Upload
others
View
4
Download
0
Embed Size (px)
Citation preview
Department of Justice and Community Safety
Regulation, Legal and Integrity Level 17
121 Exhibition Street
Melbourne Victoria 3000
OFFICIAL
Ms Bridget Noonan Clerk Legislative Assembly Parliament House Spring Street EAST MELBOURNE VIC 3002 By email: [email protected].
Dear Clerk The COVID-19 Omnibus (Emergency Measures) (Integrity Entities) Regulations 2020 (Regulations) were made by the Governor in Council on 19 May 2020. As required by section 15 of the Subordinate Legislation Act 1994 (SLA), I enclose copies of the following documents prepared with respect to the Regulations:
• the accompanying recommendation to the Governor in Council to make the Regulations;
• a certificate issued under section 13 of the SLA (including a copy of the certified Regulations);
• a human rights certificate issued under section 12A of the SLA; and
• a certificate certifying the Regulations compliance with subsection 4(3) of the COVID-19 Omnibus (Emergency Measures) Act 2020.
Under section 15(1) of the SLA, these documents must be laid before each House of Parliament on or before the sixth sitting day after notice of the making of the Regulations was published in the Government Gazette, which occurred on 19 May 2020. I would appreciate if you could please arrange to table the enclosed documents in the Legislative Assembly as required.
Yours sincerely
Allison Will Director
Hon Jill Hennessy MP
Attorney-General
Minister for Workplace Safety
Level 26, 121 Exhibition Street
Melbourne Victoria 3000
Telephone: (03) 8684 1111
DX: 210098
OFFICIAL
COVID-19 Omnibus (Emergency Measures) Act 2020
ATTORNEY-GENERAL’S OPINION FOR RECOMMENDING THE MAKING OF TEMPORARY
REGULATIONS
(Section 4)
COVID-19 Omnibus (Emergency Measures) (Integrity Entities) Regulations 2020
I, Hon Jill Hennessy MP, Attorney-General, and Minister responsible for making
recommendations to the Governor in Council for the making of regulations under section 4
of the COVID-19 Omnibus (Emergency Measures) Act 2020 (the Act) am of the opinion that
the proposed Regulations are consistent with any relevant directions made by an authorised
officer under Part 10 of the Public Health and Wellbeing Act 2008 in relation to the COVID-19
pandemic (section 4(3)(a)(ii) of the Act).
I am also of the opinion that the proposed Regulations are reasonable in managing or
responding to the COVID-19 pandemic in relation to the conduct or carrying out of a
proceeding, inquiry or investigation by an integrity entity (section 4(3)(b)(iii) of the Act), and
to protect the health, safety and welfare of persons in relation to the administration of
justice or law (section 4(3)(a)(i) of the Act).
Affected integrity entities are the Independent Broad-based Anti-corruption Commission
(IBAC), the Victorian Inspectorate (VI), the Ombudsman, the Information Commissioner and
the Chief Municipal Inspector (CMI).
I base this opinion on the following:
Requirements of section 4(3)(a)(ii) of the Act
Stay at Home Direction (No 6) made under section 200 of the Public Health and Wellbeing
Act 2008, dated 12 May 2020 (the Direction) requires everyone in Victoria to limit their
interactions with others by restricting the circumstances in which they may leave the
premises where they ordinarily reside and placing restrictions on gatherings. For example,
clause 8 (work and education) of the Direction allows a person to leave their home for work
but only if it is not reasonably practicable for the person to work from home. Clause 6
(essential goods and services) allows a person to leave home to obtain essential goods and
services from certain bodies, including from a government body. The proposed Regulations
Hon Jill Hennessy MP
Attorney-General
Minister for Workplace Safety
Level 26, 121 Exhibition Street
Melbourne Victoria 3000
Telephone: (03) 8684 1111
DX: 210098
OFFICIAL
will enable people to adhere to the Direction as being involved in an integrity entity
investigation is unlikely to be regarded as obtaining a ‘service’ under the Direction. In
addition, enabling integrity entities to conduct examinations and other proceedings by audio
visual or audio link will allow people to more easily comply with the Direction by enabling
them to stay at home while still fulfilling their legal obligation to appear before an integrity
entity.
