direct notice from the Registrar about migrated interests, and that in all other circumstances (data migration from existing registers aside) the regulations restricuhis power to be used only in therarest of circumstances.

3. Regulation 5.8 -Access to the Register prohibited

Under section 170(3)(d) of the PPS Act the Registrar must give a person access to the PPS Register to search for data if, amongst other things, access to the data is not prohibited by the regulations. Under regulation 5.8 the. Registrar may deny access where a court has ordered information to be withheld, or where the Registrar considers that it is in the 'public interest' that access to the data should not be permitted.

Provision for an individual to apply to the PPS Registrar to have their information prohibIted from a search is. aI) .. appropriate privacy safeguard. However, in my view, currently regulation 5.8 does not go far enough to address privacy concerns.

The term 'the public interest' may be an onerous concept for the Registrar to interpret, without guidelines as to what this term means. As I have previously submitted, in order for the 'public interest' powe~ to be transparent, the considerations that the Registrar must take into account should be set out in the regulations, with one of the grounds for witliholding access being where the public interest in protecting the privacy ofthe individual's information outweighs the public interest in providing access in all the Circumstances. Provision should also be made so that individuals receive sufficient notice of their right to apply for restricted access to their details. If individuals are unaware of thisrigltt, then they will be unable to exercise it.

Finally, consideration should be given to providing the Registrar with a power in the regulations to limit searches by certain individuals. FOT example, where an individual or organisation has searched the PPS Register for an unauthOrised purpose, the Registrar should have the power to refuse that individual or organisationJhe right to conduct further searches in general or further searches in relation to specific categories of property.

I, ~ i?, , I

/k/ . / , ¥tt.r!~ I:{J~. . HELEN VERS" Privacy Commiss oner

Privacy Victoria - Submission \0 AGD (Cth), Personal PropeI1y Securities Regulations Page 2

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Primary Industries Legislation Amendment Bill 2009

The Bill was introduced into the Legislative Assembly on 22 June 2010 by the Hon. Joe Helper MLA. The Committee considered the Bill on 26 July 2010 and made the following comments in Alert Digest No. 10 of 2010 tabled in the Parliament on 27 July 2010.

Committee's Comment

Charter report

Freedom of movement - Extension of the ban on removing items from quarantine area to items with no connection to livestock - 'any other material'

Clause 24 extends the ban on removal of items from a qua ron tine area without permission to items that have no connection with livestock. The Committee is concerned that clause 24 may leave the prohibition's effect unclear to people subject to the ban. It will write to the Minister seeking further information.

The Committee notes that clause 24 amends s. 11(b){ii) of the Livestock Disease Control Act 1994, an offence provision that regulates all certain conduct in quarantine areas regardless of the content of a quarantine notice. The amendment is as follows:

A person must not-

(b) without the written authority of an inspector-

(ii) remove from a quarantine area any livestock product, fodder or fittings or any soil, sand or any other material I:lfiJ6R which d:-se8sed /fyesteek R8ye BeeR kefiJt 8 ... witR whicR fi.ise8Sed liv-est6ek R8v-e R8d e6Rtect.

Penalty: 60 penalty units.

Clause 24 thus extends the ban on removal of items from a quarantine area without permission to items that have no connection with livestock. The Committee considers that clause 24 may engage the Charter's rights to freedom of movement and to property.

The Explanatory Memorandum remarks that clause 24:

amends section 11(b){ii) of the LDC Act so that the prohibition against removing froin a quarontine area any livestock product, fodder or fittings or any soil, sand or any other material, applies without qualification. This ensures that it is not necessary to know with certainty that the livestock is diseased for the prohibition to apply.

The Committee observes that, in the case of 'soil, sand or any other material', clause 24 goes beyond this rationale, as there is now no requirement of any connection to livestock for items in this category. The Committee is concerned that the deletion of the qualifying words in s. l1(b)(/i} may leave the prohibition's effect, and especially the words 'or any other material', unclear to people subject to the ban.

The Committee will write to the Minister seeking further information as to the meaning of s. 11(b}(ii), if amended by clause 24, of the term 'any other material', Pending the Minister's response, the Committee draws attention to clause 24.

Minister's Response

358

Thank you for your letter of 28 July 2010, expressing the Committee's concerns with clause 24 of the proposed Primary Industries Legislation Amendment Bil/2010 (the PILA 2010 Bill).

As requested, 1 provide the following advice in relation to the Committee's concerns.

Clause 24 of the PILA 2010 Bill amends section 11 of the Livestock Disease Control Act 1994 (the LDC Act) that requires written authority from an inspector for the removal of certain things from a


quarantine area. Section 11 of the LDC Act must be read in conjunction with section 110 of the LDC Act, which provides for the issue of the quarantine notice to be served directly on the owner or person in charge or apparent control of the premises or place concerned. Thus, as is the current practice, the inspector will have direct contact with the individual concerned who will be made aware of their responsibilities by the inspector .. The inspector will also provide support and guidance for the duration of the quarantine notice. Thus in practice there will be no inherent uncertainty with the application of section 11 as proposed to be amended. I also advise that a quarantine notice is only issued in limited circumstances, those being in relation to an exotic disease, for example foot and mouth disease or a non exotic disease with the capacity to spread to humans, such as anthrax.

The intention of the amendment to section 11(b)(ii) is to improve disease control by tightening controls on the movement of materials that may be vectors for the spread of disease. Section 11(b)(ii) currently requires a person to seek the written authority of an inspector only where the 'other material' has had contact with diseased livestock or is located where diseased livestock has been kept. Distinguishing diseased livestock from healthy livestock within a quarantine area, and furthermore, whether it is diseased or healthy livestock that has been in contact with the thing capable of spreading disease, is not practicable or achievable in a rapid and dynamic disease control situation.

The term 'any other material' is considered and wifl be applied to only refer to things that can be vectors of livestock disease. The affect of the proposed amendment is that any material similar to a livestock product, fodder or fittings or soil or sand that is capable of spreading disease that is contained within the quarantine area, will be required to be treated cautiously by a farmer and for that person to apply to an inspectar if the material is to be taken from a quarantine area. This remaves the onus on the Department of Primary Industries to prove that the material had been in contact with diseased livestock. It is vital that in areas under quarantine, that the Department of Primary Industries has the necessary and unambiguous power to control and combat livestock diseases.

In closing, I also point out that the Statement of Compatibility was prepared by the Victorian Government Solicitor's Office and settled with the Human Rights Unit of the Department of Justice. Consistent with that Statement, I consider clause 24 to be Compatible with the Charter

Joe Helper MP Minister for Agriculture

19 August 2010

The Committee thanks the Minister for this response

Private Security Amendment Bill 2009

The Bill was introduced into the Legislative Assembly on 27 July 2010 by the Hon. Bob Cameron MLA. The Committee considered the Bill on 9 August 2010 and made the following comments in Alert Digest No. 11 of 2010 tabled in the Parliament on 10 August 2010.

Committee's Comment

Charter report

Fair hearing - Protected information - Closed hearings

The Committee notes that clause 23, inserting new sections 150A to 150E, provide rules for the conduct and determination of proceedings to review a refusal to give or renew, or to cancel, a

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360

private security licence or registration, where the Chief Commissioner specifies under new section 150A that the graunds for refusal or cancellation were based on protected information.

New section 150C(1) provides that VCAT must first determine whether the information is 'protected information'. Clause 4, amending existing s. 4, defines 'protected information' to mean intelligence, a document or a thing whose production or inspection either:

• 'is likely to ... reveal the identity of':

o 'a member of the police force who provided [the] information'

o 'a person who has provided a member of the police force with [thelinformation'

o 'a person whose name appears in ... information provided to a member of the police force'

o 'a person who is or has been the subject of an investigation by a member of the police force'

• 'is likely to ... put' any of the above persons' 'safety at risk'

• 'places at risk an ongoing investigation'

• 'risks the disclosure of any investigative method'

• 'is otherwise not in the public interest'

To the extent that VCAT decides that the information is protected information, new section 150D(3)(a) provides that 'VCAT must take all steps and precautions to prevent the release of that information' and new sections 1500(4) and 150£(4) exempt the Commissioner and VCAT from explaining their reasons for any decision to the extent that those reasons involve protected information.

New section 150C(3) provides for closed sessions where only the Chief Commissioner and a 'special counsel' 'are entitled to be present' and to make submissions. New section 150C(2) permits VCA T to determine whether or not information is 'protected information' in such a closed session. New section 1500(1) provides:

Without limiting any other power of VCA T conferred by or under this or any other Act if VCA T decides that any of the evidence adduced under section 150C(3) is protected information, the provisions of that subsection continue to apply to the hearing of the proceeding to the extent that it relates to that protected information.

New section 1508 requires VCAT to appoint a 'special counsel' to represent the applicant's interests. New section 1508(4) bars the special counsel from taking 'instructions' for the applicant or the applicant's representative once the counsel has received a confidential application or the hearing has commenced, except for 'written questions' approved by VCAT 'after hearing submissions from the Chief Commissioner on their content' under new section 1500(3)(b).

The Committee observes that the above regime appears to differ from:

• other Victorian regimes for hearings based on protected information, which provide for several options for dealing with that information, including merely limiting the disclosure of confidential affidavits to some persons, based on the court's judgment of the 'public interest'.

• other Australian regimes that the High Court has upheld as constitutional on the basis that decision-makers under those regimes are 'not directed as to which particular steps may be taken' to maintain confidentiality and provide that 'steps taken maybe provisional in the sense that they may be varied, added to or subtracted from, as the exigencies of the litigation ... progressively appear'. In this regard, it is not clear whether new section 1500(1) requires VCAT to continue to hold a closed hearing under new section 150C(3) if it determines that the information is protected information.

~ -----------


o fair hearing requirements specified by the European Court of Human Rights, which bar decisions being made on the basis of closed information unless that information is a minor part of the decision or where it consists of specific factual assertions that can be and are put to the party affected by them.

The Committee therefore considers that clause 23 may engage the Charter right of applicants to have their civil proceeding 'determined ... after a fair ... hearing'.


The limitation will operate in some cases to prevent applicants from knowing the full case against them and directly presenting their case to VCAT. However, protections are in place to ensure that the right to a fair hearing is not unreasonably limited. These include:

The fact that VCAT must determine whether or not the information does actually constitute 'protect information' for the purposes of the bill (new section 150C). This ensures that the special procedures will only apply where there is a genuine need to mointain the confidentiality of that information.

The fact that VCAT (itself a 'public authority' for the purposes of the charter) is given the power to determine what weight to give to protected information in its deCision-making process (new section 150D(2)(a))

The appointment of special counsel to ensure that the rights of the applicant are represented at the hearing ....

... [T]he scheme at issue here differs in two fundamental ways from those at issue in the European ... decisions. First, the matters at stake for the appellants in those cases ... were of far greater consequence than the matters at stake for applicants for a private security licence. Secondly, new section 150D(3)(b) ... ensures that the special counsel can adequately represent the applicant's interests at the hearing ...

However, the Committee observes that:

e The definition of 'protected information' inserted by clause 4 is not limited to information where there is a 'genuine need... to maintain... confidentiality'. Rather, para (a) covers information that 'is likely to ... reveal the identity' of various people, without any assessment of whether that information is confidential and the extent to which there is a need to maintain confidentiality. To this extent, the definition is broader than similar definitions in regimes that have been upheld as confidential by the High Court. While a similar definition is used in other Victorian laws, those other regimes do not specify any mandatory consequences that follow if information is held to fall within that definition and, in particular, permit courts to vary the approach they take according to 'the extent' to which the information falls within the definition.

o VCAT's determination of the weight to be given to the information will be made without reference to the applicant's response to the information. For example, VCAT will not know whether a source relied upon by the Commissioner for Police is biased against the applicant. Also, it is not clear whether VCAT's obligations under the Charter will apply to decisions made under new sections 150A to 150E, as VCAT's obligations only extend to decisions in an 'administrative capacity' and do not apply if another provision (such as new section 150D(3)(a)) makes it unreasonable to act compatibility with human rights.

<11 The special counsel is generally barred by new section 1508(4) from receiving instructions from his or her client. While the process in new section 150D(3j(b) does provide for seeking further instructions, thot process requires prior approval of VCAT after submissions from the Commissioner of Police, it is limited by their discretionary nature and the complete lack of confidentiality of the counsel's communication to his or her client.

361


The Committee will write to the Minister seeking further information as to whether or not new section 150D(1} makes it mandatory for VCAT to continue to hold a closed hearing once it has determined thot any information on which the Commissioner bosed his or her decision is protected information. Pending the Minister's response the Committee refers to Parliament for its consideration the question of whether or not clause 23, by providing for procedures to determine applications for review of licensing decisions on the basis of information that is not disclosed to the applicant, is compatible with the Charter's right to a fair hearing.

Member's Response

362

Thank you for your letter of 11 August 2010 on behalf of the Scrutiny of Acts and Regulations Committee of the Parliament of Victoria ("Committee ") requesting my advice in relation to amendments to the Private Security Act 2004 ("Act") contained in the Private Security Amendment Bill 2010 ("BiII").

As you will be aware, the purpose of the Bill is to implement the first stage of the COAG Agreement made in July 2008 so as to bring harmony between the various Australian laws that regulate the private security industry. Under the agreement, Victoria, like other jurisdictions, is obliged to amend its law so that the nature, and even existence, of any criminal intelligence that was taken into account in refusing to grant a security licence is not disclosed to the applicant or indeed disclosed generally.

An applicant who· has been convicted or found guilty of certain prescribed offences within a specified timeframe will not be granted a licence. The Act already provides for this; although, the Bill will enlarge the list of affences that will so disqualify a person fram successfully applying for a licence. To avoid this, some criminal gangs put forth a member for licensing who does not have a disqualifying criminal history. Such a person is known in the industry as a cleanskin and the gang may organise for him or her to work as a security guard or crawd controller at an entertainment venue and use the person as a gateway to distribute drugs within those premises. In order to prevent this, the Chief Commissioner of Police - the regulator of the private security industry in Victoria - may refuse to grant a licence to a person who is the subject of sensitive police investigation, for instance, an investigation that related to the applicant's gang membership.

It is important that this criminal intelligence remain confidential. To release it publicly, or even simply to the applicant, may compromise an on-going police investigation, or the safety of the officers undertaking it, or even to disclose the means by which undercover surveillance operates. Furthermore, for law enforcement agencies of one State to have the confidence to share such information with their counterparts in another State, there must be a system in which it is made clear that such information will not be disclosed. The COAG Agreement recognises this and obliges jurisdictions to prevent its release even in circumstances in which the disappointed applicant is given no reason as to why his or her security licence application has failed. Naturally, under statute and general administrative law principles, a person denied the means by which to make a livelihood should be given reasons on which the decision was based and possess the ability to have that decision judicially reviewed.

The Bill seeks to balance these competing interests by preventing the release of criminal intelligence while at the same time allowing an unsuccessful applicant the right to bring review proceedings of the decision to refuse a licence in VCA T. It sets out a procedure whereby the applicant is informed by the Chief Commissioner that the application is refused for reasons that cannot be made known to him but that he can seek review of the decision in VCAT. If the applicant does seek review, the Chief Commissioner then makes a written record of those reasons and provides them to VCAT. In all cases, a special counsel is appointed to represent the interests of the applicant and the applicant does not pay for these services. The special counsel undertakes to keep confidential any evidence disclosed to him or her during the proceedings. The proceedings are held in closed session so that the applicant


and the public are excluded fram it. However, the special counsel is able, with leave of the tribunal, to obtain further instructions from the applicant.

The Chief Commissioner and the special counsel will make submissions as to whether the criminal intelligence falls within the statutory definition of criminal intelligence (called "protected information" in the Bill). If VCAT determines that it does fall within the definition, argument will turn to the weight that should be given to it in reviewing the decision to refuse the licence. If VCA T determines that it doesn't fall within the definition, the information is released and during the remainder of the proceedings, the applicant is admitted. (If the Chief Commissioner considers that the release of the information would cause greater harm than would the issuing of a licence to the applicant, the Chief Commissioner can agree to grant the licence and the proceedings are halted.)

Where VCA T determines that the information does fall within the definition, the applicant will continue to be excluded from the proceedings. To allow him or her to be admitted at this stage would defeat the stated intention of the COAG Agreement, namely, the prevention of the release of the criminal intelligence. The special counsel will continue to represent the interests of the applicant by arguing that the licence should be granted despite the existence of the intelligence. Finally, VCA T will determine, overall, whether the licence should be granted and will report the outcome to the applicant.

This procedure is based on that found in other Victorian legislation, such as in the Casino Control Act 1991, and was the subject of extensive consultation with the Courts and Tribunals Unit of the Department of Justice, the new President of VCA 1", and the Victorian Government Solicitor. Victoria is alone (save also for the Australian Capital Territory) in being obliged to develop legislation in conformity with human rights legislation and, accordingly, has had to design a review mechanism that satisfies both the terms of the COAG Agreement and the provisions of the. Charter.

The Statement of Compatibility was drofted by the Victorian Government Solicitor and advice from him stated that the review procedure in the Bill is compatible with the Charter of Human Rights and Responsibilities in as much as the right to a fair hearing is not unreasonably limited. The statement supports this by referring to the fact that VCAT must: determine whether the criminal intelligence falls within the definition of protected information; what weight should be given to that evidence; and appoint a special counsel who has full access to that information. The statement recognises that the procedure endeavours to ensure that the interests of the applicant are fully considered and that arguments in favour of being granted a licence are openly debated by a barrister with complete knowledge of the case made out against the applicant to the greatest extent possible short of the applicant being told highly confidential police information. Inevitably, a compromise must be reached in such cases that protects, on the one hand, the applicant's right to a fair hearing and, on the other hand, the public's right to have criminal activity appropriately investigated and minimised. As stated recently in Gypsy lokers Motorcycle Club Inc v. Commissioner of Police [2007} WASCA 49:

"It appears, therefore, that both the European Court of Human Rights and the courts of the United Kingdom accept that there will be circumstances in which the normal requirements of procedural fairness must yield to the public interest in protecting the confidentiality of investigative material. They do sa, hawever, on condition that there are judicial safeguards in place to protect the fairness of the proceedings."

In all, and taking into account the public policy requirement for police investigations to continue in a protected and effective manner, I believe that the applicant in these circumstances is offered a fair hearing in having his case reviewed in VCAT within the requirements of the Victorian Human Rights Charter.

In your letter, you state that the Committee notes that the definition of "protected information" in the Bill is wider than that considered, and upheld as legally valid, by the High Court in K-Generation Pty Limited v. Liquor Licensing Court {2009} HCA 4. But it does not necessarily follow that the Bill's definition would nat similarly be considered valid by the court. Victoria, like other States, will

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continue to monitor relevant jurisprudence from the High Court and, if need be, will amend its legislation to conform with future case law. The COAG Agreement does not provide a definition of "criminal intelligence" and, accordingly, jurisdictions are at liberty to form their own parameters of what it is to constitute.

Further, the Committee notes that VCAT's determination of the weight to be given to the information will be made without reference to the applicant's response to the information and gives the example that VCAT will not be able to know whether a source relied on by the Chief Commissioner is biased against the applicant. However, VCA T, in such circumstances, would be likely to give substantial weight to factual information concerning the applicant and be cautious of mere opinion about him that is not referenced to demonstrable specifics. In any event, the special counsel would be able to cross-examine any witness relied on by the Chief Commissioner and so test his or her evidence for bias.

Finally, the Committee notes that "the special counsel is generally barred by new section 150B(4) from receiving instructions from his or her client". This is not so. Before becoming privy to the protected information, the special counsel can confer to an unlimited extent with his or her client. However, once the special counsel hears the protected information, he or she can approach the client only with leave of VCAT. The policy behind this rule is to ensure that the very questions themselves that the counsel poses the client to elicit further instructions do not disclose some or all of the subject matter criminal intelligence or the identity of the persons who have been involved in its formation.

Thank you for bringing these matters to my attention and for giving me the opportunity to respond to the Committee's queries and concerns.

Bob Cameron MP Minister for Police and Emergency Services

25 August 2010

The Committee thanks the Minister for this response

Committee Room 30 August 2010

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Tuesday, 14 September 2010

Education and Care Services National Law Bill 2010 fire Services Commissioner Bill 2010

Government (Political) Advertising Bill 2010 Judicial Commission of Victoria Bill 2010

Road Safety Amendment (Hoon Driving) Bill 2010

Ministerial Correspondence

Marine Safety Bill 2010 Traditional Owner Settlement Bill 2010

Transport Accident and Accident Compensation Legislation Amendment Bill 2010

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Scrutiny of Acts and ""'T·.n., .. Committee

Education and Care Services National Law Bill 2010


Purpose

1 September 2010 2 September 2010 Legislative Assembly Hon. Maxine Morand MLA Minister for Children and Early Childhood Development

The Bill adopts the Education and Care Services National Law (the 'National Law') which is to be hosted by the Victorian Parliament and set out in the Schedule to the Victorian Bill.

