alert digest no 17 of 2016, 6 december 2016 · i table of contents page nos. alert digest no. 17 of...

crutiny of Actsand Regulations Committee

58th Parliament

No. 17 of 2016

Tuesday, 6 December 2016on the following Bills

Administra on and Probate andOther Acts Amendment

(Succession and Related Ma ers)Bill 2016

Climate Change Bill 2016

Consumer Acts Amendment Bill 2016

Heritage Bill 2016

Resources Legisla on Amendment(Fracking Ban) Bill 2016

Urban Renewal Authority VictoriaAmendment (Development Victoria)

Bill 2016

Wrongs Amendment(Organisa onal Child Abuse)

Bill 2016

The func ons of the Scru ny of Acts and Regula ons Commi ee are –(a) to consider any Bill introduced into the Council or the Assembly and to report to the Parliament as to whether the

Bill directly or indirectly –(i) trespasses unduly upon rights or freedoms;(ii) makes rights, freedoms or obliga ons dependent upon insufficiently defined administra ve powers;(iii) makes rights, freedoms or obliga ons dependent upon non-reviewable administra ve decisions;(iv) unduly requires or authorises acts or prac ces that may have an adverse effect on personal privacy

within the meaning of the Privacy and Data Protec on Act 2014;(v) unduly requires or authorises acts or prac ces that may have an adverse effect on privacy of health

informa on within the meaning of the Health Records Act 2001;(vi) inappropriately delegates legisla ve power;(vii) insufficiently subjects the exercise of legisla ve power to parliamentary scru ny;(viii) is incompa ble with the human rights set out in the Charter of Human Rights and Responsibili es;

(b) to consider any Bill introduced into the Council or the Assembly and to report to the Parliament –(i) as to whether the Bill directly or indirectly repeals, alters or varies sec on 85 of the Cons tu on Act 1975,

or raises an issue as to the jurisdic on of the Supreme Court;(ii) if a Bill repeals, alters or varies sec on 85 of the Cons tu on Act 1975, whether this is in all the

circumstances appropriate and desirable;(iii) if a Bill does not repeal, alter or vary sec on 85 of the Cons tu on Act 1975, but an issue is raised as to the

jurisdic on of the Supreme Court, as to the full implica ons of that issue;

Parliamentary Commi ees Act 2003, sec on 17

Terms of Reference - Scrutiny of Bills

The Committee

Commi ee StaffMr Nathan Bunt, Senior Legal AdviserMs Helen Mason, Legal Adviser - Regula onsMr Simon Dinsbergs, Business Support OfficerMs Sonya Caruana, Office ManagerProfessor Jeremy Gans, Human Rights AdviserMs Sarala Fitzgerald, Human Rights Adviser

Parliament House, Spring StreetMelbourne Victoria 3002

Telephone: (03) 8682 2895Facsimilie: (03) 8682 2858Email: [email protected]: www.parliament.vic.gov.au/sarc

Mr Josh Bull MLAMember for Sunbury

Hon. Richard Dalla-Riva MLCDeputy Chairperson

Member for Eastern Metropolitan

Ms Lizzie Blandthorn MLAChairperson

Member for Pascoe Vale

Ms Melina Bath MLCMember for Eastern Region

Mr Steve Dimopoulos MLAMember for Oakleigh

Mr John Pesu o MLAMember for Hawthorn

Ms Sonya Kilkenny MLAMember for Carrum

i

T ab l e o f C on t e n t s

Page Nos.

Alert Digest No. 17 of 2016

Administration and Probate and Other Acts Amendment (Succession and Related Matters) Bill 2016 1