Requirements of section 4(3)(b)(iii)
The proposed Regulations are reasonable in relation to the conduct or carrying out of a
proceeding, inquiry or investigation by an integrity entity. It is vital for integrity entities to be
able to continue to perform their functions during the COVID-19 pandemic, including
obtaining necessary information from documents, witnesses and others. It is also necessary
to enable integrity entities to provide and receive documents for inspection where they
might otherwise have to do so by physical attendance. The proposed Regulations will modify
processes to allow for investigations to continue while limiting the physical contact between
people, including by:
• allowing integrity entities to serve witness summonses and other documents by electronic means or registered post;
• allowing people to attend before an integrity entity by audio or audio visual link;
• allowing witnesses to take an oath or affirmation before an integrity entity by audio visual link;
• allowing Information Commissioner to receive certain documents for inspection by secure electronic means;
• extending the deadline for the VI to inspect and report on Victoria Police and IBAC telecommunications interception records to limit the number of people in physical attendance to inspect the records; and
• allowing the CMI to provide certain documents for inspection by permitted persons.
A number of safeguards will be in place to support these changes. For example, in relation to
electronic service of documents, people will be required to confirm receipt of the document.
An integrity entity that receives a document by secure electronic means for inspection will
be required to destroy the document when the inspection is completed. In relation to
attendance by audio or audio visual means, a person will still be able to fully participate in
the examination and have their legal representative present (also by electronic means).
Integrity entities will be required to make reasonable modifications to the process for taking
an oath or affirmation by audio visual link for a person who has a disability.
Hon Jill Hennessy MP
Attorney-General
Minister for Workplace Safety
Level 26, 121 Exhibition Street
Melbourne Victoria 3000
Telephone: (03) 8684 1111
DX: 210098
OFFICIAL
Requirements of section 4(3)(b)(i)
As set out above, the proposed Regulations are also reasonable in managing or responding to
the COVID-19 pandemic to protect the health, safety or welfare of persons in relation to the
administration of justice or law as they encourage people to limit their physical interaction
with others and limit activities outside of their residential premises, which are key COVID-19
transmission reduction measures.
Dated: 18 May 2020
Hon Jill Hennessy MP Attorney-General
Hon Jill Hennessy MP
Attorney-General
Minister for Workplace Safety
Level 26, 121 Exhibition Street
Melbourne Victoria 3000
Telephone: (03) 8684 1111
DX: 210098
OFFICIAL
Subordinate Legislation Act 1994
HUMAN RIGHTS CERTIFICATE
(Section 12A)
COVID-19 Omnibus (Emergency Measures) (Integrity Entities) Regulations 2020
I, the Hon Jill Hennessy MP, Attorney-General, and Minister responsible for making
recommendations to the Governor in Council for the making of regulations under section 4
of the COVID-19 Omnibus (Emergency Measures) Act 2020 certify that, in my opinion:
the COVID-19 Omnibus (Emergency Measures) (Integrity Entities) Regulations 2020 (the
proposed Regulations) are compatible with human rights as set out in the Charter of Human
Rights and Responsibilities Act 2006.
Overview
The Regulations make temporary modifications to the application of certain provisions of the
following Acts and Statutory Rules to enable integrity entities to perform their functions
during the COVID-19 pandemic:
• Freedom of Information Act 1982;
• Independent Broad-based Anti-corruption Commission Act 2011;
• Local Government Act 1989;
• Oaths and Affirmations Act 2018;
• Ombudsman Act 1973;
• Privacy and Data Protection Act 2014;
• Telecommunications (Interception) (State Provisions) Act 1982; and
• Victorian Inspectorate Act 2011.
Hon Jill Hennessy MP
Attorney-General
Minister for Workplace Safety
Level 26, 121 Exhibition Street
Melbourne Victoria 3000
Telephone: (03) 8684 1111
DX: 210098
OFFICIAL
The objective of the Regulations is to address procedural issues faced by integrity entities
operating during the COVID-19 pandemic including:
• enabling personal service to be effected by alternative means;
• permitting inquiries and investigations (including administration of oaths and
affirmations) to proceed by audio-visual link; and
• making a range of reforms specific to individual entities relating to statutory time frames
and the production, inspection and provision of documents.