The Bill establishes the National Quality Framework (the NQF) and the Australian Children's Education and Care Quality Authority (the 'Authority') to oversee its administration and provides for a role for Regulatory Authorities in each jurisdiction (in Victoria the Secretary of the Department and Education and Childhood Development) in approving persons and services that provide early childhood education and care. The probity provisions in the Working with Children Act 2005 (Vic) will apply in Victoria. [14] The Victorian Department will also monitor compliance with the National Law and assess and publicly rate services against the NQF.

Note: From the explanatory memorandum - The principal objective oj the Bill is to provide a national approach to regulation, assessment and quality improvement jor early childhood education and care and outside school hours care; replace existing separate licensing and quality assurance processes jor pre-school (kindergartens), long day care, jamily day care and outside school hours care; and establish a public rating system jor education and care services.

Background

1. The main purpose of the COAG agreement was the establishment of a jointly governed unified national quality framework (NQF) for early education and care and school-aged care which replaces existing separate licensing and quality assurance processes.

2. The new national quality framework will become operational from 1 January 2012.

3. The National Law will establish a new national body and a national licensing system and introduce a system of nationally consistent approval processes for providers and services.

4. The introduction of a public national rating system based on the new National Quality Standard (the 'NQS') which will provide information to parents relating to the quality of early childhood education and care services. The !\IQS will contain seven quality areas that will be defined in the associated regulations.

5. A key objective of the National Law is to reduce the significant duplication that exists under the current national and state or territory-based regulatory, licenSing and approval systems. It will introduce a system of nationally consistent approval processes for providers and services.

6. The Authority will be responsible for the implementation and ongoing administration of the NQF and will have a key role in monitoring and promoting its consistent application across Australia.

7. State and Territory Regulatory Authorities will remain accountable to its own Minister and will continue to be the main point of contact for services through its operational responsibility for the NQF.

8. Under the NQF an approval to provide an education and care service is valid in all participating jurisdictions.

9. The regulations to accompany this law are currently being developed and will be subject to consultation in the near future.

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10. A further Bill will be considered by Parliament in 2011 to address the consequential amendments to the Children's Services Act 1996 and other consequential amendments.

11. Services that are not covered by the NQF, such as occasional care, 3 year old activity groups and limited hours service at sport and leisure services will continue to be regulated under the Children's

Services Act 1996. A provider that operates a long day care service under the NQF and an occasional care service at the same premises will not be required to seek separate approvals.

12. As a transitional measure existing approved providers and services and certified supervisors will be moved over form the old system to the new.

The National Law in outline

Part 1 sets out the objectives and guiding principles, the definitions to be used and the scope of education and care services subject to the National Law.

Parts 2, 3, and 4 establish a national system of approvals to provide and operate an education and care service and to be a certified supervisor. These Parts set out the requirements for obtaining approval and the decision-making powers and responsibilities ofthe Regulatory Authority in participating jurisdictions.

Part 5 sets out the process for assessing and rating services against the National Quality Standard.

Part 6 creates a range of offences regarding the operation of education and care services, such as inadequate supervision of children, inappropriate discipline and staffing arrangements and the presence of unauthorised persons on service premises. The Part also places reporting requirements on a provider in respect to reportable incidents.

Part 7 provides for the tools that the Regulatory Authority may use to ensure compliance with the National Law including compliance notices, prohibition notices and enforceable undertakings.

Part 8 ensures the right of review (internal and external) of decisions made by a Regulatory Authority.

Part 9 provides powers to authorised officers engaged by Regulatory Authorities to monitor and enforce the National Law.

Part 10 sets out the functions and powers of the Ministerial Council in relation to the National Quality Framework, the National Quality Standard, the National Law and the Authority.

Part 11 establishes the Australian Children's Education and Care Quality Authority (the 'Authority') and its Board and provides for the engagement of a Chief Executive.

Part 12 sets out the functions of the State Regulatory Authorities, which include approving providers and services, certifying supervisors, assessing and rating services, and monitoring compliance with the National Quality Framework, the National Quality Standard, the National Law, and the national regulations.

Part 13 addresses information and privacy issues, including providing for the application of Commonwealth privacy and freedom of information laws.

Part 14. contains a range of miscellaneous provIsions, including the establishment of the Australian Children's Education and Care Quality Authority Fund, reporting requirements, legal proceedings, and provides for the development, publication and commencement of national regulations.

Part 15 provides for transition from existing legislative and regulatory arrangements to the new arrangements set out under this national Law.

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Delegating legislative power to the executive - Whether appropriate - Commencement by proclamation - National scheme legislation

The proposed Act is to commence on proclamation. The Committee notes that the provision will enable the simultaneous commencement of the National Law in other participating jurisdictions, and as such there may be appropriate reasons to allow for a commencement by proclamation provision. [2]

Parliamentary supervision of regulations - Scrutiny and disallowance of regulations made by Ministerial Council made under the National Law

The Bill provides that certain Victorian Acts do not apply to the National Law including the Subordinote Legislation Act 1994. [5] National regulations made pursuant to the National Law are to be published on the New South Wales Legislation website. [302] The Victorian Member of the Ministerial Council must table any national regulation so made in each House of the Parliament. [303] The Scrutiny Committee may report to the Parliament on national regulations as though they were statutory rules pursuant to the Subordinate Legislation Act 1994. A national regulation may be disallowed by the Parliament. However, a disallowed regulation does not cease to have effect unless it is disallowed by a majority of participating jurisdictions. [303]

Delegation of legislative power - Modifications to certain Commonwealth Acts by regulations

The Committee notes that for the purposes of the National Quality Framework (the 'NQF') certain provisions allow regulations to modify two Commonwealth Acts, these are the Privacy Act 1988 (Cth), and the Freedom of Information Act 1982 (Cth). Further regulations may modify the application of the State Records Act 1998 (NSW) that will apply for the purposes of the NQF. The explanatory memorandum in introducing these sections provides-

In the interests of the nationally consistent application of this Law, Commonwealth information and privacy laws will be applied instead of separate laws in each participating jurisdiction.

However, in respect to the relevant sections the explanatory memorandum does not provide any assistance as to the necessity or desirability to include provisions that allow a subordinate instrument to modify primary legislation. [263, 264 and 265]

The Committee notes that in general a power to allow a subordinate instrument to modify an Act should be considered to be an inappropriate delegation of legislative power.

Inappropriate delegation of legislative power

The Committee will write to the Minister seeking further advice whether she is satisfied that there is a need to include provisions in the National Law that permit regulations to modify an Act.

Right to be presumed innocent - Suspension where person is charged with an offence

The Bill provides that the Regulatory Authority may suspend a provider approval if the approved provider has been charged with an indictable offence. [25]

The Committee notes the Statement of Compatibility provides-

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It does not affect the criminal proceeding relating to the person. Nor does it presume that person to be guilty. Rather, it is simply a precautionary measure which protects children from exposure to persons charged with indictable offences, who may be unsuitable or inappropriate to engage in the proVision of education and care services, until the matter is resolved. The suspension can only be in place for six months. Further, clause 26 provides that prior to any suspension, the person charged


with the offence has the opportunity to make a written submission to the regulatory authority providing reasons why the suspension should not take place.

Privilege against self-incrimination - Limitation concerning mandatory documents

The National Laws in the Schedule to the Bill provide monitoring and enforcement powers (Part 9 of the National Laws) including a requirement to give information, answer questions and produce documents. The privilege against self-incrimination is provided in the National Law, save for the requirement to produce a document required to be kept under the National Law. In respect to such documents a direct and derivative use immunity applies in criminal and civil proceedings other than criminal proceedings under the National Law. [211 and 219] (The limitation to the privilege in respect to documents is reported in the Statement 0/ Compatibility)


1F~ll"e Services Commissioner Bill 2010


IPlUllrpose

The Bill-

1 September 2010 2 September 2010 Legislative Assembly Hon. Bob Cameron MLA Minister for Police and Emergency Services

o creates the position of Fire Services Commissioner (the 'Commissioner') and provides for the functions and powers of the Fire Services Commission.

o amends the Forests Act 1958 to make the position of Chief Fire Officer in the Department of Sustainability and Environment a statutory position.

o makes related amendments to the Emergency Management Act 1986, the Country Fire Authority Act 1958, the Metropolitan Fire Brigades Act 1958 and Forests Act 1958.

Background

The Bill establishes the office of the Commissioner as a Governor in Council appointment. The Commissioner will be the permanent state controller responsible for the planning and preparation and overall response of the fire agencies to major fires. For this purpose the Bill will amend the Emergency Management Act 1986.

The Commissioner may delegate the State Controller responsibility to the chief officers of the fire services agencies. [26]

The Commissioner will be responsible for driving a reform program to improve the fire services agencies' operational performance focused on enhancing the operational capacity and capability of the fire services agencies and in particular their ability to work together. [4-30]

The Commissioner must provide the Minister with an annual report which must be tabled in the Parliament. [31 and 321

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The Bill also amends the Forests Act 1958 to make the Chief Fire Officer of the Department of Sustainability and Environment a statutory position. [50] The Bill also imposes a duty on the Secretary to carryon sufficient work in State forests, parks and lands for the prevention and suppression of fire and with a duty to warn the community when the Secretary considers it necessary for the purposes of protecting life and property. [51 and 52]


Government (Political) Advertising Bill 2010

Introduced Second Reading Speech House Member introducing Bill Private Members Bill

Background

1 September 2010 1 September 2010 Legislative Council David Davis MLC

The Bill seeks to prevent the Government misusing taxpayers' money on political advertising and information campaigns by Government departments and authorities, especially during election periods.

The Bill sets out criteria and principles for conducting a government advertising campaign (a campaign) and establishes an Independent Government Advertising Campaign Review Panel (the Panel). The Panel may issue a Notice of Compliance (a Notice) if the proposed campaign is consistent with the advertising principles. [4 to 6]

A campaign may not be undertaken without a Notice being given by the Panel. [7]

The Minister may issue an exemption certificate from the need for a Notice in certain defined circumstances such as a public safety or health campaign, an emergency, a matter of extreme urgency or other extraordinary circumstances. [9]

The Bill prohibits a campaign within 60 days of an election where the Parliament expires under section 38 of the Constitution Act 1975 or in any other case from the time Parliament is dissolved to election day, unless it is an exempt campaign under section 9. [10]

The Bill prohibits a campaign other than an exempt campaign during the period of a by-election. [11]


Judicial Commission of Victoria 8m 2010


370

1 September 2010 2 September 2010 Legislative Assembly Hon. Rob Hulls MLA Attorney-General


!Purpose

The Bill creates the Judicial Commission of Victoria (the 'Commission'), which will investigate and resolve complaints and concerns involving Victoria's judges, associate judges, magistrates, coroners, judicial registrars and VCAT members (officers). Matters relating to both conduct and health issues may be raised in complaints from the public, or referrals made either by the heads of each court and VCAT or the Attorney-General.

The Bill amends Part 3AA of the Constitution Act 1975 to replace the current reference to investigating committee with references to investigating panel and repeal the provisions that deal with the judicial panel established under that Act and the provisions dealing with the functions and powers of the investigating committee which are redundant and superseded by the provisions in the Bill. [128 to 130]

The Bill repeals the Judicial College of Victoria Act 2001 and incorporates the current functions in that Act within the new Commission. [24,26-27 and 125]

Background

1. The Bill establishes the Commission as an independent body with a conduct division which will investigate and hear complaints and concerns about judicial officers and an education division which will provide for the education and training of judicial officers, judicial registrars and VCAT members, assuming the current responsibilities of the Judicial College of Victoria. [4-7 and 26-27]

2. The Commission will have a governing Board of ten members. The Chair is the Chief Justice of Victoria. Six members are the heads of the five courts in Victoria and the head of VCAT. The four remaining members are people of high standing in the community and are appointed by the Governor in Council on the recommendation of the Attorney-General. The Attorney-General will make these recommendations following consultation with the Chief Justice. [8 to 18]

3. The Governor in Council on the recommendation of the Attorney-General will appoint a Chief Executive Officer who is responsible for the administration of the Commission. The CEO will be an administrative office head who has, on behalf of the Crown, all the powers and duties of an employer in relation to the public servants who work for the commission. The CEO may, but is not obliged to, report to the Attorney-General on any matter relevant to the performance of the commission's functions. [19 to 25]

4. A member of the public may make a complaint to the Commission about any conduct of a judicial officer whether or not the conduct was in court. The Commission may also receive and investigate referrals from the heads of jurisdiction or from the Attorney-General. The Commission has a duty to investigate complaints and referrals that are made under the Act unless the matter is too remote in time or the complainant is vexatious. A complaint or referral may be made even though the matter is or has been the subject of an investigation by police or by any other law enforcement agency or regulatory body or has been prosecuted in a court.

The Commission may take one of four actions in response to a complaint regarding a judicial officer-

€I it may dismiss the complaint on specified grounds,

G it could determine that no further action is necessary where the matter has been resolved or the complaint relates to a relatively minor matter that occurred years ago,

o it may refer the complaint to the relevant head of jurisdiction, with the option of making recommendations as to how the head could deal with the complaint,

o it may refer the complaint to an investigating panel if it appears the complaint, if substantiated, could justify consideration of removal from office by Parliament.

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The most serious action the commission may take is to refer a matter to an investigating panel. The panel is an independent body, taking over the position currently held by the investigating committee under Part 3AA of the Constitution Act 1975. An investigating panel has three members appointed by the Commission, two of whom must be current or former judges or magistrates in Australia. The third member is to be nominated by Parliament. The panel may hold private hearings, as well as receiving written submissions from the judicial officer. In appropriate circumstances, the panel may hold public hearings. In cases that do not justify removal, a report is made to the head of jurisdiction. This report can include recommendations as to how the head of jurisdiction may deal with the complaint or concerns. [28 to 68]

5. Where removal of a judicial officer is considered the appropriate action, the investigating panel must first find there are facts that could justify removal of the judicial officer due to proved misbehaviour or incapacity. In such cases, a report must be presented to the Governor in Council and to the AttorneyGeneral, who must cause the report to be laid before both houses of Parliament. The matter is then considered by Parliament. [65 to 66]

Note: From the Second Reading Speech - The Bill maintains the current constitutional protections for judicial officers and does not change Parliament's role as the ultimate decision-maker invested with the power to remove a judicial officer. The Bill therefore does not change the grounds for removal of office set out in Part 3AA of the Constitution Act 1975.

6. The Bill adopts a modified process for complaints against judicial registrars and non-judicial officers and VCAT officers. If the investigating panel is of the opinion that the complaint or any part of it is substantiated and there are facts that could justify removal of the officer due to proved misbehaviour or incapacity, this must be reported to the Attorney-General. If the matter is substantiated in any part, but does not warrant consideration for removal, the matter must be referred to the relevant head of jurisdiction of that officer. [88 to 114]

7. The Bill expands the powers of the heads of jurisdiction to include the ability to stand down an officer if grounds may exist for the removal of the officer and where there is a substantiated complaint may also direct the officer to participate in professional development or continuing education or training. [46 to 49]

8. The Bill deals with health investigations of judicial and non-judicial officers. If the Attorney-General or head of jurisdiction is of the opinion that an offiCer may be suffering from an impairment, disability, illness or condition that may affect the performance of the officer's duties, the head of jurisdiction or Attorney-General may request the Commission to investigate the matter. The Commission may, if it conSiders it appropriate, request the officer to undergo a medical or psychological examination. If the officer refuses to undergo the examination, the matter may be referred to the investigating panel or investigator, which could find that the non-cooperation of the officer could justify consideration of their removal from office. If the medical examination discloses that an officer is suffering from an impairment which affects his or her performance, but the impairment is not sufficiently serious to warrant removal from office, the commission may refer the matter back to the head of jurisdiction with recommendations as to how the matter should be dealt with. [39 to 45, 69 to 74]


Rights or freedoms - Access to justice - Vexatious litigants

The Bill provides that the Commission must dismiss a complaint or Part 4 referral (referral by the head of jurisdiction or the Attorney-General) in certain circumstances including where the complaint is made by a vexatious complainant. The Commission may declare a person to be a vexatious complainant. [36(1)(d), 52] (Refer to Charter report below)

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Rights or freedoms - Privilege against self-incrimination - Direct and derivative use immunity

The Bill provides certain investigation powers to investigating panels pursuant to the Evidence (Miscellaneous Provisions) Act 1958 (the 'Act'). The provisions of that Act (section 19C) require persons to answer questions even if they tend to incriminate them. The Committee notes that 19C(2) of the Act provides an immunity in criminal or civil proceedings against any compelled answers, information or documents given. However the Committee raises the issue as to whether the immunity extends to derivative use immunity. [75 and 106] (Refer to Charter report below)

Charter report

Fair hearing - Complete bar on complaints to the Commission by vexatious litigants

Summary: Clause 36(1)(d) provides that the Commission must dismiss any complaint made by a vexatious complainant without investigation. The Committee considers that clause 36(1)(d) may engage the Charter right of people declared to be vexatious litigants to a fair hearing. It will write to the Attorney-General seeking further information.

The Committee notes that clause 36(1)(d) provides that the Commission must dismiss any complaint 'made by a vexatious complainant' without investigation. Clause 3 defines a 'vexatious complainant' to include a person declared by the Supreme Court to be a 'vexatious litigant'. So, people declared by the Supreme Court to be vexatious litigants are completely barred from pursuing complaints against judicial officers. The Committee considers that clause 36(1)(d) may engage the Charter right of people declared to be vexatious litigants to a fair hearing.1

While the Committee appreciates that any system of complaints (particularly one concerning the judiciary) requires protection from vexatious complainants, it observes that, in New South Wales, this goal is achieved by providing that its Commission 'may' - not 'must' - 'disregard any complaint made' by a person deemed to be a vexatious complainant.2 By contrast, in Victoria, in the case of people declared to be vexatious litigants by the Supreme Court, such people will be unable to make complaints (including complaints about a Supreme Court judge) unless the Supreme Court itself revokes the declaration, even if the Commission would otherwise regard the complaint as meritorious.

The Committee will write to the Attorney-General seeking further information as to whether or not merely permitting (rather than requiring) the Commission to disregard a complaint by a veJCatious complainant is a less restrictive means reasonably available to achieve the purpose of protecting the Commission from vexatious complainants. Pending the Attorney-Generars response, the Committee draws attention to clause 36(1)(d).

Self-incrimination - Investigators investigating judicial officers may compel people to lead investigators to evidence of their own criminality

Summary: Clauses 75(1) and 106(1) permits investigating panels and investigators investigating judicial officers to oblige any person to lead them to evidence of their own criminality. The Committee considers that clause 75(1) and 106(1) may be incompatible with the Charter's rights with respect to self-incrimination. It will write to the Attorney-General seeking further information.

Charter s. 24(1).

Judicial Officers Act 1986 (NSW), s. 38(2).

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The Committee notes that clause 75(1) provides that investigating panels (investigating complaints or referrals about judicial officers) have the powers conferred by existing ss. 17, 18 and 19 of the Evidence (Miscellaneous Provisions) Act 1958 (the 'Act') to examine 'any person' on oath on penalty of imprisonment. Clause 106(1) provides investigators (investigating complaints or referrals about judicial registrars and VCAT members) with identical powers if the Commission permits. Under s. 19C(1) of the Act such a person is obliged to answer questions even if they would tend to incriminate him or her. Although s. 19C(2) of the Act provides that those answers are generally inadmissible in later proceedings, that immunity does not apply to information derived from those answers. So, clauses 75(1) and 106(1) permits investigating panels and investigators to oblige people to lead them to evidence of their own criminality. The Victorian Supreme Court has held that such a scheme limits the Charter's rights with respect to selfincrimination.3


It is a central tenet of the rule of law and an inherent attribute of a just and democratic society that those who administer the law are, and are seen to be, subject to that same law. To prev~nt future prosecutions relating to misconduct in public office on the basis of material which is now in the public domain risks undermining public confidence in the ability of the judiciary to discharge its functions competently, independently and with integrity.

Judges and other people subject to the bill exercise coercive and far ranging powers, such as the power to imprison and to award significant monetary damages or penalties.

As with other individuals who voluntarily accept positions of public responsibility, judicial officers are subject to a necessarily higher expectation of public scrutiny. Such people must accept a greater level of accountability where they are found to have abused the responsibilities of public office or have otherwise brought that office into disrepute thraugh improper or illegal behaviour ....

Consistent with the need to prosecute officers on the basis of facts freely and public available (such to exceptions regarding the direct use of incriminating evidence) there are no less restrictive means to secure this public policy objective.