Climate Change Bill 2016 3

Consumer Acts Amendment Bill 2016 4

Resources Legislation Amendment (Fracking Ban) Bill 2016 7

Urban Renewal Authority Victoria Amendment (Development Victoria) Bill 2016 10

Wrongs Amendment (Organisational Child Abuse) Bill 2016 12

Appendices

1 – Ministerial responses to Committee correspondence 15

i. Heritage Bill 2016 15

2 – Index of Bills in 2016 21

3 – Committee Comments classified by Terms of Reference 23

4 – Ministerial Correspondence 2016 25

5 – Statutory Rules and Legislative Instruments considered 29

Parliament of Victoria, Australia

Scrutiny of Acts and Regulations Committee

Reports to Parliament Alert Digests 2016

ISBN 978‐1‐925345‐26‐1

ISSN 1440‐2939

Ordered to be Published

By Authority. Government Printer for the State of Victoria. Parliamentary Paper No. 194, Session 2014‐2016

ii

Useful information

Role of the Committee

The Scrutiny of Acts and Regulations Committee is an all‐party Joint House Committee, which examines all Bills and subordinate legislation (regulations) introduced or tabled in the Parliament. The Committee does not make any comments on the policy merits of the legislation. The Committee’s terms of reference contain principles of scrutiny that enable it to operate in the best traditions of non‐partisan legislative scrutiny. These traditions have been developed since the first Australian scrutiny of Bills committee of the Australian Senate commenced scrutiny of Bills in 1982. They are precedents and traditions followed by all Australian scrutiny committees. Non‐policy scrutiny within its terms of reference allows the Committee to alert the Parliament to the use of certain legislative practices and allows the Parliament to consider whether these practices are necessary, appropriate or desirable in all the circumstances.

The Charter of Human Rights and Responsibilities Act 2006 provides that the Committee must consider any Bill introduced into Parliament and report to the Parliament whether the Bill is incompatible with human rights.

Interpretive use of Parliamentary Committee reports

Section 35 (b)(iv) of the Interpretation of Legislation Act 1984 provides –

In the interpretation of a provision of an Act or subordinate instrument consideration may be given to any matter or document that is relevant including, but not limited to, reports of Parliamentary Committees.

When may human rights be limited

Section 7 of the Charter provides –

Human rights – what they are and when they may be limited –

(2) A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including—

(a) the nature of the right; and

(b) the importance of the purpose of the limitation; and

(c) the nature and extent of the limitation; and

(d) the relationship between the limitation and its purpose; and

(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve

Glossary and Symbols

‘Assembly’ refers to the Legislative Assembly of the Victorian Parliament

‘Charter’ refers to the Victorian Charter of Human Rights and Responsibilities Act 2006

‘Council’ refers to the Legislative Council of the Victorian Parliament

‘DPP’ refers to the Director of Public Prosecutions for the State of Victoria

‘human rights’ refers to the rights set out in Part 2 of the Charter

‘IBAC’ refers to the Independent Broad‐based Anti‐corruption Commission

‘penalty units’ refers to the penalty unit fixed from time to time in accordance with the Monetary Units Act 2004 and published in the government gazette (as at 1 July 2016 one penalty unit equals $155.46 )

‘Statement of Compatibility’ refers to a statement made by a member introducing a Bill in either the Council or the Assembly as to whether the provisions in a Bill are compatible with Charter rights

‘VCAT’ refers to the Victorian Civil and Administrative Tribunal

[ ] denotes clause numbers in a Bill

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A l e r t D i g e s t No . 1 7 o f 2 0 1 6

Administration and Probate and Other Acts Amendment (Succession and Related Matters) Bill 2016

Introduced 22 November 2016 Second Reading Speech 23 November 2016 House Legislative Assembly Member introducing Bill Hon Martin Pakula MLA Minister responsible Hon Martin Pakula MLA Portfolio responsibility Attorney‐General

Purpose

The Bill would amend the Administration and Probate Act 1958, the Guardianship and Administration Act 1986 and the Powers of Attorney Act 2014 in relation to intestacy, executors’ fees and commissions and other matters.

Charter report

Property – Intestate without surviving close relatives – Estate passes to Crown

Summary: The effect of new section 70ZL is that, if a person dies without a will and with no surviving partners, descendants, parents, grandparents, siblings, aunts, uncles and first cousins, then the intestate’s property passes to the Crown. The Committee will write to the Attorney‐General seeking further information.

The Committee notes that clause 11, inserting a new section 70ZL, provides:

If no person is entitled to the estate of an intestate under this Part, the residuary estate—

(a) is taken to be property that has no owner; and

(b) passes to and belongs to the Crown.

New Part IA provides for the distribution of the estate of an intestate to the intestate’s partners, children (and their children and so forth), parents, grandparents, siblings, aunts, uncles and first cousins.