Human Rights Issues
These temporary amendments engage the following rights under the Charter of Human
Rights and Responsibilities Act 2006 (the Charter): privacy and reputation (section 13) and
fair hearing (section 24).
While these rights may be engaged by the Regulations, they are not considered to be limited.
The Regulations ensure that integrity entities may deliver their critical services during the
COVID-19 pandemic, consistently with any relevant directions or advice given or made under
the Public Health and Wellbeing Act 2008.
Current public health advice is to practice social distancing and to minimise face-to-face
interactions to reduce the risk of transmission of this potentially fatal virus and ensure that
health services are not overwhelmed, ultimately protecting the right to life in section 9 of
the Charter.
Right to Privacy and Reputation
Service of documents on individuals by electronic means or registered post
The Regulations will modify the:
• Freedom of Information Act 1982
• Independent Broad-based Anti-corruption Commission Act 2011;
• Local Government Act 1989;
• Ombudsman Act 1973; and
• Victorian Inspectorate Act 2011
Hon Jill Hennessy MP
Attorney-General
Minister for Workplace Safety
Level 26, 121 Exhibition Street
Melbourne Victoria 3000
Telephone: (03) 8684 1111
DX: 210098
OFFICIAL
to allow documents, including witness summons or confidentiality notices, to be served by
electronic means or registered post instead of being served personally. By virtue of the
Deputy Chief Medical Officer’s Stay at Home Directions (No.6), much of the population is
working from home and are with their families. Service by registered post or email enhances
the right to privacy as it lessens the risk of others witnessing the service of a summons or
confidentiality notice; it averts the confronting nature of personal service; and is more timely
and less resource intensive.
Powers of the Chief Municipal Inspector (CMI)
The Regulations will modify section 223B(5) of the Local Government Act 1989 to permit the
CMI to provide certain documents in the CMI’s possession electronically, for inspection by
permitted persons. The right to privacy and reputation may be engaged as such documents,
which relate to a CMI investigation, may contain an individuals’ personal details and/or
potential misconduct information.
Permitting documents to be received electronically may increase the risk of wider
distribution of that information. However, the Regulations include measures to guard against
this risk. Therefore, whilst the right may be engaged, it is not considered limited. This is
because:
• the Regulations do not alter the existing precondition that only a person who would
otherwise have been entitled to review the document, before it was produced to the
CMI, may be permitted to inspect that document;
• the document must be provided by secure electronic means, minimising the risk of
privacy breach; and
• the Regulations require that the permitted person must destroy the document
following its inspection.
Special requirements for producing exempt documents to the Information Commissioner
The Regulations will modify section 63D of the Freedom of Information Act 1982 to permit
the Information Commissioner to request the inspection of certain documents over which an
exception has been claimed, via secure electronic means. The right to privacy and reputation
may be engaged as the exempt documents are Cabinet in Confidence documents; documents
Hon Jill Hennessy MP
Attorney-General
Minister for Workplace Safety
Level 26, 121 Exhibition Street
Melbourne Victoria 3000
Telephone: (03) 8684 1111
DX: 210098
OFFICIAL
affecting national security, defence or international relations; law enforcement documents
and documents relating to IBAC.
Permitting such documents to be received electronically may increase the risk of wider
distribution of that information. However, the Regulations include measures to guard against
this risk. Therefore, while the right may be engaged, it is not considered limited. This is
because:
• the Regulations specify that such information may be requested by and provided for
inspection to Victoria’s Information Commissioner only;
• the information must be shared by secure electronic means; and
• the Information Commissioner is not entitled to continued possession of such
information and is required to destroy the inspected document and notify the
relevant agency that the document has been destroyed.
Victorian Inspectorate inspection of Victoria Police and IBAC records
The Regulations will modify sections 11, 12, 14 and 15 of the Telecommunications
(Interception) (State Provisions) Act 1988 to extend the statutory deadline for the Victorian
Inspectorate to inspect and report to the relevant Ministers, regarding Victoria Police and
IBAC telecommunication interception records. The right to privacy and reputation may be
engaged, as the Victorian Inspectorate uses this inspection process to ensure agencies are
complying with their responsibilities in relation to telecommunication interception. Such
interceptions are a significant limitation of individuals’ privacy and must be managed
securely and appropriately oversighted.