The Committee observes that the compulsory examination powers in ss. 17-19 of the Act are not limited to examinations of judicial officers, registrars and VCAT members but instead extend to examinations of 'any person'. So, the powers conferred by clauses 75(1) and 106(1) may be used to compel the self-incrimination by the complainant, family, friends and neighbours of the judicial officer, and parties or participants in litigation before the judicial officer.

In light 0/ the judgement 0/ the Supreme Court 0/ Victoria and the application 0/ clauses 75(1) and 106(1) to people other than judicial officersl registrars and VCA T membersl the Committee considers that those clauses may be incompatible with the Charter's rights against sel/-incrimination.

The Committee will write to the Attorney-General seeking further in/ormation as to whether or not preserving derivative use immunity for people other than judicial o/ficersl registrars and VCA T members would be a less restrictive alternative reasonably available to achieve the public policy objective 0/ clauses 75(1) and 106(1). Pending the Attorney-General's responsel the Committee draws attention to clauses 75(1) and 106(1).


Re an application under the Major Crime (Investigative Powers) Act 2004 [2009] VSC 381.

374

Road Safety Amendment (Hoon Driving) Bill 2010



1 September 2010 2 September 2010 Legislative Assembly Hon. Tim Pallas MLA Minister for Roads and Ports

The Bill amends the Road Safety Act 1986 (the 'Act') to-


1. extend the vehicle impoundment, immobilisation and forfeiture scheme in Part 6A of the Act to the following offences -

(a) driving with a blood or breath alcohol content of 0.10 or higher for the second or subsequent time.

(b) driving with drugs present in blood or oral fluid, for the second or subsequent time.

(c) unlicensed driving for the second or subsequent time, except in circumstances where the person merely failed to renew their driver licence or permit. [4 and 5]

2. strengthen the way the motor vehicle impoundment, immobilisation and forfeiture scheme in Part 6A of the Act operates with respect to the following offences -

(a) disqualified driving for a second offence will attract impoundment and a third offence may attract forfeiture (not a fourth offence as currently).

(b) driving at 70 kilometres per hour or more over the applicable speed limit or 170 kilometres per hour or more where the speed limit is 110 kilometres per hour. 3 month impoundment will apply for a first offence and forfeiture for a second offence.

(c) dangerous driving in circumstances where a vehicle is driven at 70 kilometres per hour or more over the applicable speed limit or 170 kilometres per hour or more if the speed limit is 110 kilometres per hour. [4 and 5]

Extracts from the Second Reading Speech in respect to paragraphs 1 and 2 above-

... That review [Arrive Alive 2008-2010] has determined that penalties for drink and drug driving are currently inadequate and that the vehicle impoundment scheme should be extended to recidivist drink-driving and drug-driving offenders.

The Bill therefore provides that vehicle impoundment sanctions will be available in those cases were a driver is detected with a blood or breath alcohol concentration of 0.10 or higher for a second or subsequent time or where a driver is detected with drugs present in his or her system for a second or subsequent time. The offence of driving unlicensed for a second or subsequent time will also become subject to the vehicle impoundment scheme .

... That review has determined that tougher sanctions are required for extreme speeding offences. The Bill therefore provides that where a driver is detected driving at 70 kilometres per hour or more over the applicable speed limit or at a speed of 170 kilometres per hour in a 110-kilometres-perhour speed zone, that driver will face vehicle impoundment or immobilisation sanctions for up to three months for a first offence . ... Also, for a second extreme speeding offence, the court will be empowered to order the forfeiture of the vehicle.

... Accordingly, the Bill will toughen the vehicle impoundment and forfeiture sancNons for disqualified driving offences. It provides that a second offence may result in up to three months vehicle impoundment or immobilisation and a third offence may result in forfeiture of the vehicle.

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... The Bill provides that this initial impoundment or immobilisation period [currently 48 hours] will be increased across the board to seven days. This change will apply to all offences to which the vehicle impoundment scheme applies.

... the Bill provides that in all cases where a person appears before the court for an offence for which a three-month impoundment or immobilisation sanction may be imposed, the court will be required, upon a finding of guilt and upon the application of the police, to impose a vehicle impoundment or immobilisation sanction for at least 28 days.

3. enable police under Part 6A of the Act to immediately immobilise or impound a motor vehicle for 7 days upon detection of a tier 1 relevant offence or a tier 2 relevant offence. (Refer to Charter report) [4)1)(a)]

4. provide that, under Part 6A of the Act on a finding of guilt for a second or subsequent tier 2 relevant offence or any tier 1 relevant offence the court must on the application of the police, order immobilisation or impoundment of the relevant motor vehicle for 28 days. [16]

5. facilitate the use of steering wheel locks as a new method of motor vehicle immobilisation with the benefit of allowing immobilised vehicles to be towed to an alternative location. Police will have power to enter a vehicle to install such devices. [10 to 12, 14 and 15]

6. provide police with additional limited powers to search premises without a warrant for the purposes of locating and accessing a motor vehicle that is to be impounded, immobilised or forfeited under the Act. [6 to 8]

7. provide that when an impoundment or immobilisation order or a forfeiture order is sought with respect to a motor vehicle, the police may concurrently apply for a search warrant to facilitate access to the vehicle. [26 and 27]

8. provide police with power to question adult persons as to the whereabouts of a motor vehicle to facilitate the impoundment, immobilisation or forfeiture of that vehicle. [6 and 8]

9. facilitate the sale or disposal of forfeited motor vehicles and uncollected impounded motor vehicles by extinguishing third party interests. [18, 20, 28-35, 37 and 38]

Note: From the Statement of Compatibility - ... although security interests will be extinguished, the persons holding those interests will, where the vehicle is fit for sale, still be eligible to have their interests paid out when the proceeds of sale are distributed according to the current priority order set out in section 84ZS of the Road Safety Act 1986.

10. ensure that applications for 'exceptional hardship' to avoid or vary orders for the immobilisation, impoundment or forfeiture of a motor vehicle are granted only in appropriate cases. The court must not decline to make a disposal order where the person is under a disqualification or suspension. The Bill clarifies the circumstances in which arguments relating to travelling for employment purposes can satisfy the 'exceptional hardship' test. [13, 23, 24, 25, 36]

The Bill also amends the Melbourne City Link Act 1995 to provide the Minister administering that Act with power to revoke, in whole or in part, a road declaration made under that Act so that the relevant land may be used for other non-road purposes. The Minister must cause a notice of revocation to be published in the Government Gazette. [41 and 42]


Part 6A of the Act deals with impoundment, immobilisation and forfeiture of motor vehicles. Division 1 of Part 6A provides for definitions to be used in the Part and Division 2 deals with powers exercised by Victoria police whilst Division 3 sets out provisions that apply upon a court order. The Bill amends the definition of 'designated period' in section 84C for the purposes of sections 84G and 84H (Seizure and surrender of vehicle by Victoria Police under Division 2) so that it refers to 7 days rather than 48 hours. The amendments

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will therefore allow a vehicle to be impounded or immobilised by a member of the police force without court order for up to 7 days. [4] (Refer to Charter report below)

Charter report

Presumption of innocence - Immediate negative consequences for people believed by the police to have committed dangerous driving behaviour

Summary: Clause 4(1)(a)'s purpose is to impose 'immediate negative consequences' on people who police believe have committed dangerous driving behaviour. The Committee considers that it may limit the Charter right of criminal defendants to be presumed innocent until proved guilty according to law

The Committee notes that clause 4(1}(a) extends the 'designated period' for the purposes of existing s.84F(1)(b) from 48 hours to seven days. Section 84F(1)(b) permits a police officer who 'believes on reasonable grounds that a motor vehicle is being, or has been used in the commission of a relevant offence' to 'impound or immobilise the motor vehicle for the designated period'.

The Second Reading speech remarks:

Increasing the initial impoundment or immobilisation sanction to seven days is expected to further deter dangerous driving behaviour as the immediate negative consequences of that behaviour mount up. In addition, offenders are less likely to [sic] able to conceal the sanction (and need to make alternative transport arrangements) from their families and friends who have the potential to intervene and so reduce further offending.

Clause 4(1)(a)'s purpose is therefore, not merely to reduce the risk of a continuation of a particular incident of dangerous driving, but rather to impose 'immediate negative consequences' on people who police believe have committed dangerous driving behaviour. The Committee considers that clause 4(1)(a) may limit the Charter right of criminal defendants to be presumed innocent until proved guilty according to law.4


4

The imposition of vehicle impoundment or immobilisation for 7 days upon detection ... by police allows for the immediate removal of an unsafe driver from the road and also provides significant deterrent to that person and other drivers from engaging in unsafe driving behaviour.

The limitation of the right to be presumed innocent is constrained by a number of safeguards. Firstly, section 84M of the act provides that any decision to impose a 7 day impoundment or immobilisation must be reviewed by a senior police officer within 48 hours of the impoundment or immobilisation being imposed.

Secondly, appeals rights exist under section 840 of the act where a person substantially affected by the 7 day impoundment or immobi/isation sanction can seek the release of the vehicle on exceptional hardship grounds ....

Thirdly, section 84R of the act provides that in the event that a person is found not gUilty ... or where charges are not proceeded with, the Crown is liable to refund any designated costs ... and the motor vehicle ... must be immediately released ...

It would be possible to factor in some delay period before the impoundment or immobilisation could take effect... However this would reduce the effectiveness of the legislation in deterring unsafe

Charter s. 25(1).

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driving practices. It is important that persons that disregard public safety by committing serious traffic offences are removed from the roads as quickly as possible.

The Committee observes that clause 4(1)(a) will impose irreversible negative consequences, not only on actual dangerous drivers, but also people who police mistakenly believe to be dangerous drivers but who are subsequently cleared by the police or the court.

In a case on the Charter right to be presumed innocent, the Court of Appeal has remarked:5

There may be circumstances where the jiJstification for interfering with a human right - and for doing so by the particular means chosen - is self-evident, but they are likely to be exceptional. The government party seeking to make good a justification case under s 7(2) will ordinarily be expected to demonstrate, by evidence, how the public interest is served by the rights-infringing provision.

That case involved a provision requiring a defendant to prove their innocence in court. The Committee considers that the need for evidence may be stronger in the case of clause 4(1)(a), which provides for defendants to be punished before their case ever reaches a court.

The Committee therefore considers that clause 4(1.)(a) may be incompatible with the Charter's right to be presumed innocent.

The Committee refers to Parliament for its consideration the question of whether or not clause 4(1.)(a), by extending the period where a motor vehicle may be impounded or immobilised by a police officer in order to provide immediate negative consequences for suspected offendersl is a reasonable limit on the Charter right of criminal defendants to be presumed innocent until proved guilty according to law.


R v MomciJovic [2010] VSCA 50, [146].

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Marine Safety Bill 2010

The Bill was introduced into the Legislative Assembly on 10 August 2010 by the Hon. Tim Pallas MLA. The Committee considered the Bill on 30 August 2010 and made the following comments in Alert Digest No. 12 of 2010 tabled in the Parliament on 31 August 2010.

Committee's Comments

[2] - Delayed commencement

The Committee notes that no explanation is given by the Minister concerning the desirability for providing a delayed commencement of more than 1 year from introduction. The Committee draws attention to Practice Note No.1 (2005) concerning delayed commencement provisions.

The Committee will seek further advice from the Minister.

Minister's response

I refer to your letter of 31 August 2010, regarding this matter. Your letter requests my response to the issues raised in the Committee's report as tabled in the Legislative Assembly on 31 August 2010.

The further information requested by the Committee is attached to this letter. This information has also been sent to the Committee's Senior Legal Advisor, Andrew Homer.

Please do not hesitate to contact Ian Shepherd, Deputy Executive Director, DOT Legal, on 03 9655 1701 if you have any questions.

TIM PALLAS Minister for Roads and Ports

Received 13 September 2010

Marine Safety Bill 2010 Ministerial Response to Scrutiny of Acts and Regulations Committee

Thank you for your letter dated 31 August 2010 regarding the Committee's consideration of the Marine Safety Bill 2010 (the Bill).


The Committee has sought my advice on why the Bill makes provision for a delayed commencement of more than one year from introduction.

The target commencement date for the Bill is 1 July 2011, which may be achieved under clause 2 by proclamation to this effect. This would enable the reforms to be in place prior to the 2011/2012 boating season, which is the Government's intent. However, achieving this target date will be dependent on attaining passage of the Bill in 2010 and reaching satisfactory resolutions on the details of regulations with marine safety stakeholders.

New Marine Safety Regulations will be needed to support the reforms incorporated in the Marine Safety Bill. In particular, the details of licensing reforms and the proposed system of periodic safety checks for high risk vessels needs to be resolved. This will involve extensive consultation and

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sufficient time needs to be provided to ensure quality outcomes. In recognition of the need to provide sufficient time, I have already committed to doubling the consultation period that normally would apply following the release of the regulatory impact statement.

Concurrent to the development of the regulations, changes to information technology systems need to be made and transport safety officers (previously 'authorised officers') needs to be retrained to ensure familiarity with the new Act and related changes. In addition, a range of guidelines and other subordinate instruments need to be developed and gazetted.

The complex and sigmficant nature of these implementation tasks means that there is potential for unintended delay. The default commencement date of 1 July 2012 makes it clear that should delay occur, it is the intention of Parliament for the new Act to commence no later than that date, so that the marine safety reforms incorporated in the Bill are in place and communicated to marine safety stakeholders in advance of the 2012/13 boating season.

Charter Report

The Committee has referred to Parliament for its consideration the question of whether or not clauses 175, 176, 179(l)(a} and 181(c} are compatible with the right to be presumed innocent in section 25(1} of the Charter of Human Rights and Responsibilities Act 2006 (the Charter).

The Committee has also sought further information regarding the compatibility of clause 180(2} of the Bill with section 25(1} of the Charter. I note that the Statement of Compatibility contained a typographical error, and that the reference to clause 181 in the Statement of Compatibility was intended to refer to section 180(2}.

I provide further information in relation to each clause below.

Clause 175

Clause 175 of the Bill provides definitions of relevant terms in relation to owner onus offences.

Clause 176

The effect of clause 176 is that a person who, at the time of the offence is the responsible person in relation to the vessel, is guilty of the offence as if that person were the master of the vessel at that time. The owner of the vessel is presumed to be the responsible person in relation to the vessel unless they use an effective statement to avoid liability.

To escape liability, the owner of the vessel can provide a 'known user', 'il/egal user', 'sold vessel' or 'unknown user' statement to escape liability for on offence (clouse 178). Nominating another person as the master is a serious matter. It is an offence to provide false or misleading information in a statement (clause 182). If the statement is not accepted, the owner will continue to be held to be liable.

I do not accept the view that this constitutes the "say-so" of the owner in the sense of it being an unsupported statement or arbitrary assertion. This appears to be what is asserted in the Committee's report.

Clause 179(1)

A person who has been nominated in a known user or sold vessel statement can make a nomination rejection statement providing reasons why liability should revert to the person who nominated the nominee. If nominated in a known user statement, the nominee could state that they had not had possession or control of the vessel before the offence nor was acting as the master of the vessel at the time of the offence. If nominated in a sold vessel statement, the nominee could state that the vessel had not been sold or disposed of to the person, and that no interest in it had otherwise vested in the nominee.

As was noted in the Statement of Compatibility, in most cases the statement will be accepted and no further action will be taken against the maker of the statement. An enforcement official, on


receipt of a nomination rejection statement, is required to have regard to the matters stated in the nomination rejection statement and determine whether the nomination was incorrect (for example, if the owner mistakenly stated that another person was using the vessel at the time). If the nomination statement is found to be incorrect, the person who would, but for the statement, have continued to be the responsible person in relation to the vessel becomes again the responsible person.

If a nominee does not provide a nomination rejection statement or such a statement is not accepted, the person may elect to have the matter dealt with in court pursuant to section 16 of the Infringements Act 2006. Alternatively, proceedings may be initiated against the person by way of charge and summons.

Clause 180(2)

Clause 180(2) provides that in the absence of evidence to the contrary, a known user or sold vessel statement is proof of the matters stated in it. Where this provision relates to proof of matters in criminal proceedings, the provisions have the effect of placing an evidential burden on the accused to rebut the presumption of proof of the matter. Where the accused points to relevant evidence, the prosecution is required to prove the matter in issue.

The effect of this section is that where proceedings are brought against a nominated person, a prima facie evidentiary provision applies. This provision, therefore, imposes an evidential onus on an accused to adduce or point to evidence that goes to the matter.

In my view, this provision does not transfer the burden of proof, because once the accused has adduced or pointed to some evidence, the burden is on the prosecution to prove beyond reasonable doubt the matters stated in the nominotion statement.

I therefore consider that this provision does not engage the right to be presumed innocent in section 25(1) of the Charter. However, I note that in R v Momcilovic [2010J VSCA 50, the Court of Appeal, suggested that an evidential onus may, in some circumstances, limit the right to be presumed innocent in the Charter. If such circumstances were to arise by virtue of the owner onus provisions, I would still consider that the limitation would be justifiable under section 7(2). It would be unreasonable to require the prosecution to prove these matters in every case in the absence of any evidence to the contrary and it would be relatively easy for an accused to point to evidence that would put the prosecution to proof.

Clause 181(,)

Clause 181 provides a number of defences to owner onus offences. If the proceeding is against a nominee, the nominee may escape liability if he or she proves that he or she had had made a nomination rejection statement and that an enforcement official ought to have been satisfied, having regard to the matters stated in the nomination rejection statement, that the nomination was incorrect.

Firstly, the accused must provide that he or she had made a nomination rejection statement. This would not be difficult to do as the accused would have obtained a copy of the statement provided from the prosecution as part of the brief of evidence.

Secondly, the accused would need to prove that on enforcement official ought to have been satisfied, having regard to the matters stated in the nomination rejection statement, that the nomination was incorrect. In practice, the accused would put into evidence the matters that were put to the enforcement official. For example, evidence that he or she had never signed a document transferring ownership of the vessel, or evidence that he or she were elsewhere at the time the offence was committed and not responsible for the vessel.

In most cases, discharging the onus will simply require production of the statement. The person does not have to prove on the balance of probabilities he or she was not responsible for committing the offence. As I noted in the Statement of Compatibility, an evidential onus would not be effective,

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given the particular difficulties associated with identifying the master of a vessel, where that vessel is involved in the commission of an offence.

I also note that the owner onus provisions are used to determine the identity of the accused in a proceeding, not the guilt or innocence of the accused. The prosecution still has the burden of establishing other elements of the offence.

The matters stated in the nomination rejection statement are only one of the elements required to establish the guilt of an accused. In any case, clause 180(2) applies to proceedings brought under clause 181 (c). Under clause 180(2), the accused may still test the veracity af the infarmation contained in a nomination statement. The provisions do not operate to prevent an accused calling evidence to examine or cross-examine witnesses, including the registered owner, as suggested in the Committee's report.

Conclusion

In my opinion the provisions under consideration do not engage the right to be presumed innocent in section 25(1) of the Charter because it continues to be the case that:

• all elements of an al/eged offence can be fully tested in court proceedings; and

• the onus is still on the prosecution to prove the offence beyond reasonable doubt.

However, should circumstances arise where the provisions under consideration would act to limit the right to be presumed innocent, I consider the nature of these limitations to be reasonable.

I note that the 'owner onus' provisions under consideration largely mirror the provisions in Part 6AA of the Road Safety Act 1986. The conclusion I have reached here applies equally to those provisions.

Thank you for giving me the opportunity to respond to the Committee's concerns. I trust that this further information is of assistance to the Committee.

Tim Pallas MP Minister for Roads and Ports

The Committee thanks the Minister Jor this response.

Traditional Owner Settlement Bill 2010

The Bill was introduced into the legislative Assembly on 27 July 2010 by the Hon. John Brumby MLA. The Committee considered the Bill on 9 August 2010 and made the following comments in Alert Digest No. 11 of 2010 tabled in the Parliament on 10 August 2010.


Charter report

382

Cultural rights - Recognition oj rights oj traditional owner groups - Limits on recognition oj nonnative-title claimants and holders - Resolution oj questions about membership oj traditional owner groups

Summary: Clauses 4 and 9 provide for the recognition of rights of traditional owner groups and therefore engage Aboriginal persons' Charter right not to be denied their distinctive relationship to the land. The Committee is concerned that clause 3's definition of 'traditional owner group' appears to give precedence to native title claimants and holders and to lack an independent mechanism to resolve questions about the membership of traditional owner groups. It will write to the Premier seeking further information.


The Committee notes that clauses 4 and 9 provide for the recognition of rights of traditional owner groups in an area via an agreement reached between the State and the traditional owner group entity for that area. Clause 3 defines a 'traditional owner group entity' to be corporation appointed by 'a traditional owner group for the area of public land to represent them in relation to that area'. The definition of 'traditional owner group, in relation to an area of public land' is as follows:

(a) if there is a group of persons who are the persons in the native title group in relation to the area in accordance with section 24CO of the Native Title Act, that group of persons ...

(b) if there are native title holders (within the meaning of the Native Title Act) in relation to the area, the native title holders; or

(c) in any other case, a group of persons who are recognised by the Attorney-General... as the troditional owners of the land, based on Aboriginal traditional and cultural associations with the land.

The Committee considers that the Bill engages Charter s. 19(2}(d}, which provides that 'Aboriginal persons ... must not be denied the right, with other members of their community ... to maintain their distinctive spiritual, material and economic relationship with the land and waters and other resources with which they have a connection under traditional laws and customs'.

The Second Reading Speech remarks:

This bill provides for the recognition of distinctive traditional owner groups in Victoria, identified by their group name, and to enter into agreements that give effect to the rights they hold in land and natural resources in concrete and meaningful ways ...

Until now, traditional owner groups have had no concrete avenue for the recognition of their rights in land, other than through the commonwealth's native title system - a complex legal system that was never intended to address land justice in the more settled regions of Australia ...

[T]he events and policies of nearly two centuries cast traditional owners from country, broke their means of subsistence and undermined their systems of law and relationships to country and to each other. This, of course, makes the task of meeting contemporary connection tests almost insurmountable ...

The bill's approach is to put the question of native title to one side in exchange for recognition and a ronge of benefits related to that recognition.

While the Committee appreciates that the bill promotes Charter s. 19(2}(d}, it is concerned that clause 3's definition of 'traditional owner group' appears to give precedence to native title claimants and holders, i.e. those who claim or have proved that they have had a continuous tie to the relevant area of land, over other potential holders of rights under Charter s. 19(2}(d}. As para (c) of the definition is limited to 'any other case', it appears that people whose tie to their land was interrupted or who have developed ties to land to which they were displaced can only be recognised as traditional owners if there are no people who claim or have proved an uninterrupted tie to that area of land. So, clause 3's definition may deny some people's rights under Charter s. 19(2)(d).

The Committee also observes that, aside from the provisions of the federal Native Title Act, the only mechanisms provided in the Bill for resolving disputes about membership of a traditional owner group, either before or after an agreement is reached, are para (c)'s mechanism for groups of persons to be 'recognised' by the Attorney-General as traditional owner groups and any internal regulations of the entity that group appoints. While the Committee appreciates that the Bill's purpose is to avoid litigation, the Committee is concerned that the apparent absence of a mechanism independent of the parties to the agreement to resolve questions about the membership of traditional owner groups may also result in the denial of some people's rights under Charter s. 19(2}(d).

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The Committee will write to the Premier seeking further in/ormation as to the operation 0/ the Bill in areas where there are both native title claimants/holders and other traditional owners, and as to the availability 0/ independent mechanisms to resolve questions about the membership 0/ traditional owner groups. Pending the Premier's response, the Committee draws attention to clause 3's definition 0/ 'traditional owner group'.

Minister's response

384

Thank you for your letter to the Premier regarding the Traditional Owner Settlement Bill 2010. The Premier has asked me to respond on his behalf.

I understand the Committee raises two related issues:

• The definition of 'traditional owner group' in clause 3 of the Bill appears to give precedence to native title claimants and holders who have proved that they have continuous ties to the relevant area of land, over other potential holders of rights under s19(2) of the Charter.

• The apparent absence of a mechanism independent of the parties to resolve questions about the membership of troditional owner groups may also result in the denial of some people's rights under the Charter s19(2){d).

I will address each of these separotely in this letter.

1. Definition of traditional owner groups

The Committee refers to the definition of traditional owners at clause 3 of the Bill. Clause 3 defines the traditional owner group as follows:

(a) if there is a group of persons who are the persons in the native title group in relation to the area in accordance with section 24CD of the Native Title Act, that group of persons, other than a group of persons that is a representative body under section 24CD(3)(b) of that Act; or

(b) if there are native title holders (within the meaning of the Native Title Act) in relation to the area, the native title holders; or

(c) in any other case, a group of persons who are recognised by the Attorney-Generol, by notice published in the Government Gozette as the traditional owners of the land, based on Aboriginal troditional and cultural associations with the land.

I note the Committee's concern that the words "in any other case" in part (c) of the definition may preference parographs (a) and (b), and might exclude people whose tie to their land was interrupted, or who have developed ties to land to which they were displaced.

Firstly, I wish to explain the importance of paragraph (b) of the definition. This paragraph ensures that persons who hold native title to an area are recognised as the traditional owner group for that area for the purposes of the Bill. Native title holders have proven to the high evidentiary standard required by the Native Title Act 1993 that they have continuous connection to land and a relatively unchanged body of law and custom which links their group to that land. Such proof would clearly meet the definition of "connection under traditional laws and customs" in s19(2)(d) of the Charter. As such the Bill ensures that there is no additional burden on persons who have met the native title standards 0/ evidence.

Secondly, persons who can demonstrate an association with the land relevant to s19(2)(d) of the Charter but who have not been determined to be native title holders - for example because their tie to their land was interrupted - can be recognised through the definition at paragraph (a) as well as paragraph (c).

Paragraph (a) allows any persons who are native title parties to a registered Indigenous Land Use Agreement (lLUA) to be recognised as traditional owners. Native title parties include persons who claim to hold native title. In accordance with section 24CD of the Native Title Act 1993, even where


native title holders exist, the native title party may include both the native title holders and any other person who claims to hold native title to any undetermined part of the agreement area. Registration of the ILVA requires that all reasonable efforts are made to identify all persons who hold or may hold native title and that all such persons have authorised the making of the ILVA. As it is expected that in almost every case there would be undetermined parts of an agreement area, the native title group under paragraph (a) can be broader than a group that has proven continuous connection under native title.

Alternatively, it is open to the Attorney-General to make a gazettal notice to recognise a troditional owner group as the traditional owners of the land, based on Aboriginal traditional and cultural associations with the land (paragraph (c) of the definition). Such a definition allows greater flexibility than is currently available under native title and intends to allow for all persons who may have "connection under traditional laws and customs" under s19(2)(d) of the Charter to be able to be included in a traditional owner group. If any persons who have developed ties to land to which they were displaced can demonstrate that these ties constitute "Aboriginal traditional and cultural associations with the land", such people could be recognised as traditional owners.

2. Lack of independent mechanism in the Bill to resolve questions about the membership of troditional owner groups

I note that the Committee is concerned that the apparent absence of a mechanism independent of the parties to the agreement to resolve questions about the membership of traditional owner groups, and that this may also result in denial of some people's rights under s19(2)(d) of the Charter.

As the Committee notes, such a mechanism would contradict the intent of the Bill to avoid litigation on matters such as group membership, connection and identity.

Any decision made in relation to the recognition of a Traditional Owner Group is based on a rigorous, fully researched and evidenced assessment of their connection to country. The AttorneyGeneral, on behalf of the Government, will require those seeking traditional owner recognition to show that they are descended from the Aboriginal people present at the time of European settlement, by way of genealogical links, and to demonstrate their association to their country. These are standards that traditional owners themselves support for their own cultural integrity. The role of the Attorney-General in taking such a decision is consistent the responsibility currently taken by the Attorney-General to consent to native title determination on behalf of the Government.

For the reasons stated above, the definition of traditional owners in the Bill is such that al/ persons who hold the rights under s19(2)(d) are able to be recognised as traditional owners.

Furthermore, and most relevant to the issues raised, in carrying out his or her responsibilities under the Bill the Attorney-General (or Minister), as a public authority under s4 of the Charter of Human Rights and Responsibilities, would be bound to act compatibly with the Charter. For this reason there is no need to create an independent mechanism solely for the purposes of protecting the rights of Aboriginal people under s19(2)(d).

Whilst the Bill does not include additional review mechanisms for decisions relating to the membership of traditional owner groups, a number of non-statutory mechanisms for resolving disputes about membership of traditional owner groups, including mechanisms led by traditional owners themselves, are in development to complement the Bill.

I trust that this adequately addresses the matters raised by the Committee.


28 August 2010

The Committee thanks the Attorney-General for this response

385


Transport Accident and Accident Compensation Legislation Amendment Bill 2010

The Bill was introduced into the legislative Assembly on 27 July 2010 by the Hon. Tim Holding MLA. The Committee considered the Bill on 9 August 2010 and made the following comments in Alert Digest No. 11 of 2010 tabled in the Parliament on 10 August 2010.


Clauses 2(2) to 2(6)

Rights or freedoms - Retrospective provisions -Inadequate explanatory material

The Committee notes that a number of provisions in the Bill have retrospective commencement (clauses 2(2) to 2(6}). In each case neither the explanatory memorandum nor the Second Reading Speech provide any reasons as to the date chosen or the effect the retrospectivity may have on existing rights. The Cammittee once again draws attention to Practice Note No. 1 of 2005 concerning the need to provide adequate reasons for the inclusion of retrospective provisions in Bills and the rationale for choosing a particular date.

The Committee will seek the relevant advice from the Minister.

Minister's response

386

Thank you for your letter of8 August 2010, in which you alerted me to the Scrutiny of Acts and

Regulations Committee (SARC),s report on the Transport Accident and Accident Compensation Legislation Amendment Bill 2010 (the Bill).

I am writing to advise you that SARC's concerns hove been considered and as requested, I have provided further information about the need for retrospective commencement of the amendments affected by clauses 2(2) to 2(6).

Most of these provisions correct anomalies and technical errors in amendments that were made by the Accident Compensation Amendment Act 2010 (the Amendment Act) which received Royal Assent on 23 March 2010. In general, the retrospective commencement of these provisions is to align with the commencement of the substantive changes made by the Amendment Act. This is to ensure that the original intention of the earlier amendments is achieved.

I trust the attached information will adequately address SARC's concerns and I thank you for bringing these matters to my attention. If you require further clarification, please do not hesitate to contact Linda Timothy, at WorkSafe, on (03) 96411373.

TIM HOLDING MP Minister for Finance, WorkCover and the Transport Accident Commission

3 September 2010

Retrospective application of certain provisions in the Transport Accident and Accident Compensation Legis/ation Amendment Bil/20l0

SARC sought further advice concerning the significance of the dates chosen for retrospective commencement.


Clause 2(2)

Clause 160 inserts a reference to 'section 138(6}, into section 349 which was inserted into the Accident Compensation Act 1985 (the ACA) by section 191 of the Accident Compensation Amendment Act 2010 (the Amendment Act). 1

Section 349 is the transitional provision for amendments to section 138 of the ACA made by section 122 of the Amendment Act. These amendments introduced new sub sections (6), (7), (8) and (9) into section 138 to giv~ WorkSafe the discretion to recover, on behalf of an employer, any indemnity that the employer would be entitled to claim against a third party.

Section 349 stipulated that this discretion should apply in respect of any right of indemnity that WorkSafe, a self-insurer or an employer has regardless of when the right came into existence. However, due to a drafting error in section 122 of the Amendment Act, the reference to sub section 138(6) was omitted. Clause 160 inserts the reference to ensure that the transitional provision will operate as intended.

Significance of retrospective commencement date and impact

The commencement date for these provisions is 17 June 2009, which aligns the insertion of a reference to 'section 138(6}, with the commencement of that section. Without a retrospective commencement an anomaly would be created.

There is no detrimental impact on any person as a result of the retrospective application of this provision.

Clause 2(3)

Clause 93 amends section 98C of the ACA to give full effect to the intent of earlier amendments to the provision made by section 54 of the Amendment Act in two respects, summarised below.

The effect of the earlier amendments to section 98C was to align (increase) the maximum amount payable under section 98C to workers with a whole person impairment (WPI) of more than 80% with the maximum damages payable at common law.

Clause 93 amends section 98C so that claims by workers with a WPI of 71% or more are calculated as at the date on which compensation is determined, rather than the date of the injury. This is to align the approach taken to assessing damages under the ACA with that at common law and ensure alignment of the maximum damages is available. It is more generous to workers as the calculation of compensation will be based on higher indexed statutory maximum amounts.

Clause 93 also amends section 98C to clarify the correct monetary amount is applied in the relevant formulae in section 98C depending on the year in which the worker sustained the injury resulting in the impairment, and to ensure that workers whose injuries occurred on or after 3 December 2003 and before 1 July 2010 obtain the intended compensation payments.


The commencement date for these provisions is 10 December 2009. Under section 2 of the Amendment Act, the section 54 amendments to section 98C commenced onl0 December 2009 (the date of the second reading speech of the Bill) to allow a greater number of injured workers to benefit from the changes, and to minimise the impact on claims lodgement patterns.

The actuarial estimation of the cost of the reforms incorporated the commencement date specified in this provision. Thus, the cost can be funded without increasing average premium rates.

The Amendment Act received Royal Assent on 23 March 2010.

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Clause 2(4)

Clause 51 amends section 820 of the ACA to clarify that workers disentitled to compensation under section 82C (by reason of a drink or drug driving conviction) have all forms of compensation reinstated if the conviction is later overturned.

Sections 82A to 820 were inserted into the ACA by section 15 of the Amendment Act to introduce a regime of compensation penalties where the worker's injury was contributed to by drink or drug driving. Under section 82C, where a worker has been convicted of a serious drink or drug driving offence, and that conduct contributed to the injury, the worker will be disentitled to compensation under the ACA. However, the intention of section 820 is that if the conviction is later overturned, the worker should be paid his or her compensation entitlement.

The amendments to be made by Clause 51 will clarify the drafting of section 820 so that it operates in this way.

Significance 0/ retrospective commencement date and impact

Clause 51 commences on 5 April 2010, to align with the commencement of sections 82A and 820. This will preserve workers' rights to compensation.

Clause 56(2) amends section 928 of the ACA. Section 928 was amended by the Amendment Act to increase the age that a dependant child continued to be eligible to receive a weekly pension. However these amendments inadvertently removed the mechanism for weekly pensions payable to the dependant to be indexed where the claim was made before 5 April 2010. Notwithstanding this error, WorkSafe has continued to index such pensions as at 1 July 2010.


Clause 56(2) restores the previous indexation pravision and preserves the annual indexation of weekly pensions for claims made before 5 April 2010.

Clause 66 amends section 103(4C) of the ACA.

The Amendment Act inserted new section 103(4C) into the ACA. The provision gives the Minister power to issue guidelines specifying the manner and form in which a claim may be given, served or lodged. The provision should also have given the Minister power to specify the manner in which a claim for compensation may be forwarded to the Authority. Clause 66 corrects this omission.


The commencement date (5 April 2010) aligns with the commencement date of section 103(4C) and causes no disadvantage.

Clause 127 amends section 313 of the ACA, which is a transitional provision for section 93CO (substituted by section 34 of the Amendment Act).

Section 93CO allows workers to apply for the continuation of weekly payments after the expiry of the second entitlement period. The new section 93CO commenced on 5 April 2010 (section 2 of the Amendment Act) and applied in respect of an injury occurring on or after 5 April 2010 (section 313 of the ACA). However, the amendments inadvertently removed the application of the previous section 93CO, which applied in respect of injuries before 5 April 2010.

Section 127 therefore amends section 313 to ensure that the previous section 93CO applies in respect of injuries before 5 April 2010, as intended.


The commencement date (5 April 2010) aligns with the commencement of the new section 93CO and preserves the right of workers injured before 5 April 2010 to apply for the continuation of weekly payments after the expiry of the second entitlement period.


Clause 154 inserts references to sub sections 103(4} to {4H} in section 306 of the ACA which were omitted in error.

Section 306 was inserted by section 191 of the Amendment Act. This section is the transitional provision for the amendments made to section 103 of the ACA by section 19 of the Amendment Act. These amendments streamlined the process for making a claim for weekly payments under the ACA however references to sub sections 103{4} to (4H) were inadvertently omitted from section 306 creating an unintended anomaly. Clause 154 corrects this omission.


The commencement date (5 April 2010) aligns with the commencement date of the substantive changes to section 103 and causes no disadvantage.

Clause 155 amends section 307 of the ACA (inserted by section 191 of the Amendment Act).

Section 307 is the transitional provision for section 20 of the Amendment Act which made a number of amendments to the provisions around medical certificates supporting a claim for weekly payments. Sub sections 20(1) and 20(2) made consequential amendments to section 105 of the ACA arising from other amendments to section 105 that were made by the Amendment Act; sub section 20(3) introduced a 10-day time period in which employers are required to forward a medical certificate to WorkSafe. Section 307 stipulated that these changes applied in respect of claims '1irst received" on or after 5 April 2010.

Clause 155 amends section 307 to clarify that this amendment applies to claims "given, served or lodged" from 5 April 2010. This reflects the original intention of the amendments.

Significance Of retrospective commencement date and impact

The commencement date (5 April 2010) aligns with the commencement of the substantive changes to the ACA. This will not adversely affect any person.

Clause 156 makes a technical correction to section 311 of the ACA.

Section 311 is the tronsitional provision (inserted by section 191 of the Amendment Act) for section 55AA of the ACA (inserted by section 29 of the Amendment Act) which commenced on 5 April 2010. Section 55AA sets out the process by which a Conciliation Officer may refer a medical question in a worker's compensation dispute to a Medical Panel for an answer. The intention of section 311 was to make new section 55AA apply to medical questions arising in a dispute related to a section 93CD application (i.e. application for continuation of weekly payments in the second entitlement period).

Clause 156 amends section 55AA to give effect to this intention.


The commencement date (5 April 2010) aligns with the commencement date of section 55AA. This will not adversely affect any person.

Clause 157 makes a drafting correction to section 322 of the ACA, inserted by section 191 of the Amendment Act.

Section 322 is the tronsitional provision for amendments made to section 43 of the ACA which removed the limits on the jurisdiction of the Magistrates' Court to hear and determine workers compensation disputes, to give it the equivalent jurisdiction in the County Court. Section 322 had the effect of making the jurisdictional changes apply to "proceedings commenced under this ActN

which is inconsistent with language of other transitional provisions.

Clause 157 removes the italicised words to ensure consistency with the other transitional provisions, and to thus avoid the potential for misinterpretation which might arise from inconsistent references.

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The commencement date (5 April 2010) aligns with the commencement date of the substantive amendment to the ACA to reflect the original intention.

Clause 158 makes a technical correction to section 323 of the ACA which was inserted by section 191 of the Amendment Act.

Section 323 is the transitional provision for amendments made to section 45 of the ACA. Section 45 of the ACA (inserted by section 76 of the Amendment Act) was amended to improve the efficiency and quolity of referrols to the Medical Panel from the Courts. The transitional referred to the amendment applying only to proceedings that commenced on or after the commencement date. In this context the word "only" was redundant and no effect on the transitional.

Clause 15B removed this redundant word.


The commencement date (5 April 2010) aligns with the commencement date of the substantive amendment to the ACA to reflect the original intention.

Clause 162 makes numerous typographical and punctuation corrections to various provisions in the Amendment Act.


The commencement date (5 April 2010) aligns with the commencement of these various provisions and will not adversely affect the rights of any person.

Clause2(5}

Clauses 110, 111 and 112 correct anomalies to amendments made by the Amendment Act to the return to work provisions (new Part VIIB- Return to Work inserted by section 129 of the Amendment Act).

Clause 110 improves the usability of section 195 by moving the definition of ((knows or ought reasonably to have known" (which relates only to section 195) for ease of reference. This clause moves the definition of ((knows or ought reasonably to have known" from existing section 192(3) to within section 195.

Clause 111 corrects an anomaly by moving the employer obligation to natify WorkSafe of a worker's return to work from existing section 123 into Division 2 of Part 7B to consolidate it with the rest of the employer return to work obligation. This consolidation was overlooked in the Amendment Act and is required to fully implement the policy intent of the consolidation of return to work provisions under Part VIIB.

Clause 112 amends section 20B of the ACA to correct anomalies, clarify the application of the obligation by WorkSafe and a self-insurer to provide information under this section, and makes a consequential amendment. It corrects the wording of the title to section 20B. It clarifies that the section 20B procedural obligation on WorkSafe or a self-insurer to provide information to a worker does not affect the obligations of an employer, WorkSafe or a self-insurer under this Part. This amendment does not affect the substantive return to work rights and obligations, under Part VIIB, of an employer, WorkSafe or a self-insurer. It makes a consequential amendment to section 123A to clarify that the requirement under this section does not apply to section 20B, given no substantive decision has been made by the employer, WorkSafe or self-insurer.


The commencement date (1 July 2010) aligns the commencement of the new Part VIIB- Return to Work inserted by the Amendment Act and corrects anomalies.


Clause 139 clarifies the new definition of 'WorkCover insurance policy' in section 3(1) of the Accident Compensation (WorkCover Insurance) Act 1993 (ACWI Act) to ensure that the definition includes, as intended, policies that are deemed to be in force by operation of new section 7(3A) of the ACWI Act which was inserted by section 101 of the Amendment Act.