Whilst the right may be engaged, it is not considered limited. The Regulations will extend the
timeline for the Victorian Inspectorate’s inspection and reporting, rather than removing the
requirement entirely. The Victorian Inspectorate will still be required to complete its
inspection and reporting obligations as soon as practicable, subject to public health
constraints.
Right to a Fair Hearing
Allow examinations of persons and oaths and affirmations to be undertaken by Audio Visual
Link
Hon Jill Hennessy MP
Attorney-General
Minister for Workplace Safety
Level 26, 121 Exhibition Street
Melbourne Victoria 3000
Telephone: (03) 8684 1111
DX: 210098
OFFICIAL
The Regulations will modify the:
• Freedom of Information Act 1982;
• Independent Broad-based Anti-corruption Commission Act 2011;
• Local Government Act 1989;
• Ombudsman Act 1973; and
• Victorian Inspectorate Act 2011
to allow examinations and oaths and affirmation to be undertaken by Audio Visual Link.
The right to a fair hearing may be engaged by the use of Audio Visual Link during
examinations by integrity entities as it will alter the method by which a person attends an
examination and answers questions under an oath or affirmation. The Regulations also
amend the operation of sections 9 and 15 of the Oaths and Affirmations Act 2018 to permit
IBAC, the Victorian Ombudsman, the Victorian Inspectorate, the Information Commissioner
and the Chief Municipal Inspector to administer oaths and affirmations by Audio Visual Link.
This amendment is necessary to allow integrity entities to conduct examinations by Audio
Visual Link.
If an examination proceeds using Audio Visual Link, a person can still fully participate in the
examination, be heard by the integrity entity and have their legal representative represent. A
person will have a right of complaint to the Victorian Inspectorate regarding IBAC’s, the
Ombudsman's and Information Commissioner’s adherence to procedural fairness and use of
coercive powers. In regard to examinations by the Chief Municipal Inspector, a person is able
to complain to the Ombudsman. If examined by IBAC, the Ombudsman or the Information
Commissioner, a person will also receive a transcript of their examination to review.
This right is also balanced by the fact that integrity entities may still conduct examinations in
person if necessary. Specifically, section 15 of the Oaths and Affirmations Act 2018 allows
the entities to make reasonable modifications via Audio Visual Link for a person who has a
disability or cannot say the oath or affirmation aloud.
In addition, any limitation of the right to a fair hearing is justified as it promotes compliance
with Stay at Home Direction (No 6). Examinations by Audio Visual Link will reduce the
number of people who are required to attend the integrity entities’ buildings. They will assist
Hon Jill Hennessy MP
Attorney-General
Minister for Workplace Safety
Level 26, 121 Exhibition Street
Melbourne Victoria 3000
Telephone: (03) 8684 1111
DX: 210098
OFFICIAL
entities to safely continue with investigations while practicing social distancing and minimise
face-to-face interactions.
The Regulations further modify the primary Acts to allow documents, including witness
summons or confidentiality notices, to be served by electronic means or registered post
instead of being served personally. The changes to process of serving documents may limit a
person’s right to a fair hearing as there is less certainty that a person has received the
documents in absence of personal service. There are penalties associated with non-
compliance with a witness summons or confidentiality notice without reasonable excuse.
To the extent that they limit to the right to a fair hearing, such limitations are reasonable and justifiable (Charter Act, section 7(2)), noting:
• If a person does not comply with a witness summons or confidentiality notice due to
not receiving it, the person would have a reasonable excuse for non-compliance.
• They are procedural amendments only, and would not create or increase the integrity
entity’s coercive powers or alter the existing oversight by the Victorian Inspectorate.
• Integrity entities are required to provide copies of any summons or confidentiality
notices to the Victorian Inspectorate within three days of issuance.
• A statement of rights and obligations is provided with all summonses, outlining a
person’s right to complain to the Victorian Inspectorate.
• Registered post and email can be tracked and integrity entities are required to
confirm receipt of documents.
• In practice, integrity entities can confirm in advance relevant details for service and
receipt of service.
• The changes are necessary to enable the integrity entities to effectively gather
information to perform their investigative functions during the COVID-19 pandemic.
The changes promote compliance with Stay at Home Direction (No.6), social distancing and protect public health.