Section 7(3A) of the ACWI Act (amended by section 101 of the Amendment Act) was introduced to deem an employer to have a policy in place, if that employer failed to arrange its own policy. However the Amendment Act failed to make the necessary consequential amendment to the definition contained within subsection 3 of ACWI Act to capture policies "deemed to be in place". This gives rise to a potential for disputes. Section 139 corrects this omission.


The commencement date (1 July 2010) aligns the correction with the commencement of section 7(3A) of the ACWI Act to ensure the definition is technically correct and reflects the manner in which it has been implemented. It will not adversely affect the rights of any person.

Clauses 140 and 142 amend sections 7(3B), 7(3C) and 17 of the ACWI Act respectively to clarify that where an employer is deemed to have a deemed policy of insurance in a particular policy period, pursuant to new section 7(3A), the relevant premium payable by the employer for that deemed policy must be calculated in accordance with the relevant premiums order for that period. This confirms the intention, and reflects the manner in which the provisions have been implemented.


The commencement date (1 July 2010) aligns with the commencement of sections 7(3A) to (3D) of the ACWI Act. There is no detrimental effect on existing rights of employers or others.

Clauses 143 and 144 amend section 7(lAM) and section 9(2A) of the ACWI Act respectively to clarify that an employer will not be covered by its WorkSafe insurance policy for all elements of loss associated with a worker's action for discriminatory conduct under new sections 242AB and 242AD of the Act (inserted by section 23 of the Amendment Act).

Section 242AB and 242AD of the Act strengthened the anti-discrimination provisions within the ACA. Section 7 and 9 of ACWI was amended to ensure the employer remained liable for any loss arising from its discriminatory conduct but referred to an employer's "liability for damages" rather than liability more generally. This had the potential to create uncertainty.

Clauses 143 and 144 remove any doubt that the WorkSafe policy does not extend to liabilities under the new discrimination provisions. This confirms the intention, and reflects the manner in which the provisions have been implemented.


The commencement date (1 July 2010) aligns with the commencement date of new sections 242AB and 242AD. There is no detrimental effect on existing rights of employers or workers.

Clause 146 amends section 36H of ACWI (introduced by section 114 of the Amendment Act).

Section 36H was introduced to make WorkSafe liable to pay interest on amounts refunded following a review of premium. The intent of this amendment was that the payment of interest be limited to applications for review under the review provisions contained in new section 33 of ACWI (also introduced by section 114 of the Amendment Act). Clause 146 removes any doubt that the interest follows a review under section 33 of ACWI.


The commencement date (1 July 2010) aligns with the commencement date of new sections 33 and 36H and is a clarification for the avoidance of doubt.

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Clause 147 amends sectian 61 af the ACWI Act. Section 7(3A) of the ACWI Act was introduced to deem an employer to have a policy in place, if that employer failed to arrange its own policy. However a consequential amendment to section 61 of ACWI ensures that WorkSafe's power to recover compensation against a non compliant employer extended to such circumstances. Clause 147 makes this consequential amendment to section 61 of ACWI.


The commencement date (1 July 2010) aligns with the commencement date of new sections 7(3A) and is a consequential amendment.

Clause 151 amends section 82 of the ACWI Act which is a transitional pravision for section 16 of the ACWI Act (substituted by section 103 of the Amendment Act).

Section 16 of the ACWI Act (introduced by section 103 of the Amendment Act) was amended to pravide for a premiums order to include provisions relating to the avoidance of premium. Section 82 (introduced by section 193 of the Amendment Act) is the transitional provision which applied section 16 to any premium order made on or after the commencement date.

Clause 151 amends section 82 to clarify that section 16 applies to any premium order made on or after commencement, not just the premium order made for the 2010/2011 financial year.


The commencement date (1 July 2010) aligns with the commencement date of new section 16. Given the amendment is consistent with the operation of section 16 its retrospective application will not adversely impact any person.

Clause 152 amends section 87 of the ACWI Act which is a transitional provision for Part 2A of the ACWI Act (inserted by section 114 of the Amendment Act).

Part 2A of the ACWI Act provides for the review of premium and section 87 of the ACWI (introduced by section 193 of the Amendment Act) applies this Part to notices of premium serveci in respect of the premium year commencing in 2010.

Clause 152 clarifies that Part 2A of the ACWI Act applies to any notice of premium issued on or after commencement, not just the notices issued in the 2010 premium year as intended.


The commencement date (1 July 2010) aligns with the commencement date of new Part 2A. The retrospective application will not adversely impact any person.

Clause 153 makes a minor typographical correction to sectian 80(4)(a} of the ACWI Act which is a transitional provision for Sections 7(3A} to (3D) of the ACWI Act (inserted by section 101 of the Amendment Act).

Sections 7(3A} to (3D) deem an employer to hold a relevant WorkSafe policy in circumstances where they have not complied with their premium obligations. Section 80 (introduced by section 193 of the Amendment Act) applies the new deeming provisions to employers who fail to keep a policy of insurance in respect of any of the five policy periods before the commencement date (1 July 2010) and in relation to which the Authority had not commenced proceedings.

Clause 153 adds the wards "of the" to section 80(4)(a) to correct a grammatical error.


The commencement date (1 July 2010) aligns with the commencement date of new section 7 and corrects a grammatical errar.


Clause2(6}

Clouse 67 amends section 134AB of the ACA to clarify that a worker must not have a concurrent claim for compensation under section 98C of the ACA and a serious injury application under section 134AB(4) at the same time.

Currently section 134AB(3) prohibits the making of a serious injury application under 134AB(4) unless determination of the degree of impairment of the worker have been made. This has meant workers have been required to complete the process for bringing impairment benefit claims under section 98C before lodging an application under section 134AB(4).

Clause 67 was introduced to avoid doubt that this practice ought to continue.

Significance of retrospective commencement dote and impact

The commencement date (29 July 2010, the date of second reading speech of this Bill) is to minimise the potential for fluctuations in lodgement patterns. The amendment confirms the operation of the existing provisions and current practice.

The Committee thanks the Minister lor this response.

Committee Room 13 September 2010

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Tuesday, 5 October 2010

Associations Incorporation Amendment Bill 2010 Education and Care Services National Law Bill 2010

Justice Legislation Amendment (Victims of Crime and Other Matters) Bill 2010 Justice Legislation Further Amendment Bill 2010

Occupational Licensing National Law Bill 2010 Plant Biosecurity Bill 2010

Transport Legislation Amendment (Compliance, Enforcement and Regulation) Bill 2010

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Associations Incorporation Amendment Bill 2010

The Bill was introduced into the Legislative Assembly on 25 May 2010 by the Hon. Tony Robinson MLA. The Committee considered the Bill on 7 June 2010 and made the following comments in Alert Digest No.8 of 2010 tabled in the Parliament on 8 June 2010.


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Charter report

Application of Commonwealth laws - Operation of the Chorter

Summary: Clause 41 applies modified Commonwealth provisions as laws of Victoria. The Committee will write to the Minister seeking further information as to the application of the Charter.

The Committee notes that clause 41, inserting a new Part VIlIAA, has the effect of applying modified versions of Parts 9.48, 5.2, 5.3A, 5.4, 5.48, 5.5, 5.6, 5.78, 5.8, 5.8A and 5.9 of the Corporations Act 2001 {Cth} .'as if they were ... laws or Victoria.

The explanatory material does not address whether or not the applied laws will be subject to the Charter's provisions on scrutiny, interpretation, declarations of inconsistent interpretation or obligations of public authorities.

The Committee will write to the Minister seeking further information as to the application of Charter 55. 28, 29, 32, 36 and 38 to the laws applied in Victoria by Clause 41.

Self-incrimination - Compelled examinations by the Supreme Court - Limitations on immunity -People who have not chosen to toke on duties and obligotions

Summary: Clause 41 applies a modified Commonwealth law on compelled self-incriminatory questioning to the affairs of associated incorporations, including question of people who have not chosen to participate in regulated activities in which they have assumed duties and obligations. The Committee considers that the applied scheme may be incompatible with the Charter's right against compelled self-incrimination.

The Committee notes that clause 41, inserting a new section 37AI, has the effect of applying 0

modified version of Part 5.9 of the Corporations Act 2001 {Cth} as a law of Victoria. The applied low allows the Supreme Court to summons people for compelled examination about an incorporated association's affairs and specifically requires examinees to answer self-incriminatory questions.

As the immunity in s. 597{12A} of the applied law is limited to the use of the examinee's answers, rather than information derived from those answers, its effect is to allow the Supreme Court to force examinees to lead investigators to information that may then be used to convict them of a criminal offence. The Victorian Supreme Court has held that schemes of this sort limit the Charter's rights against self-incrimination, subject to the test for reasonable limits on rights in Charter s. 7{2},


This abrogation of the privilege against self-incrimination is limited to prescribed situations. The Supreme Court can only summon a person for examination about an incorporated


association's examinable affairs and can only summon a person who is (or was) a member of the committee or provisional liquidator of the incorporated association. The people who will be subject to this power have chosen to participate in regulated activities in which they have assumed duties and obligations .

... [E]xperience of enforcing these laws has shown that granting immunities in a regulated commercial context to the type of individuals most likely to be examined and exposed to criminal and civil peno/ties leads to protracted investigations, with the result that those responsible for wrong doing and misconduct can ultimately escape liability. The limitation addresses this issue by aI/owing the regulator to effectively investigate and unravel the complex affairs of an association without jeopardising the success of any criminal or civil penalty proceedings which may be brought after all relevant information concerning a person's activities and dealings within an incorporated association have come to light.

The Committee observes that the applied provisions go significantly beyond the statements description of them as limited to people who 'have chosen to participate in regulated activities in which they have assumed duties and obligations', as follows:

«> s.5968(b)(ii) of the applied law (which is not discussed in the Statement af Compatibility) allows the compelled examination of anyone who the Court is satisfied 'may be able to give information about the examinable affairs of the corporation'. This may include, for example, family members of officers or anyone who receives a service from a community or non-profit group.

o The matters about which a person may be examined include 'any affairs of' the association, including its membership, business, trading, transactions, dealings and property.

«> The limited direct use immunity provided in the applied law only applies if the person first claims the privilege against self-incrimination before answering the question.

In light of these factors and the Supreme Court's clear ruling that a more protective scheme relating to organised crime was incompatible with the Charter, the Committee considers that clause 41, by applying both ss. 5968{b}{ii} & 597{12A} of the Corporations Act 2001. {Cth} as laws of Victoria, may be incompatible with the Charter'S right against compelled self-incrimination.

The Committee will write to the Minister expressing its concern about the Statement of Compatibility's failure to address the human rights effect of s. 5968{b}{ii} of the Corporations Act 2001 {Cth}. Pending the Minister's response, the Committee draws attention to clause 41. and ss. 5968{b}(ii} ond 597{12A} of the Corporations Act 2001 {Cth}.

Presumption of innocence -Insolvent trading offences - Absolute liability - Reverse onus

Summary: Clause 41 applies modified versions of federol offences on insolvent trading to incorporated associations. The Statement of Compatibility does not address provisions in those offences providing for absolute liability and reversing the legal onus of proof. The Committee will write to the Minister seeking further information.

The Committee notes that clause 41, inserting a new section 37AJ{2} has the effect of applying modified versions of ss. 588G{3} & 592 of the Corporations Act 2001 {Cth} as a law of Victoria, These sections make it an offence to have been a member of the committee of an incorporated association that took on a debt when there were reasonable grounds to expect that the debt would not be paid.

The Committee observes that:

o section 588G(3A) of the applied law provides that 'absolute liability applies to' the requirement that the company 'incurs a debt'. This means that the prosecution does not have to prove that

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the committee member knew that the debt was incurred and the member cannot rely on the defence 0/ honest and reasonable mistake.

• section 588H 0/ the applied law requires defendants to prove the defences 0/ reasonable reliance on others, good reosons for non-involvement or due diligence on the balance 0/ probabilities to avoid being found guilty

• section 592(2) 0/ the applied law requires defendants to prove the defences 0/ lack 0/ consent or lack 0/ reasonable cause to expect non-payment on the balance 0/ probabilities to avoid being found guilty

The Committee considers that clause 41, to the extent that it gives effect to these provisions, engages that the Charter's right to be presumed innocent until proved guilty according to law.

While the Statement 0/ Compatibility addresses a number 0/ mild evidential burdens In the applied law, it does not address the absolute liability provision in s. 588G{3A} or the reverse onus provisions in ss. 588H and 592{2}.

The Committee will write to the Minister seeking further in/ormation as to the compatibility 0/ ss. 558G{3A}, 588H and 592{2} with the Charter's right to be presumed innocent until proved guilty according to law. Pending the Minister's response, the Committee draws attention to clause 41 and to ss. 588G{3}, 588H and 592{2} 0/ the Corporations Act 2001 {Cth}.

Minister's Response

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Thank you for your letter dated 9 June 2010 regarding the Scrutiny 0/ Acts & Regulations Committee's (the Committee) consideration 0/ the Associations Incorporation Amendment Bill 2010 (the Bill).

The Committee has sought further in/ormation regarding the operation and scope 0/ certain provisions contained in the Bill. I have responded to each issue below.

The application 0/ sections 28, 29, 32, 36 and 38 0/ the Charter to the laws applied in Victoria by clause 41

The Committee seeks further in/ormation as to the application 0/ sections 28, 29, 32, 36 and 38 0/ the Charter 0/ Human Rights and Responsibilities (the Charter) to the laws applied in Victoria by clause 41 0/ the Bill. Clause 41 declares certain provisions to be applied Corporations matters for the purposes 0/ the Corporations (Ancillary Provisions) Act 2001, and thus applies modified versions 0/ Parts 9.4B, 5.2, 5.3A, 5.4, 5.4B, 5.5, 5.6, 5.7B, 5.8, 5.8A and 5.90/ the Corporations Act 2001 (Cth) as if they were laws 0/ Victoria.

Section 28(1) 0/ the Charter provides that a member 0/ Parliament who proposes to introduce a Bill into a House 0/ Parliament must cause a statement 0/ compatibility to be prepared in respect 0/ that Bill. As the present Bill was introduced into a House 0/ the Victorian Parliament, a statement 0/ compatibility was required for the Bill. It was also necessary for the statement 0/ compatibility to address the provisions applied by virtue 0/ clause 41 0/ the Bill, as the substance 0/ the Bill would not be intelligible without reference to the contents 0/ the applied law, being the Corporations Act 2001 (Cth).

Section 29 accordingly also applies.

Section 32(1) 0/ the Charter provides that, so far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights. Section 32(1) applies to (statutory provisions', 'Statutory provision' is defined in the Charter to mean "an Act...or a subordinate instrument or a provisian 0/ an Act...or a/ a subordinate instrument". Section 38 0/ the Interpretation 0/ Legislation Act 1984 provides that an (Act' "means an Act passed by the Parliament 0/ Victoria". Sectian 32(1) 0/ the Charter does not extend to the interpretation 0/ legislation enacted by the Parliaments 0/ other jurisdictions. Consequently, the


relevant applied provisions of the Corporations Act 2001 (Cth) cannot be statutory provisions for the purposes of section 32(1) of the Charter.

Section 36 provides that the Supreme Court can make a declaration of inconsistent interpretation regarding a statutory provision. For the reasons discussed above, section 36 of the Charter will not extend to the modified provisions of the Corporations Act 2001 (Cth) applied under clause 41 of the Bill.

Section 38(1} of the Charter provides that it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right. Section 38 of the Charter will apply to public authorities within the meaning of section 4 of the Charter who carry out functions under the Bill, such as the Registrar of Incorporated Associations and the Director of Consumer Affairs.

The human rights effect of section 596B(b)(ii} of the Corporations Act 2001 (Cth)

Clause 41 of the Bill, which will insert a new section 37AI into Associations Incorporation Act 1981 (the Act), declares Part 5.9 of the Corporations Act 2001 (Cth) to be an applied Corporations legislation matter with modifications. Section 596B(b)(ii} of Part 5.9, as modified, provides that the Supreme Court may summon a person for examination about an incorporated association's examinable affairs if the Court is satisfied that the person may be able to give information about examinable affairs of the incorporated association.

Section 597(12A} provides a direct use immunity in relation to such examinations if the persons claims that the question being asked might tend to incriminate the person or make the person liable to a penalty.

The Statement of Compatibility concludes that new section 37Allimits the protection against selfincrimination, as a person who is compelled to be examined by the Court is not protected against the indirect use of that information in future criminal proceedings. However, the Statement provides that the limitation is reasonable under section 7(2} of the Charter.

The Committee is concerned that section 596B(b)(ii} may apply to family members of officers of an incorporated association, or to anyone who receives a service from a community or non-profit group. As stated above, this section provides the Court with the discretionary power to summon a person for examination if the Court considers that the person may be able to provide information about the 'examinable affairs' of the incorporated association, which is limited, under section 9 of the Corporations Act 2001 (Cth), to information concerning the promotiOn, formation, management, administration or winding up of the incorporated association; any other affairs of the incorporated association; or the business affairs of a connected entity of the incorporated association, in so far as they are, or appear to be, relevant to the incorporated association or to anything that is included in the incorporated association's examinable affairs.

In my view, it is highly unlikely that persons such as those referred to by the Committee would be at risk of incriminating themselves with the information which they provide to a Court through the operation of these provisions, given that such persons would not be office-holders of the incorporated association and so would not be subject to the relevant duties and associated penalties. Further, a person who applies to the Court for a summons to examine a person under section 596B must lodge an affidavit in support of his or her application as required by section 596C. This supports the requirement in section 596B that the Court "must be satisfied" that the person may be able to give information about the examinable affairs. of the association. Consequently, there must be some information before the Court to indicate that a person may be able to give relevant information before a summons will be issued.

The Committee also raised the issue of whether the fact that the immunity will only apply if first raised by the person seeking to rely on the immunity renders the abrogation of the privilege against self-incrimination unreasonable. This issue is relevant to the mandatory examination power in

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section 596A of the Corporations Act 2001 (Cth) (which is discussed in the Statement of Compatibility) as well as to the discretionary power in section 596B.

I have given further consideration to this issue and have concluded that this does not cause the abrogation of the privilege to be unreasonable so as to breach the right in section 25(2)(k) of the Charter. In reaching that view, I have taken into account two factors in particular.

First, in order to exercise the privilege against self-incrimination (which is protected by section 25(2)(k)), a person surely needs to claim the privilege at the point of the refusal to testify. Here, the privilege has been abrogated but replaced with a direct use immunity. It is not clear to me why the fact that the person must still claim the privilege at the point of testimony itself renders the abrogation of the right unreasonable.

Additionally, I have also taken into account the fact that there is nothing in the relevant provisions which prevents the Supreme Court from providing a person who is subject to a summons under sections 596A or 596B with a warning or a caution regarding their need to claim the privilege against self-incrimination. Under section 6(2)(b) of the Charter, the Court must act in accordance with sections 24 and 25 of the Charter, and so could issue such a caution to prevent a breach of a person's rights in sections 24 and 25 of the Charter from occurring.

The right to be presumed innocent and sections SS8G(3}(a), S88H and 592(2)

Clause 41 of the Bill also inserts a new section 37AJ(2) in the Act which applies modified versions of sections 588G(3) and 592 of the Corporations Act 2001 (Cth).

Section 558G(3)(a)

Section 588G(3) of the Corporations Act 2001 (Cth), as modified, provides that a committee member of an incorporated association commits an offence if the incorporated association was, or became, insolvent and the committee member suspected that the incorporated association was insolvent or would become insolvent as a result of incurring a debt. The first element of this offence, in section 588G(3)(a), is that the incorporated association incurs a debt at a particular time. Section 588G(3A) provides that absolute liability applies to this paragraph. Clause 37AK of Bill provides that the Criminal Code Act 1995 (Cth) does not apply to the applied offences and that a note to an applied provision that refers to the Criminal Code Act 1995 (Cth) must be disregarded.

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. In my view, section 588G(3A) does not engage the right to the presumption of innocence in section 25(1) of the Charter, as it does not require a defendant to prove any element of the offence. The creation of section 588G(3)(a) as an absolute liability element of the offence means that there is no knowledge requirement regarding this element in relation to either the prosecution or the defendant - all that is required under section 558G(3)(a) is that the prosecution prove that the debt was incurred. As the defendant is thus not required to disprove an element of the offence, section 25(1) is not engaged.

Additionally, the offence in section 588G(3) has five elements. While the element in section 588G(3)(a) is one to which absolute liability applies, this is not the case in relation to the other elements of the offence, one of which is that the prosecution must prove that the committee member's failure to prevent the debt from occurring was dishonest. It is difficult to see how the prosecution could prove this element of the offence if the relevant committee member was honestly and reasonably unaware that the debt was incurred.

Section S88H

Section 588H of the Corporations Act 2001 (Cth) is a defence to the civil penalty provision in section 588G(2) rather than to a criminal offence.

I accept that it is possible that the classification of a penalty as civil may not be determinative of whether or not the right to the presumption of innocence in section 25(1) of the Charter is engaged.


Justice Wi/son of the Canadian Supreme Court in R v Wigglesworth [1987] 2 SCR 541 held that the presumption applies if the matter involves the imposition of true penal consequences. In the present case, however, I do not consider that the penalty for breaching section 588G(2) can be classed as 'true penal consequences'. If a person is found liable for breaching a civil penalty under the applied legislation, they may be subject to a declaration of contravention under section 1317E, a pecuniary penalty order under section 1317G (which has been modified to be a maximum penalty of up to of $20,000) or a compensation order under sections 1317H or 1317HA. As the pecuniary penalty is a civil debt in the form of an order made in civil proceedings against the person, a person will not be imprisoned for a failure to discharge the debt.

Accordingly, I consider that the presumption of innocence does not apply to the reverse onus in section 588H.

Section 592(2}

Section 592(2) of the Corporations Act 2001 (Cth) provides a defence to the offence of fraudulent conduct in incurring certain debts in section 592(1). Section 592(2) requires defendants to prove to the balance of probabilities the defences of lack of consent or lack of reasonable cause to expect non-payment.

Section 592 relates to the incursion of debts prior to 23 June 1993 and it is unlikely that it will be used with any frequency, if at all.

Nevertheless, I accept that by placing a burden of praof on a defendant, the defences in this provision limit the right to be presumed innocent in section 25(1) of the Charter. However, I consider that the limits upon the right ore reasonable and justifiable in a free and democratic society for the purposes of section 7(2) of the Charter having regard to the following factors.

(a) The nature of the right being limited

The right to be presumed innocent is an important right that has long been recognised well before the enactment of the Charter. However, the courts have held that it may be subject to limits, particularly where, as here, the offence is of a regulatory nature; and a defence is enacted for the benefit of a defendant to escape liability where the person did not consent to the relevant debt being incurred, or where the person did not have reasonable cause to suspect that the incorporated association could not pay its debts.

(b) The importance of the purpose of the limitation

The purpose of imposing a legal burden is to ensure the effectiveness of enforcement and compliance with the Bill by enabling the offences to be effectively prosecuted and to thus operate as an effective deterrent. The importance of this purpose lies in the fact that it would be difficult and onerous for the Crown to investigate and prove these elements beyond reasonable doubt.

The purpose and effect of the defences in this provision is to provide a defendant with an opportunity, in appropriate circumstances, to escape culpability for the incorporated association incurring a debt in breach of obligations under the Bill, because the contravention was not deliberate.

(c) The nature and extent of the limitation

The burden of proof is imposed in respect of the defences. The prosecution would first have to establish that there were reasonable grounds at the relevant time to expect that the incorporated association would not be able to pays its debts.

The defendants seeking to rely on these defences will be officer holders of an incorporated association. Therefore, they should be well awore of the requirements of their position and, as such, should have processes and systems in place that enable them to effectively meet these requirements, including maintaining proper financial records and associated documents which would enable defendants to prove the elements of the relevant defence.

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(d) The relationship between the limitation and its purpose

The imposition of a burden of proof on the defendant is directly related to the purpose of enabling the relevant offence to operote as an effective deterrent while also providing a suitable defence in circumstances where the contravention was not deliberate. Unless the defendant can satisfy the court that the debt was incurred without the defendant's consent, or that the defendant did not have reasonable cause to expect that the incorporated association cannot pay its debts or will not be able to pay its debts when they become due, he or she will be convicted.

(e) Less restrictive means reasonably available to achieve the purpose

Although an evidential onus would be less restrictive upon the right to be presumed innocent, it would not be as effective because it could be too easily discharged by a defendant, leaving the prosecution in the difficult position of having to prove whether the defendant consented to the incurrence of the debt or whether the defendant had reasonable cause to expect that the incorporated association would not be able to pay its debt. The inclusion of a defence with a burden on the accused to prove the matters on the balance of probabilities achieves an appropriate balance of all interests, bearing in mind, in particular, the fact that defendants will be office holders and, as discussed above, can reasonably be expected to have systems in place to enable them to discharge the burden.

Accordingly, section 592(2} of the applied legislation is compatible with the Charter.

HON TONY ROBINSON MP MINISTER FOR CONSUMER AFFAIRS

16 September 2010

The Committee thanks the Minister for this response.

Education and Care Services National Law Bill 2010

The Bill was introduced into the Legislative Assembly on 1 September 2010 by the Hon. Maxine Morand MLA. The Committee considered the Bill on 13 September 2010 and made the following comments in Alert Digest No. 13 of 2010 tabled in the Parliament on 14 September 2010.


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Delegation of legislative power - Modifications to certain Commonwealth Acts by regulations

The Committee notes that for the purposes of the National Quality Framework (the 'NQF') certain provisions allow regulations to modify two Commonwealth Acts, these are the Privacy Act 1988 (Cth), and the Freedom of Information Act 1982 (Cth). Further regulations may modify the application of the State Records Act 1998 (NSW) that will apply for the purposes of the NQF. The explanatory memorandum in introducing these sections provides -

In the interests of the nationally consistent application of this Law, Commonwealth information and privacy laws will be applied instead of separate laws in each participating jurisdiction.

However, in respect to the relevant sections the explanatory memorandum does not provide any assistance as to the necessity or desirability to include provisions that allow a subordinate instrument to modify primary legislation. [263, 264 and 265]

The Committee notes that in general a power to allow a subordinate instrument to modify an Act should be considered to be an inappropriate delegation of legislative power.

Inappropriate delegation of legislative power


The Committee will write to the Minister seeking further advice whether she is satisfied that there is a need to include provisions in the National Law that permit regulations to modify an Act.

Minister's Response

Thank you for your letter concerning the Education and Care Services National Law Bill 2010 (the Bill). In the letter the Scrutiny of Acts and Regulations Committee (SARC) seeks further information on the necessity or desirability of provisions in the Bill for the modification by regulation of the Commonwealth Privacy Act 1988 and Freedom of Information Act 1992, and the New South Wales State Records Act 1998.

The Bill does provide for regulations (subordinate instruments) to modify primary legislation to achieve a national scheme that is able to be consistently applied acrass all jurisdictions.

The Bill borrows from previous examples of national applied laws legislation, and has been subject to negotiation and agreement by all jurisdictions at the Ministerial Council level and through the Australasian Parliamentary Counsel's Committee processes. Examples of other national applied laws legislation which contain similar provisions include the Health Practitioner Regulation National Law and the National Occupational Licensing Law.

SARC has previously recognised that this kind of approach may be a practical necessity of taking part in national scheme legislation to achieve uniformity.

Application of Commonwealth Privacy, Freedom of Information and Ombudsman Acts

After considering several options in relation to freedom of information, privacy and Ombudsman legislation, including the national application of Victorian laws and retaining the separate laws of each jurisdiction, it was concluded that, in the interests of national consistency, using Commonwealth legislation was the most desirable option.

The Bill tailors the application by providing that a reference to the Commonwealth Office of the Privacy Commissioner in the Commonwealth Act is as if it were a reference to the Office of the National Education and Care Services Privacy Commissioner. Similar provisions apply to the Commonwealth Freedom of Information Commissioner and Ombudsman. The Commonwealth law will apply as a state law with this modification and with any other modifications made by the National Law regulations. The regulations will be made prior to 1 January 2012, subject to the passage of the Bill.

This approach addresses concerns about having a state law purport to unilaterally give function to Commonwealth entities where there is no corresponding Commonwealth law providing for that entity to per/orm those functions for the purposes of the state law.

Application of New South Wales Records Legislat/on

The decision to apply the State Records Act 1998 was made in response to jurisdictions' concerns that the Commonwealth legislation inferred Commonwealth ownership of the records. The State Records Act 1998 applies only in relation to the Australian Children's Education and Care Quality Authority (ACECQA), the national authority, which will be based in New South Wales. Documents held by state and territory regulatory authorities will remain under the relevant legislation in each jurisdiction.

This approach provides certainty for the administration of the records held by ACECQA. The Bill does provide for the State Records Act 1998 to be modified by national regulations, as it will be applied as a law of each state.

In light of the above information, I consider the current provisions in the Bill to be necessary for the consistent application of freedom of information, privacy, Ombudsman and records laws to this national scheme legislation.

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I f you have any queries in relation to the Bill please contact Karen Weston, Acting Assistant General Manager, Early Childhood Strategy Division, Department of Education and Early Childhood Development, on 9651 3256.

I trust this information is of assistance to you.

Maxine Morand MP Minister for Children and Early Childhood Development

1 October 2010


Justice Legislation Amendment (Victims of Crime and Other Matters) Bill 2010

The Bill was introduced into the legislative Assembly on 23 March 2010 by the Hon. Rob Hulls MLA. The Committee considered the Bill on 12 April 2010 and made the following comments in Alert Digest No.5 of 2010 tabled in the Parliament on 13 April 2010.


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Charter report

Freedom of movement - Fair hearing - Police may ban crime suspects from city or town centres for up to 72 hours - Whether reasonable limit - Whether punishment or prevention

Summary: Clause 49 increases the period that may be specified in a banning notice from 24 to 72 hours. The Committee is concerned that clause 49 may qualitatively change the banning notice scheme.

The Committee notes that clause 49, amending existing s. l4BB(2} of the Liquor Control Reform Act 199B, increases the period that may be specified in a banning notice from 24 to 72 hours. Under existing Division 2 of Part 8A, police can issue such notices to people who they reasonably suspect have committed an offence in a designated area if they reasonably believe that the notice may be effective in preventing a further offence carrying the risk of alcohol-related violence or disorder in that area. Breaching a notice is punishable by a fine of over $2000.


The extension of the maximum duration for which a banning notice may be made, to 72 hours, is reasonable and appropriate as there have been a number of people to whom the police have had to give a banning notice on multiple occasions. Police have used the banning notice system effectively since its inception; however its efficacy can be enhanced through enabling police, in appropriate circumstances, to give notices of a significantly longer duration. The amendment is intended to increase the deterrent effect of banning notices, reduce the incidence of alcoholrelated violence and disorder and, consequently, enhance public safety.

The Committee observes that there are presently two different schemes for managing alcoholrelated violence or disorder in designated areas:

• Banning notices, which are short bans on the basis of suspected criminal behaviour, issued and reviewable by police officers.

• Exclusion orders, which are lengthy bans imposed on the basis of proved criminal behaviour, issued and reviewable by courts.


While the Committee appreciates that aI/owing banning notices to be issued for longer periods may be effective in reducing the incidence of violence or disorder, it is concerned that clause 49 may qualitatively change the banning notice scheme in two respects:

First, a 72-hour ban may extend well beyond the aftermath of a drunken evening and impinge on legitimate weekday activities. While existing s. 14S8(6) prevents a full banning notice from being issued to a person who lives or works in the designated area, such a notice may still be issued ta a person who needs to travel through that area to get to work, ottend school or for other legitimate purposes. As current designated areas include the entire Melbourne CBD (including the city loop train stations and all CBD tram lines) and the centres of some towns, the Committee considers that clause 49 engages the Charter's right to freedom of movement.

The Committee observes that, in the case of exclusion orders, legitimate activities in designated areas are accommodated by permitting the courts who issue the orders to permit entry to designated areas for 'specified purposes'. In his Statement of Compatibility to the Bill that introduced Part SA, the Minister remarked that this provision ensured that the negative effects of a long order could be avoided 'such as through the imposition of a condition enabling the offender to travel through the area to attend work'. By contrast, banning notices are less flexible, as the issuing officer must ban a suspect either from the entire designated area or from all licensed premises in the area. More nuanced bans can only be achieved if a senior police officer decides to vary the notice.

Second, the increased 'deterrent effect' of a potential 72-hour ban may give banning notices a punitive aspect, especially if they are used to deter people who have been given notices on 'multiple occasions'. The existing scheme permits courts to take accaunt of an offender's past banning notices when making exclusion orders, but bars police from extending an existing notice or issuing multiple banning notices on the basis of a single suspected offence. The Committee is concerned that the use of 72-hour banning notices to deter people who are repeatedly suspected of offences in a designated area may amount to punishment of suspected criminal behaviour by police officers without a charge, trial or appeal and therefore may engage the Charter's rights with respect to criminal punishment, including a fair hearing by an independent tribunal, the presumption of innocence and the right to appeal to a court.

The Committee refers to Parliament for its consideration the questions of whether or not clause 49's extension of the maximum period for banning notices to 72 hours:

• by potentially allowing people to be banned by police from travelling through a city or town's centre for legitimate weekday activities, is a reasonable limit on the Charter's right to freedom of movement; and

• by increasing the deterrent effect of banning notices, engages the Charter's rights with respect to the punishment of suspected criminal behaviour, including the right to a fair hearing by an independent tribunal, the presumption of innocence and appeal rights.

The Committee will also write to the Attorney-General seeking further information as to whether clause 49 may lead to a person being prevented from travelling through a city or town centre for legitimate activities and whether the increased 'deterrent effect' of such bans amounts to the punishment of suspected behaviour or otherwise engages the Charter's right to a fair hearing. Pending the Minister's response, the Committee draws attention to clause 49.

Minister's Response

Thank you for your letter regarding the Committee's consideration of this 8i11, and advising of the two matters on which the Committee has requested further adVice. I apologise for the delayed response.

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406

First, the Committee has sought my response in relation to whether clause 49 of the 8i11 may lead to a person being prevented from travelling through a city or town centre for legitimate weekday activities. As you will recall, clause 49 of the 8i11 increases the maximum period of time that may be specified in a banning notice under the Liquor Control Reform Act 1998 (the Act) from 24 hours to 72 hours.

Under s1488 of the Act, a banning notice may only be given by a relevant police member to a person who the member suspects on reasonable grounds has committed or is committing a specified offence, wholly or partly in a designated area. As required by s1488(3), a banning notice cannot be given, unless the member believes on reasonable grounds that the giving of the notice may be effective in preventing a person from continuing to commit a specified offence or in preventing a further a specified offence from being committed. Subsection (4) sets out a substantial range of matters the member must consider in determining whether there are reasonable grounds for such a belief. The member must also consider that the specified offences may involve or give rise to a risk of alcohol-related violence or disorder.

In effect, these provisions ensure that banning notices are only given where there are strong community protection grounds for doing so and they would be a proportionate response to a risk of alcohol-related violence or disorder. As such, while it is possible that a 72-hour banning notice issued on a weekend may now prevent a person from availing themselves of the most efficient or timely route to, for example, their place of work on the following Monday, in my opinion, the purpose that is fulfilled by such a notice outweighs any temporary inconvenience that mayor may not be caused to that person.

The potential for any such inconvenience was also possible prior to these amendments, under the previous 24-hour maximum period. For example, a notice issued on a Friday night may have prevented a person from conveniently travelling to his or her place of work on the Saturday. As such, I da not consider that the extended duration of banning notices represents a significant qualitative change to the scheme, particularly given the continued requirement for proportionality, as outlined above, and the fact that 72-hours remains a relatively brief period.

I note that the Committee has drawn a comparison between banning notices and exclusion orders under s1481 of the Act, whereby the courts may allow a person to enter a designated area or licensed premises for specified purposes during the period of an exclusion order. It is appropriate that courts are able to exercise such a discretion, given the possible 12-month duration of an exclusion order and therefore the potential for offenders to experience long-term inconvenience or hardship as a result of not being able to enter a designated area for legitimate purposes. However, such inconvenience or hardship is distinguishable from that which might briefly arise under the much shorter term of a banning notice.

A person wishing to have their notice varied or revoked can, of course, apply under s148E of the Act to a police member of or above the rank of sergeant, who could take into account hardship and inconvenience. Other critical safeguards continue to apply for persons who live or work in a designated area (s1488(6)), or in a licensed premises in the area (s1488(7)). Given this capacity to tailor banning orders appropriately to a person's individual circumstances, I do not consider that the increased duration of banning notices creates an unreasonable limitation on the right to freedom of movement.

Second, the Committee has expressed concern that the 'deterrent effect' of the increased period of a banning notice may amount to 'the punishment of suspected behaviour or otherwise engage the Charters right to a fair hearing'.

As indicated by s1488(3) and (4), which I have discussed above, the purpose of banning notices is not to punish persons for 'suspected' offences. Instead, they are designed to protect the community against alcohol-related violence and disorder, and to enhance the freedoms and rights of community members, such as the rights to life, privacy, liberty and security of the person and rights


in respect of property. As such, I do not believe they should be regarded as punishment of a person, notwithstanding any deterrent effect they may have. Moreover, since banning notices per se do not amount to a person being charged with a criminal offence or being a party to a civil proceeding, they do not engage the Charter right to a fair hearing. Finally, I note that police members must of course comply with s38 of the Charter when exercising their powers.

I trust this addresses the concerns of the Committee and thank you for drawing these matters to my attention.


20 September 2010

The Committee thanks the Attorney-General/or this response.

Justice legislation Further Amendment Bill 2010

The Bill was introduced into the Legislative Assembly on 10 August 2010 by the Hon. Tim Holding MLA. The Committee considered the Bill on 30 August 2010 and made the following comments in Alert Digest No. 12 of 2010 tabled in the Parliament on 31 August 2010.


Charter report

Expression - Offences relating to recordings 0/ police interviews - Transitional provision

Summary: The Committee will write to the Minister concerning an error in the Second Reading Speech and the continuing absence of a transitional provision for the new offences concerning recordings of interviews introduced by the Justice Legislation Miscellaneous Amendments Act 2010.

The Committee notes that clause 6, inserting a new section 616 into the Crimes Act 1958, provides for transitional arrangements for Part 2 of the Bill, which in turn makes some minor amendments to offences inserted into the Crimes Act by the Justice Legislation Miscellaneous Amendments Act 2010.

In its report on the Bill for the earlier Act, the Committee remarked that the original scheme:

lacks any transitional provision. It therefore may apply to existing recordings that have already been disseminated or published. If that is correct, then any non- authorised person who currently possesses such a recording will commit an offence unless they destroy it prior to the bill receiving Royal Assent and a publisher will require permission from a court to republish a previously published recording.

In response to a query from the Committee, the Minister wrote:

It was always the intention that the new regime would apply only to recordings made on or after commencement of the Bill. I am considering whether an appropriate amendment is necessary to clarify this intention.

In his Second Reading Speech for the present Bill, the Minister remarked:

Finally, the bill addresses an issue raised by SARC in its Alert Digest No. 13 of 2009 by inserting a new transitional provision that makes it clear the scheme applies to recordings made on or after the commencement of the scheme.

This appears to be a reference to clause 6. However, the Committee observes that new section 616 does not address the scheme inserted by the earlier Bill and does not provide that that scheme only

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applies to recordings made after the scheme's commencement. Rather, it only provides that the minor adjustments to the scheme by the current Bill apply only to recordings made about the commencement of Part 2.

The Committee will write to the Minister concerning the error in the Second Reading Speech and the continuing absence 0/ a transitional provision for the new offences concerning recordings 0/ interviews introduced by the Justice Legislation Miscellaneous Amendments Act 2010.

Property - Offence to display or sell items capable 0/ being used to smoke methylamphetamine -Aluminium /oil, spoons and test tubes

Summary: Clause 11 makes it an offence to display or sell ice pipes. The definition of 'ice pipe' potentially includes everyday items such as aluminium foil, spoons and test tubes. The Committee considers that the clause may engage the Charter's right to property.

The Committee notes that clause 11, inserting a new Part VA8 into the Drugs, Poisons and Controlled Substances Act 1985, makes it an offence to display or sell ice pipes. The offences carry fines of 240 penalty units and new sections 80HD to 80HH provide for the seizure and forfeiture of such devices.

New section 80HA(a) defines 'ice pipe' to include 'a device:

capable of being used or intended for use or designed for the introduction, or for introducing, into the body of a person the drug of dependence methylamphetamine, by means of smoking or inhaling of smoke or fumes resulting from the heating or burning of methylamphetamine in a crystalline form ...

The Committee notes that the inclusion in the ban of devices 'capable of being used' to smoke methylamphetamine goes beyond the existing Victorian ban under the Fair Trading Act 1989 and equivalent bans in Queensland, South Australia and Western Australia. Only New South Wales has a similar ban.

The Committee observes that devices 'capable 0/ being used' to smoke methylamphetamine potentially include everyday objects such as aluminium /oil, spoons and test tubes. The Committee considers that the offence and forfeiture provisions are there/ore potentially so broad and vague in operation that they may engage the Charter right 'not to be deprived 0/ property other than in accordance with law.'

The Committee will write to the Minister seeking further in/ormation as to whether or not the definition 0/ 'ice pipe' in new section 80HA(a} may include aluminium /oil, spoons and test tubes.