Dated: 18 May 2020
Hon Jill Hennessy MP Attorney-General
Hon Jill Hennessy MP
Attorney-General
Minister for Workplace Safety
Level 26, 121 Exhibition Street
Melbourne Victoria 3000
Telephone: (03) 8684 1111
DX: 210098
OFFICIAL
COVID-19 Omnibus (Emergency Measures) Act 2020
COVID-19 Omnibus (Emergency Measures) (Integrity Entities) Regulations 2020
RECOMMENDATION
It is recommended to the Governor in Council that, under section 4 of the COVID-19
Omnibus (Emergency Measures) Act 2020 (the Act), the COVID-19 Omnibus (Emergency
Measures) (Integrity Entities) Regulations 2020 be made.
Advice from the Chief Parliamentary Counsel is submitted as required by section 13 of the
Subordinate Legislation Act 1994.
Under section 6 of the Act, sections 6 and 7 of the Subordinate Legislation Act 1994 do not
apply to the making of regulations under section 4 of the Act. Consequently, no regulatory
impact statement or certificate of consultation in respect of these Regulations has been
prepared.
Pursuant to section 4(3) of the Act, I have attached a document stating that in my opinion:
these Regulations are consistent with any relevant directions given or made under the Public
Health and Wellbeing Act 2008 in relation to the COVID-19 pandemic, and are reasonable in
managing or responding to the COVID-19 pandemic to protect the health, safety or welfare
of persons in relation to the administration of justice or law.
Attached are letters of consent from the relevant integrity entities and integrity entity heads,
as required by section 9 of the Act.
I have issued a human rights certificate under section 12A of the Subordinate Legislation Act
1994.
Dated: 18 May 2020
Hon Jill Hennessy MP Attorney-General
PARLIAMENTARY COUNSEL VICTORIA
Your Reference:
Our Reference: 20-063 : CS/JD
Parliamentary Counsel's Chambers Level 2, I Macarthur Street, .Melbourne, VIC 3002
DX 210753 Tel: (03) 9651 2103 Fax : (03) 9651 2107
Website: w1'IW.legis/ation. vie.go v.au
SUBORDINATE LEGISLATION ACT 1994 SECTION 13 CERTIFICATE
Proposed statutory rule : COVID-19 Omnibus (Emergency Measures) (Integrity Entities) Regulations 2020
Authorising Act : COVID-19 Omnibus (Emergency Measures) Act 2020
Date of print of proposed statutory rule : 18 May 2020
A proposed statutory rule that is to be made by, or with the com,ent or approval of, the Govemor in Council must be submitted to the Chief Parliamentary Counsel for the issue of a certificate by the Chief Parliamentary Counsel specifying whether the proposed statutory rule -
NOTED 8Y THE GOVERNO~ IN COUNCIL
1 9 MAY 2020 CLEffK OF THE EXECUTtvc- CO
C UNC!L
(a) appears to be within the powers conferred by the authorising Act;
(a) so appears;
(h) appears without clear and express (b) authority being conferred by the authorising Act-
(i) to have a retrospective effect; or
(ii) to impose a tax, fee, fine, imprisonment or other penalty; or
(iii) to sh(ft the legal burden of proof to a person accused of an offence; or
(iv) to sub-delegate powers delegated by the authorising Act;
(i) does not so appear;
(ii) does not so appear;
(iii) does not so appear;
(iv) does not so appear;
(c) appears to be consistent with the (c) so appears; general objectives of the authorising Act;
(d) appears to be consistent with and to (d) so appears; achieve the objectives set out in the
(e)
(I)
(g)
proposed statutory rule and, if the proposed statutory rule is to amend an existing statutory rule, appears to be consistent with the objectives set out in the existing statutory rule;
appears to be inconsistent with principles of justice and fairness;
appears significantly or substantially to overlap or conflict with any other statutory rule or legislation;
is expressed unambiguously possible.
as clearly and as is reasonably
(e) does not so appear;
(I) does not so appear;
(g) is so expressed.
NOTED SY THE GOVERNOR IN COUNCIL
1 9 MAY 2020
LERK OF THE EXECUTIVE COUNCIL
~ ~ MARINA FARNAN
Chief Parliamentary Counsel
Date: 18 May 2020
This ce11ificate relates to the circumstances as at the date of the ce1tificate.