The Committee refers to Parliament for its consideration the question 0/ whether or not clause 11, by banning the sale and display 0/ devices 'capable 0/ being used' to smoke methylamphetamine (potentially including all aluminium /oil, spoons and test tubes), and providing for their forfeiture, is compatible with the Charter's right not to be deprived 0/ property other than in accordance with law.

Minister's Response

408

Thank you for the letter dated 31 August 2010 regarding the Committee's consideration of the Justice Legislation Further Amendment Bill 2010. As I am the Minister who introduced the Bill into the Parliament, I have prepared this reply to the Committee's concerns.

The Committee has sought further information regarding the amendments contained in the Bill to the Crimes Act 1958, in relation to digital evidence capture, and the Drugs, Poisons and Controlled Substances Act 1981, in relation to ice pipes.

4

Alert r\;_.~_"'_ Nos. 1 to 14 of 2010

In relation to the amendments to the digital evidence capture scheme, I am of the view that further amendment is not necessary. The Bill makes it clear that the further amendments will not apply retrospectively. The concern about the scheme as originally enacted in the Justice Legislation Miscellaneous Amendments Act 2009 ignores the well-known principle of statutory interpretation that Parliament does not intend provisions to have a retrospective effect unless it explicitly says so or the provisions themselves lead only to that conclusion. In the case of the Bill and the amendments last year, there is nothing in the provisions to indicate retrospective application was intended. Indeed, this is also reflected in the second reading speech.

I note that the Committee has also roised concerns in relation to the amendments to the Drugs Poisons and Controlled Substances Act 1981 (the DPCS Act) to prohibit the display, sale and supply of 'ice pipes'. As the committee is aware, these amendments are intended to continue the existing ban on the supply of 'ice pipes' made pursuant to a ban order under the Fair Trading Act 1999 (the Fair Trading Act) which will cease to operate upon the introduction of the forthcoming Fair Trading Amendment (Australian Consumer Law) Bill 2010. This aim was reflected in the second reading speech.

In particular, the Committee has observed that the definition of 'ice pipe' outlined in section 80HA(a) of the amending legislation potentially captures everyday objects such as aluminium foil, spoons and test tubes. In the Committee's view, this was because the definition of 'ice pipe' includes, in part, 'a device capable of being used or intended for use or designed for the introduction, or for introducing, into the body of a person the drug of dependence methylamphetamine .. '. The Committee is concerned that the offence and forfeiture provisions may engage the Charter right 'not to be deprived of property other than in accordance with the law'.

As part of these concerns the Committee has noted that the inclusion of 'devices capoble of being used' to smoke methylomphetamine goes beyond the existing ban order. The bon order, set out in Victorian Government Gazette No S 11 22 January 2004, currently prohibits the supply of goods described as 'objects' including but not limited to 'ice pipes' that are used, intended for use, or designed for use in smoking or inhaling into the human body methamphetamine crystals'. I note that this definition is broadly drafted to include items other than 'ice pipes' which are used to smoke 'ice'. This would arguably extend to everyday objects such as those identified by the Committee if they were or could be used for the purpose of smoking ice.

Moreover, I note that the term 'object' which is used in the bon order, is broadly defined in the dictionary to include 'something that may be perceived by the senses, especiolly by sight or touch; a visible or tangible thing'! or 'a material thing that can be seen and touched'.2 In contrast, in order to foil within the definition of 'ice pipe' in section 80HA(0) on item must be 0 'device'. The term 'device' is not defined in the DPCS Act however, the dictionary definition stotes that a 'device'is 'on invention or contrivanceJ3 or more specifically, 'a thing made or adapted for a particular purpose especially a piece of mechanical or electronic equipment,. 4 It is unlikely that everyday items such as test tubes, spoons and aluminium foil can be said to be 'made or adapted' for the purpose of smoking methylamphetamine in its crystalline form. Accordingly, I consider these items will not be captured by the definition of 'ice pipe' in section 80HA(a) and am of the view that the definition of 'ice pipe' set out in this provision is not broader in scope than that under the existing ban order.

I note that the Department of Health has advised the Department of Justice that items such as spoons, and aluminium foil are not commonly used to smoke methylamphetamine. In particular,

Macquarie Dictionary.

Oxford English Dictionary

Macquarie Dictionary.

Oxford English Dictionary

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these items are not preferred because the smoke is too widely dispersed. Therefore, in practice these items are not likely to be sold for the purpose of smoking 'ice'.

Finally, I note that as a matter of practice Victoria Police will not target persons selling or displaying everyday objects such as those described by the Committee in their operations. Victoria Police understand that the intention of the Bill is to continue the operation of the existing prohibition on the supply of 'ice pipes' under the ban order. If necessary, instructions may be provided to operational members to ensure that devices such as spoons, test tubes and aluminium foil will not be the subject of prosecutions under the provisions of the amending legislation~ Rather, it is intended that the focus will be on glass pipes and similar glass implements that are used for smoking 'ice' as has been the case under the Fair Trading Act ban order.

For the reasons set out above I have concluded that the definition of 'ice pipes' in section 80HA(a) will not capture everyday objects and therefore the offence and forfeiture provisions do not engage the Charter right 'not to be deprived of property other than in accordance with the law',

Thank you for bringing this matter to my attention and for giving me the opportunity to respond to the Committee's concerns.

Bob Cameron MP Minister for Police & Emergency Services

16 September 2010


Occupational Licensing National Law Bill 2010

The Bill was introduced into the Legislative Assembly on 10 August 2010 by the Hon. Tim Holding MLA. The Committee considered the Bill on 30 August 2010 and made the following comments in Alert Digest No. 12 of 2010 tabled in the Parliament on 31 August 2010.


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Delegation 0/ legislative power - Modi/ications to certain Commonwealth Acts by regulations

The Committee notes that certain provisions allow regulations to modify a number of Commonwealth Acts, these are the Privacy Act 1988 (Cth), the Freedom 0/ Information Act 1982 (Cth) and the Archives Act 1983 (Cth). In each instance the explanatory memorandum provides that 'Modifications will be needed as some aspects of the [relevant Act] may not be relevant for the purposes of the national licensing system, or will need to be tailored to ensure that the protection works efficiently and effectively for the system. These modifications can be effected through the national regulations making power provided at subclauses (3) and (4)'.

The Committee notes that in general a power to allow a subordinate instrument to modify an Act should be considered to be an in appropriate delegation of legislative power.

The Committee notes the concerns of the Office of the Victorian Privacy Commissioner in respect to the modifications that may be made. to the Privacy Act 1988 (Cth) by regulations. The submission questions whether the Information Privacy Principles in the Commonwealth Act will apply. [135, 137 and 141J

The Committee will write to the Minister seeking further advice whether-

1. The Minister is satisfied that there is a need to include provisions in the National Law that permit regulations to modify an Act?


2. Whether the National Privacy Principles or the Information Privacy Principles will apply in to any modified provisions of the Privacy Act 1988 (Cth)?

Rights or freedoms - Relevance of spent convictions - Absence of Victorian spent conviction legislation - Whether Victorians at a disadvantage

The Committee notes the submission of the Office of the Victorian Privacy Commissioner in respect to the absence in Victoria of legislation in respect to spent convictions and whether this may place Victorian licence or permit applicants at a disadvantage to their interstate counterparts.

The Committee will write to the Minister in respect to the absence in Victoria of a legislative regime dealing with spent convictions and whether this may disadvantage Victorian applicants in anyway.

Minister's Response

Thank you for your letter of 31 August 2010 forwarded to the Honourable Tim Holding MP, Minister for Finance on behalf of the Scrutiny of Acts and Regulations Committee (the Committee) concerning the Occupational Licensing National Law Bill 2010 (the Bill). The Minister for Finance has referred your correspondence to me for response.

The Committee notes in its report that certain provisions of the Bill allow regulations to modify a number of Commonwealth Acts. The relevant Acts are the Privacy Act 1988 (Cth), the Freedom of Information Act 1982 (Cth), the Archives Act 1983 (Cth) and the Ombudsman Act 1976 (Cth). These Commonwealth Acts have been applied as laws of Victoria for the purposes of the national licensing system, except where functions are being exercised by Victorian entities under delegation from the National Occupational Licensing Authority. For Victorian entities exercising functions under delegation, the relevant Victorian Acts will continue to apply (except for functions relating to the national registers, which the Commonwealth Privacy Act will apply to).

These Commonwealth Acts have been applied as laws of Victoria to provide for the application of nationally consistent privacy, freedom of information, archives and ombudsman regimes to the national licensing system. The power for the regulations to modify these Commonwealth Acts as they apply to the national licensing system is necessary to ensure that these Acts will work in practice in all jurisdictions, including Victoria. For example, the Acts will need to be modified to apply as if references in the Acts to the Commonwealth Government were references to the Government of a participating jurisdiction (e.g. the Victorian Government).

The making of regulations will be important in the context of modifying these Commonwealth Acts as they apply to the national licensing system. The Bill provides for the national regulations to be tabled in each House of Parliament and allows the Parliament of each participating jurisdiction to disallow the regulations. If a majority of States and Territories disallow a regulation, the regulation will cease to have effect in all jurisdictions.

The Committee has also sought advice about whether the National Privacy Principles or the Information Privacy Principles will apply in any modified provisions of the Commonwealth Privacy Act. The Ministerial Council for Federal Financial Relations will make a decision about which set of privacy principles are most appropriately applied to the national licensing system. As Victoria's representative on the Ministerial Council, I will be seeking to ensure through this process that the most appropriate privacy protections are applied and will consult the Victorian Privacy Commissioner about this matter.

In its report, the Committee inquired about the implications of the absence of a Victorian spent convictions legislative regime for Victorian applicants. The explanatory memorandum accompanying the Bill makes it clear that the national regulations will be developed to require that a case-by-case assessment ;s undertaken of a person's particular criminal history. In assessing an

411


application for a national licence, the National Occupational Licensing Authority will have to have regard to all the relevant circumstances of an applicant's criminal history in determining their eligibility to hold a licence. This includes considering the nature of the offence and how long ago the offence was committed.

I thank the Committee for its observations and trust that my comments have been of assistance.

JOHN LENDERS MP Treasurer

24 September 2010

The Committee thanks the Treasurer for this response.

Plant Biosecurity Bill 2010

The Bill was introduced into the Legislative Assembly on 27 July 2010 by the Hon. Joe Helper MLA. The Committee considered the Bill on 9 August 2010 and made the following comments in Alert Digest No. 11 of 2010 tabled in the Parliament on 10 August 2010.


412

Charter report

Self-incrimination - People can be compelled to lead inspectors to evidence of their criminal conduct - Whether reasonable limit - Practice Note No 3

Summary: Clauses 117 & 118 allow a person to be compelled to lead an inspector to evidence of their criminal conduct. The Committee considers that the clauses may be incompatible with the Charter's right against compelled self-incrimination. It will write to the Minister seeking further information.

The Committee notes that clauses 117(1)(a) and 118(1) provide that an inspector may require anyone to answer any question bearing on the prevention, control or eradication of an exotic pest or disease, including answers that might tend to incriminate the person. Although clause 118(2) provides that those answers aren't admissible in most criminal proceedings, it does not bar the use of information derived from those answers in proceedings against the person. So, clauses 117 & 118 allow a person to be compelled to lead an inspector to evidence of their criminal conduct. The Victorian Supreme Court has held that schemes of this sort limit the Charter's right against selfincrimination, subject to the test for reasonable limits on rights in Charter s. 7(2).


[T]he questioning powers may only be used for the regulatory purpose of preventing, controlling or eradicating an exotic pest or disease or any plant or product that the inspector has reasonable grounds for suspecting is infected or infested with an exotic pest or disease. To the extent that incriminating evidence may be derived from those answers, it is incidental to that purpose .

... Answers to questions posed by an inspector... are likely to be information in the sole knowledge of the questioned. The abrogation of the privilege facilitates compliance with the act by enabling an inspector to access to [sic] information and evidence that is difficult or impossible to ascertain by alternative evidentiary means. There is a significant public interest in maintaining Victoria's biosecurity, and in prosecuting any regulatory breaches.

There are very real difficUlties with the inclusion of a derivative use immunity in the context of these regulatory powers. In particular, it would risk exclusion of the principal evidence of an

Alert LJ,"'.=;:>.;:> Nos. 1 to 14 of 2010

offence, namely the actual exotic plant or disease. A person could effectively immunise themselves against prosecution simply by disclosing to inspectors the location of an exotic plant of disease.

While the Committee agrees that protections against self-incrimination can be reasonably limited in narrow regulatory contexts, it is concerned that clause 117 is not limited to people who have voluntarily engaged in regulated activities and that clause 118(2)'s abolition of derivative use immunity is not limited to prosecutions under the Act.

The Committee observes that the Victorian Supreme Court rejected similar arguments to those in the Statement of Compatibility in relation to court-supervised investigations of organised crime and, in particular, held that derivative use immunity would only prevent the admission of evidence that 'could not have been obtained' without compelling the defendant to speak. All other evidence that the investigators discover would remain admissible. The balance of Australian statutes on plant biosecurity, including Victoria's current statute, either leave the privilege untauched or expressly provide for a derivative use immunity.

In light of these factors and the Supreme Court's clear ruling that a more protective scheme relating to organised crime was incompatible with the Charter, the Committee considers that clauses 117 and 118 may be incompatible with the Charter's right against compelled selfincrimination.

The Committee draws attention to its Practice Note No 3, published during the last sitting, which remarked:

The Cammittee would prefer that the analysis of reasonable limits set out the demonstrable justification for: the coercive power itselt any removal of the privilege against selfincrimination; any permission to use the answers or information derived from them in later proceedings; and any preconditions on the availability of protections against self-incrimination. The Statement's discussion of less restrictive alternatives reasonably available to achieve the purpose of the provision may address whether the privilege against self-incrimination could be abrogated in a narrower way.

The Committee observes that the Statement does not address the reasonableness of clause 118(2)'s provision that a person will only be immune from having their answers used against them at a later criminal proceeding if the person claimed the privilege prior to answering the question. Also, the discussion of less restrictive alternatives only addresses the options of complete retention or complete abolition of derivative use immunity, rather than a narrower abrogation, such as retaining derivative use immunity but expressly permitting the admission of the actual plant or disease.

In addition, the Committee notes that clause 118's terms may be ineffective for two reasons. First, clause 118(1" abolishing the privilege, appears to be in conflict with clause 132(2), retaining the privilege. Second, on current Victorian authority, Charter s. 32(1) would require clause 118(2) to be read as including derivative use immunity, even if a narrower immunity would be a reasonable limit of the Charter's right against self-incrimination.

In accordance with its Practice Note No 3, the Committee write to the Minister seeking further information as to whether or not:

o clause 118(2)'s provision that a person will only be immune from having their answers used against them at a later criminal proceeding if the person claimed the privilege prior to answering the question is a reasonable limit of the Charter's right against self-incrimination

o a narrower abrogation of derivative use immunity (such as retaining it but expressly permitting admission of evidence of the actual exotic plant or disease) would be a less restrictive alternative reasonably available to achieve the purpose of clause 118(2)

413


The Committee will also seek in/ormation as to the relationships between clause 11B{l} and clause 132{2}; and between clause llB{2} and Charter s. 32{1}. Pending the Minister's response, the Committee draws attention to clauses 117 & llB.

Presumption 0/ innocence - Deeming provision - Practice Note No 3

Summary: The Committee will write to the Minister seeking further information as the compatibility of the deeming provision in clause 129 with the Charter's right to be presumed innocent until proved gUilty.

The Committee notes that clause 129 provides that, 'in any prosecution... under this Act... a contravention ... proved in regard to any sample ... is deemed to have been proved with regard to the lot from which the sample was taken.' This provision appears to create an irrebuttable factual presumption. Similar provisions elsewhere allow the presumption to be refuted by evidence to the contrary. The Committee considers that clause 129 engages the Charter's right to be presumed innocent until proved guilty.

The Committee draws attention to its Practice Note No 3, published during the last sitting, which remarked:

The Statement of Compatibility for any Bill that creates... a provision that reduces the prosecution's burden to prove the accused's guilt... should state whether and how that provision satisfies the Charter's test for reasonoble limits on rights. Examples of such provisions include ones that... deem a fact to be proved in any circumstance ...

The Committee will there/ore write to the Minister seeking further in/ormation as the campatibility 0/ clause 129 with the Charter's right to be presumed innocent until proved gUilty.

Minister's Response

414

Thank you for your letter of 11 August 2010, regarding the Committee's consideration of the Plant Biosecurity Bill 2010 (the Bill).

The Committee has sought further information regarding the compatibility of certain provisions contained in the Bill. I would like to respond to each issue as outlined:

The compatibility 0/ clauses 117 and 11B with the right against self-incrimination

The Committee has sought further information as to:

• whether clause 118(2), which provides that a person will anly be immune from having their answers used against them at a later criminal proceeding if the person claimed the privilege prior to answering the question, is a reasonable limit on the right against self-incrimination;

• whether a narrower abrogation of derivative use immunity (such as providing for such an immunity but expressly permitting admission of evidence of the actual exotic plant or disease) would be a less restrictive alternative reasonably available to achieve the purpose of clause 11 8(2);

• the relationship between clause 11 8(1) and clause 132(2); and

• the relationship between clause 118(2) and section 32(1) of the Charter.

I will address each of these issues in turn

First, in my view, abrogating the privilege against self-incrimination and replacing it with an immunity where the person asserts the privilege prior to questioning is a reasonable limit upon the right. This is because, under clause 117(2), an inspector is required to bring a person's ability to avail themselves of the use immunity to that person's attention before making any requirement under clause 117(1). This necessarily includes that the person cannot decline to answer a question or


produce a document on the ground that the onswer or information may incriminate that person (clause 118(1)) and that, if that person claims the onswer, record or information may incriminate them before answering, then the question itselt any answer, record or document produced is not odmissible in evidence against the person in criminal proceedings (clause 118(2)).

Second, providing for evidence of the actual exotic plant or disease to be admissible would not, in my view, achieve the purpose of clause 11 8(2), which is to properly balance a person's interest in the right against self-incrimination (the core aspects of which are protected by the use immunity) and the public interest in ensuring that persons who put Victoria's biosecurity at risk, do not escape liability.

In my view, a qualified derivative use immunity that only allowed for the actual exotic plant or disease to be adduced in evidence (but not any other derivative evidence) would significantly undermine the ability to effectively prosecute breaches of the proposed Act. In the majority of cases, the eVidence of the actual exotic plant or disease will be unlikely, without more, to enable effective prosecution.

Excluding all other derivative evidence (which is, in any event, evidence that exists independently of the person who has provided the relevant answer and/or produced the relevant document) would jeopardise the success of proceedings which may be brought after all the relevant information about the exotic pest or disease in question has come to light. In that context, even a qualified derivative use immunity could have a detrimental effect on the way inspectors conduct themselves because they would be placed in the difficult position of having to weigh up the potential impact that a requirement to answer questions and/or produce documents may have on a subsequent prosecution with the importance of obtaining that information so as to ensure the protection of Victoria's biosecurity.

Third, clause 118(1) abrogates a person's right against self-incrimination in respect of requirements to answer questions and/or produce documents relating to the prevention, control or eradication of exotic pests or diseases whereas clause 132(2) expressly preserves the ability to refuse to answer questions and/or produce documents on the grounds that the answer or information may incriminate that person in respect of enforcement under the proposed Act generally.

These provisions are not in conflict. Clause 132(2) reflects the approach to inspectors' powers under the proposed Act generally where the privilege against self-incrimination is expressly preserved. In contrast, clause 118(2) abrogates the privilege against self-incrimination where an exotic pest or disease exists or an inspector has reasonable grounds to suspect a plant or plant product is infested with an exotic pest or disease. The abrogation of the privilege in these circumstances reflects the heightened risk posed to Victoria's biosecurity by exotic pests or diseases. The distinction will be clear in practice because, as discussed above, under clause 117(2), an inspector requiring answers and/or production of documents in the context of exotic pests or diseases is required to inform the person of whom the requirement is made of the abrogation of the privilege against selfincrimination and its replacement with a use immunity.

Fourth, in my view, applying section 32(1) of the Charter as explained in R v Momcilovic [2010J VCSA 50 to clause 118(2) will not necessarily mean that clause 11 8(2) is read as including derivative use immunity.

In Momcilovic, the Court of Appeal held that:

o section 32(1) of the Charter does not create a 'special' rule of interpretation (in the sense described in some of the United Kingdom cases), but rather forms part of the body of interpretive rules to be applied at the outset in ascertaining the meaning of the provision in question;

415


• under section 32(1), statutory provisions must be interpreted consistently with human rights "so far as it is possible to do so consistently with their purpose" - the test is one of consistency with the purpose of the provision(s) in question, rather than the legislation as a whole; and

• compliance with the section 32(1) obligation means exploring all 'possible' interpretations of the provision in question and adopting that interpretation which least infringes Charter rights providing that the preferred interpretation is consistent with the intention of the enacting Parliament; what is 'possible' is determined by the existing framework of interpretive rules, including the presumption against interference with rights.

As I have previously clarified in my Statement of Compatibility dated 28 July 2010, the purpose of clause 11 8(2) is to abrogate the privilege against self-incrimination and replace it with a use immunity only. I would expect this to be taken into account by any Court required to consider the intention of the enacting Parliament in including this provision in the proposed Act.

In any event, in my view, clause 118(2) is compatible with the privilege against self-incrimination because, in the context of a regulatory scheme designed to protect Victoria's biosecurity and where access to information about exotic pests and diseases is likely to be difficult or impossible to ascertain by alternative evidentiary means, it appropriately balances a person's interest in the right against self-incrimination (the core aspects of which are protected by a use immunity) and the public interest in ensuring that persons who put Victoria's biosecurity at risk, do not escape liability. It is also relevant that committing an offence under the proposed Act does not result in imprisonment.

The statutory context here is therefore materially different from that considered in Re an application under the Major Crime (Investigative Powers) Act 2004 [2009] VSC 381. That case concerned the interpretation compulsory questioning powers in the context of investigating criminal offences.

The compatibility of clause 1.29 with section 2S(1} of the Charter - the right to be presumed innocent until proven guilty

The Cammittee has sought further information as ta the compatibility of clause 129 with the right to be presumed innocent until proven guilty in section 25(1) of the Charter.

Clause 129 provides that if in any prosecution under the proposed Act a contraventian of the new Act's provisions is proved in regard to any sample, the contravention is deemed to have been proved with regard to the lot from which the sample was taken. In my view, this provision does not engage the right to he presumed innocent in section 25(1) of the Charter. It is a method of proof of the offence, and does not impose any onus on the accused.

The deeming mechanism in clause 129 ensures that, where contravention of a provision of the proposed Act has been proved in respect of a sample, it is not necessary to go through that process again in respect of the rest of the lot from which the sample was taken. Not only would such a process heincredibfy time-consuming but, by their very nature, pests and/or diseases are: (i) likely to have infected and/or infested more than just the sample from which they were taken; and (ii) extremely difficult to prevent (or contain) from spreading throughout Victoria. The deeming mechanism therefore ensures that inspectors' powers to prevent and, if necessary, contain potential biosecurity threats are actually workable in practice. In my view, to the extent clause 129 could be said to limit the right, any such limit would be reasonable in the circumstances.

JOE HELPER MP Minister for Agriculture

27 September 2010


416


'irrransport legislation Amendment (Compliance, fEll"n~co>rriCemell"nt am<dl !Regulation) Bill

The Bill was introduced into the legislative Assembly on 9 March 2010 by the Hon. Tim Pallas MLA. The Committee considered the Bill on 22 March 2010 and made the following comments in Alert Digest No.4 of 2010 tabled in the Parliament on 23 March 2010.

Committee Comment's

Delayed commencement - One (1) year rule - Inadequate explanatory material - Committee Practice Note No.1 oj 2005

The Committee notes the delayed commencement provision and draws attention to Committee Practice Note No. 1 oj 2005. The Committee notes that this Practice Note has now been in circulation jor over 4 years. The Practice Note makes it clear that the Committee on behalf of the Parliament has certain expectations concerning the explanation for delayed commencement provisions of over one (1) year from a Bills introduction in the Parlioment.

The Committee will draw this to the attention of the Minister and will seek further advice concerning this delayed commencement provision.

Minister's response

I am writing to you in response to the request for an explanation as to why the default commencement date of 1 July 2011 for the above Act is more than one year after 18 May 2010, the date on which the Act received the Royal Assent.

The reason for this is that the Act was developed in tandem with the Transport Integration Act 2010, and a number of provisions relied on the commencement of that Act. Therefore, it was appropriate for both Acts to have the same default commencement date of 1 July 2011 in order to ensure consistency. An explanation of the reason for the default commencement date of 1 July 2011 was provided on page 2 of the Explanatory Memorandum to the Bill.

If you have any further queries, please contact Peter Parsons on 9655 2064 or email [email protected]

MARTIN PAKULA MP Minister for Public Transport

28 September 2010


Committee Room 5 October 2010

417


418

A rr» rr» ® [ri) cd] 0 ~ jl

Index of Bills Reported 2009-10

Alert Digest Nos.

Accident Compensation Amendment Bill 2009 .............................................................................................. 1, 4

Appropriation (2010/2011) Bill 2010 ................................................................................................................. 7

Appropriation (Parliament 2010/2011) Bill 2010 ............................................................................................... 7

Associations Incorporation Amendment Bill 2010 ....................................................................................... 8, 14

Bail Amendment Bill 2010 .......................................................................................................................... 11, 12

Building Amendment Bill 2010 ....................................................................................................................... 6, 7

Child Employment Amendment Bill 2010 ...................................................................................................... 4, 7

Civil Procedure Bill 2010 ................................................................................................................................... 10

Climate Change Bill 2010 .................................................................................................................................. 11

Confiscation Amendment Bill 2010 .................................................................................................................. 12

Constitution (Appointments) Bill 2009 ............................................................................................................... 1

Consumer Affairs legislation Amendment Bill 2009 .......................................................................................... 2

Consumer Affairs legislation Amendment (Reform) Bill 2010 ......................................................................... 11

Control of Weapons Amendment Bill 2010 .............................................................................................. 8,9, 11

Courts legislation Miscellaneous Amendments Bill 2010 .............................................................................. 6,9

Credit (Commonwealth Powers) Bill 2010 ......................................................................................................... 3

Crimes legislation Amendment Act 2010 .......................................................................................................... 4

Crimes legislation Amendment Bill 2009 ....................................................................................................... 1, 4

Domestic Animals Amendment (Dangerous Dogs) Bill 2010 ............................................................................. 7

Drugs, Poisons and Controlled Substances Amendment (Prohibition of Display and Sale of Bongs) Bill 2010 ...................................................................................................................................................... 7

Education and Care Services National law Bill 2010 .................................................................................. 13, 14

Education and Training Reform Amendment Bill 2009 ...................................................................................... 1

Education and Training Reform Amendment (Skills) Bill 2010 ......................................................................... 12

Education and Training Reform Further Amendment Bill 2010 ..................................................................... 5, 7

Electoral Amendment (Electoral Participation) Bill 2010 ................................................................................... 9

Energy and Resources legislation Amendment Bill 2010 ................................................................................ 10

Environment Protection Amendment (landfill levies) Bill 2010 ....................................................................... 5

Electricity Industry Amendment (Critical Infrastructure) Bill 2009 .................................................................... 3

Equal Opportunity Bill 2010 ........................................................................................................................... 4, 5

Fair Trading Amendment (Australian Consumer law) Bill 2010 ...................................................................... 12

Fair Trading Amendment (Unfair Contract Terms) Bill 2010 .............................................................................. 6

Fire Services Commissioner Bill 2010 ............................................................................................................... 13

419


Firearms and Other Acts Amendment Bill 2010 ......................................................................................... 10, 12

Gambling Regulation Amendment (Licensing) Bill 2010 .................................................................................... 6

Government (Political) Advertising Bill 2010 ................................................................................................... 13

Health and Human Services Legislation Amendment BUI 2010 ........................................................................ .4

Judicial Commission of Victoria Bill 2010 ......................................................................................................... 13

Juries Amendment (Reform) Bill 2010 ....................................................................................................... 10, 12

Justice Legislation Amendment Bill 2010 ....................................................................................................... 4, 7

Justice Legislation Amendment (Victims of Crime Assistance and Other Matters) Bill 2010 ...................... 5, 14

Justice Legislation Further Amendment Bill 2010 ...................................................................................... 12, 14

Justice Legislation Miscellaneous Amendments Bill 2009 ................................................................................ .4

Legislation Reform (Repeals No. 6) Bill 2009 ...................................................................................................... 1

Liquor Control Reform Amendment (ANZAC Day) Bill 2010 .............................................................................. 2

Liquor Control Reform Amendment Bill 2010 .................................................................................................. 11

Livestock Management Bill 2009 ........................................................................................................................ 1

Local Government and Planning Legislation Amendment Bill 2010 ................................................................ 11

Magistrates' Court Amendment (Mental Health List) Bill 2009 ......................................................................... 1

Marine Safety Bill 2010 ............................................................................................................................... 12, 13

Members of Parliament (Standards) Bill 2010 ............................................................................................... 5, 7

Mineral Resources Amendment (Sustainable Development) Bill 2010 ........................................................... 11

Occupational Licensing National Law Bill 2010 .......................................................................................... 12, 14

Offshore Petroleum and Greenhouse Gas Storage Bill 2010 ............................................................................. 2

Parks and Crown Land Legislation (Mount Buffalo) Bill 2010 ............................................................................ 7

Personal Property Securities (Statute Law Revision and Implementation) Bill 2010 ................................. 11, 12

Personal Safety Intervention Orders Bill 2010 ............................................................................................. 9, 11

Pharmacy Regulation Bill 2010 ....................................................................................................................... 7,9

Plant Biosecurity Bill 2010 ........................................................................................................................... 11, 14

Primary Industries Legislation Amendment Bill 2010 ................................................................................ 10, 12

Private Security Amendment Bill 2010 ....................................................................................................... 11, 12

Public Finance and Accountability Bill 2009 ....................................................................................................... 1

Prahran Mechanics' Institute Bill 2010 ............................................................................................................... 6

Public Finance and Accountability Bill 2009 ....................................................................................................... 6

Radiation Amendment Bill 2010 ........................................................................ ; ................................................ 3

Residential Tenancies Amendment Bill 2010 ................................................................................................... 12

Road Legislation Miscellaneous Amendments Bill 2010 .................................................................................. 12

Road Safety Amendment (Hoon Driving) Bill 2010 .......................................................................................... 13

Serious Sex Offenders (Detention and Supervision) Bill 2009 ............................................................................ 1

Severe Substance Dependence Treatment Bill 2009 ..................................................................................... 1, 6

State Taxation Acts Amendment Bill 2010 ......................................................................................................... 7

Statute Law Amendment (National Health Practitioner Regulation) Bill 2010 .................................................. 3

Subordinate Legislation Amendment Bill 2010 ................................................................................................ 11

Superannuation Legislation Amendment Bill 2010 ...................................................................................... 8,11

Summary Offences and Control of Weapons Acts Amendment Bill 2009 ......................................................... 1

Supported ReSidential Services (Private Proprietors) Bill 2010 ......................................................................... 9

420


Therapeutic Goods (Victoria) Bill 2010 ........................................................................................................... 5, 6

Traditional Owner Settlement Bill 2010 ..................................................................................................... 11, 13

Transport Accident and Accident Compensation Legislation Amendment Bill 2010 ................................. 11, 13

Transport Integration Bill 2009 ...................................................................................................................... 1, 2

Transport Legislation Amendment (Compliance, Enforcement and Regulation) Bill 2010 ......................... .4, 14

Transport Legislation Amendment (Ports Integration) Bill 2010 ....................................................................... 7

Tourist and Heritage Railways Bill 2010 ........................................................................................................... 11

Trustee Companies Legislation Amendment Bill 2010 ....................................................................................... 5

Water Amendment (Victorian Environmental Water Holder) Bill 2010 ...................................................... 8, 10

Working with Children Amendment Bill 2010 .................................................................................................... 9

421


422

A~~~ITil©JD~ ~

Committee Comments classified by Terms of Reference

This Appendix lists Bills under the relevant Committee terms of reference where the Committee has raised issues requiring further correspondence with the appropriate minister.

Alert Digest Nos.

Section lI.7(a)

(i) trespasses unduly upon rights or freedoms

Accident Compensation Amendment Bill 2009

Occupational Licensing National Law Bill 2010 1

12

(ii) makes rights, freedoms or obligations dependent upon insufficiently defined administrative powers

Transport Accident and Accident Compensation Legislation Amendment Bill 2010 Transport Integration Bill 2009

(iii) makes rights, freedoms or obligations dependent upon non-reviewable administrative decisions

Transport Integration Bill 2009

11 1

1

(iv) unduly requires or authorises acts or practices that may have an adverse effect on privacy within the meaning of the Information Privacy Act 2000

Occupational licenSing National Law Bill 2010

(vi) inappropriately delegates legislative power

Education and Care Services National Law Bill 2010 Justice Legislation Amendment Bill 2010 Marine Safety Bill 2010 Public Finance and Accountability Bill 2009 Transport Integration Bill 2009

Transport Legislation Amendment (Compliance Enforcement and Regulation) Bill 2010 Water Amendment (Victorian Environmental Water Holder) Bill 2010

12

13 4

12 1 1 4 8

(viii) is incompatible with the human rights set out in the Charter of Human Rights and Responsibilities

Associations Incorporation Amendment Bill 2010 Building Amendment Bill 2010

Child Employment Bill

Civil Procedure Bill 2010

Control of Weapons Amendment Bill 2010

Courts Legislation Miscellaneous Amendments Bill 2010

8 6

4 10

8 6

423


Crimes Legislation Amendment Act 2010 4 Crimes Legislation Amendment Bill 2009 1 Drugs, Poisons and Controlled Substances Amendment (Prohibition of Display and Sale of Bongs)

Bill 2010 7 Equal opportunity Bill 2010 4 Fair Trading Amendment (Australian Consumer Law) Bill 2010 12 Firearms and Other Acts Amendment Bill 2010 10 Judicial Commission of Victoria Bill 2010 13 Juries Amendment (Reform) Bill 2010 10 Justice Legislation Amendment Bill 2010 4 Justice Legislation Amendment (Victims of Crime Assistance and Other Matters) Bill 2010 5 Justice Legislation Further Amendment Bill 2010 12 Livestock Management Bill 2009 1 Marine Safety Bill 2010 12 Members of Parliament (Standards) Bill 2010 5 Personal Property Securities (Statute Law Revision and Implementation) Bill 2010 11 Personal Safety Intervention Orders Bill 2010 9 Pharmacy Regulation Bill 2010 7 Plant Biosecurity Bill 2010 11 Primary Industries Legislation Amendment Bill 2010 10 Private Security Amendment Bill 2010 11 Severe Substance Dependence Treatment Bill 2009 1 Superannuation Legislation Amendment Bill 2010 8 Therapeutic Goods (Victoria) Bill 2010 5 Traditional Owner Settlement Bill 2010 11

Section 17(b)(i), (ii) and (iii)

(i) and (ii) repeals, alters or varies the jurisdiction of the Supreme Court

Accident Compensation Amendment Bill 2009 Plant Biosecurity Bill 2010 Transport Accident and Accident Compensation Legislation Amendment Bill 2010

424

1 11 11

ApfPJendox 3S Ministerial Correspondence

Table of correspondence between the Committee and Ministers during 2009-110

Bill Title Minister! Member Date of Committee Alert Digest No. Letter! Minister's Issue raised!

Response Response Published

Electricity Industry Amendment (Critical Energy and Resources 10.11.09 13 of 2009

Infrastructure) Bill 2009 03.03.10 30/2010

Justice Legislation Miscellaneous Amendments Police and Emergency 10.11.09 13 of 2009 Bill 2009 Services 16.03.10 40/2010

Constitution (Appointments) Bill 2009 Premier 24.11.09 14 of 2009 12.01.10 10/2010

Serious Sex Offenders (Detention and Corrections 24.11.09 140f 2009 Supervision) Bill 2009 16.12.09 10/2010

Summary Offences and Control of Weapons Police and Emergency 24.11.09 14 of 2009 Acts Amendment Bill 2009 Services 07.01.10 10/2010

Consumer Affairs Legislation Amendment Bill Consumer Affairs 08.12.09 15 of 2009 2009 15.02.10 20/2010

Accident Compensation Amendment Bill 2009 Finance, WorkCover and 02.02.10 1 of 2010 the Transport Accident 09.03.10 40/2010 Commission

Crimes legislation Attorney-Genera I 02.02.10 1 of 2010 Amendment Bill 2009 15.03.10 40/2010

Transport Integration Bill 2009 Transport 02.02.10 1 of 2010 22.02.10 20/2010

Equal Opportunity Bill 2010 Attorney-General 23.03.10 4 of 2010 13.04.10 50/2010

Public Finance and Accountability Bill 2009 Treasurer 02.02.10 1 of 2010 15.04.10 60/2010

Severe Substance Dependence Treatment Bill Mental Health 02.02.10 1 of 2010 2009 21.04.10 6 of 2010

Therapeutic Goods (Victoria) Bill 2010 Health 13.04.10 5 of 2010 29.01.10 60/2010

Building Amendment Bill 2010 Planning 05.05.10 6 of 2010 24.05.10 70/2010

~:PIOYme", Amendment Attorney-General 23.03.10 4 of 2010 19.05.10 70/2010

. Justice legislation Amendment Bill 2010 Attorney-General 23.03.10 4 of 2010 05.05.10 70/2010

Education and Training Reform Further on 13.04.10 5 of 2010 Amendment Bill 2010 07.05.10 70/2010

Members of Parliament (Standards) Bill 2010 Premier 13.04.10 5 of 2010 13.05.10 70/2010

425

I


Bill Title Minister! Member Date of Committee Alert Digest No. Issue Letter! Minister's raised! Response

Response Published

I Courts Legislation Miscellaneous Amendments Attorney-General 05.05.10 6 of 2010 • Bill 2010 08.06.10 9 oj 2010

Pharmacy Regulation Bill 2010 Health 25.05.10 7 of 2010 08.06.10 9 oj 2010

Water Amendment (Victorian Environmental Water 08.06.10 8 of 2010 I Water Holder) Bill 2010

Control of Weapons Amendment Bill 2010 Police and Emergency 08.06.10 8 of 2010 Services 27.07.10 11 oj2010

Personal Safety Intervention Orders Bill 2010 Attorney-General 22.06.10 9 of 2010 27.07.10 11 oj2010

Superannuation Legislation Amendment Bill Finance 08.06.10 8 of 2010 2010 27.07.10 110j2010

Firearms and Other Acts Amendment Bill 2010 Police and Emergency 27.07.10 10 of 2010 Services 18.08.10 120j2010

•

! Juries Amendment (Reform) Attorney-General 27.07.10 10 of 2010 I

Bill 2010 17.08.10 12 oj 2010

Primary Industries Legislation Amendment Bill Agriculture 27.07.10 10 of 2010 2010 19.08.10 120j2010

Personal Property Securities (Statute Law Attorney-General 10.08.10 11 of 2010 Revision and Implementation) Bill 2010 25.08.10 12 oj 201 0

Private Security Amendment Bill 2010 Police and Emergency 10.08.10 11 of 2010 Services 30.08.10 120j2010

Marine Safety Bill 2010 Roads and Ports 31.08.10 12 of 2010 13.09.10 13 oj2010

Traditional Owner Settlement Bill 2010 Aboriginal Affairs 10.08.10 11 of 2010 28.08.10 13 oj2010

Transport Accident and Accident Compensation Finance, WorkCover and 10.08.10 11 of 2010 Legislation Amendment Bill 2010 the Transport 03.09.10 13 oj2010

Associations Incorporation Amendment Bill Consumer Affairs 08.06.10 8 of 2010

2010 16.09.10 140j2010

Education and Care Services National Law Bill Children and Early 14.09.10 13 of 2010 2010 Childhood Development 01.10.10 14 oj 201 0

, Justice Legislation Amendment (Victims of Attorney-General 13.04.10 5 of 2010

• Crime Assistance and Other Matters) Bill 2010 20.09.10 14 oj 2010

Justice Legislation Further Amendment Bill 2010 Attorney-General 31.08.10 12 of 2010 16.09.10 14 oj 201 0

•

Occupational Licensing National Law Bill 2010 Finance, WorkCover and 31.08.10 12 of 2010

the Transport 24.09.10 140j2010

I Plant Biosecurity Bill 2010 Agriculture 10.08.10 11 of 2010 27.09.10 140j2010

Transport Legislation Amendment (Compliance, I !~~:Portl Roads and 23.03.10 4 of 2010

Enforcement and Regulation) Bill 2010 28.09.10 140j2010

426


Outstanding correspondence

Crimes Legislation Amendment Act 2010 Attorney-General 23.03.10 4 of 2010

Drugs, Poisons and Controlled Substances Mr Peter Kavanagh MLC 25.05.10 7 of 2010 Amendment (Prohibition of Display and Sale of Bongs) Bill 2010

Civil Procedure Bill 2010 Attorney-General 27.07.10 10 of 2010

Fair Trading Amendment (Australian Consumer Consumer Affairs 31.08.10 12 of 2010 Law) Bill 2010

Judicial Commission of Victoria Bill 2010 Attorney-General 14.09.10 13 of 2010

427