The effect of new section 70ZL is that, if a person dies without a will and with no surviving partners, descendants, parents, grandparents, siblings, aunts, uncles and first cousins, then the intestate’s property passes to the Crown.

The Committee observes that new section 70ZL may engage the Charter right of such an intestate’s next of kin to not be deprived of property other than in accordance with law.1 For example, the effect of new section 70L may be that property that would otherwise have passed to an intestate’s first cousin’s children will instead pass to the Crown.

1 Charter s. 20.


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The Committee also observes that new section 70L may engage the Charter right of Aboriginal persons to ‘maintain their kinship ties’. The Committee notes that many Aboriginal persons die intestate and that indigenous kinship ties typically extend beyond first cousins.

The Statement of Compatibility does not address new section 70ZL. The Committee notes that all other Australian jurisdictions have laws to similar effect to new section 70ZL. However, New South Wales’s and Tasmania’s laws provide that:2

If the State is entitled to an intestate estate…, the Minister may, on application for a waiver of the State’s rights, waive the State’s rights in whole or part in favour of –

(a) dependants of the intestate; or

(b) any persons who have, in the Minister’s opinion, a just or moral claim on the intestate; or

(c) any organisation or person for whom the intestate might reasonably be expected to have made provision; or

(d) the trustees for any person or organisation mentioned in paragraph (a), (b) or (c); or

(e) any other organisation or person.

and also provide that:3

The personal representative of an Indigenous intestate, or a person claiming to be entitled to share in an intestate estate under the laws, customs, traditions and practices of the Indigenous community or group to which an Indigenous intestate belonged, may apply to the Court for an order for distribution of the intestate estate under this Part.

By contrast, existing s. 58(3) of the Financial Management Act 1994 provides only for the Minister for Finance to transfer unclaimed property:

if the Crown became entitled to the property as the result of the death of any person—

(i) to any person whether related to the deceased or not who was dependent upon the deceased; or

(ii) to any person for whom in the opinion of the Minister the deceased might reasonably have been expected to make provision

The Committee notes that this provision does not provide for transfers outside of these two categories (e.g. to persons who have a ‘just or moral claim on the intestate’, or to ‘any other organisation’) or for distribution in accordance with indigenous laws, customs, traditions and practices.

The Committee will write to the Attorney‐General seeking further information as to the compatibility of new section 70ZL, to the extent that it provides for the property of a person who dies without a will or surviving close relatives to pass to the Crown, with the Charter rights not be deprived of property other than in accordance with law and of Aboriginal persons to maintain their kinship ties.

The Committee makes no further comment.

2 Intestacy Act 2010 (Tas), s. 38. See also Succession Act 2006 (NSW), s. 137. 3 Intestacy Act 2010 (Tas), s. 34. See also Succession Act 2006 (NSW), s. 133.


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Climate Change Bill 2016

Introduced 22 November 2016 Second Reading Speech 23 November 2016 House Legislative Assembly Member introducing Bill Hon Lily D’Ambrosio MLA Minister responsible Hon Lily D’Ambrosio MLA Portfolio responsibility Minister for Energy, Environment and Climate Change

Purpose

The Bill would repeal and re‐enact the Climate Change Act 2010, with amendments, to give effect to changes arising from an independent review of the Climate Change Act 2010, which was tabled in parliament in February 2016. The Bill would:

establish long‐term and interim greenhouse emissions reduction targets

facilitate consideration of climate change in government decision‐making

set policy objectives and guiding principles to inform decision‐making

provide for strategic planning for climate change

creates greater accountability through information collection and reporting

provides a framework for carbon sequestration activities in relation to private and Crown land

makes a consequential amendment to the Environment Protection Act 1970.

Charter report

The Climate Change Bill 2016 is compatible with the rights set out in the Charter of Human Rights and Responsibilities.



4

Consumer Acts Amendment Bill 2016

Introduced 22 November 2016 Second Reading Speech 23 November 2016 House Legislative Assembly Member introducing Bill Hon Marlene Kairouz MLA Minister responsible Hon Marlene Kairouz MLA Portfolio responsibility Minister for Consumer Affairs, Gaming and Liquor Regulation

Purpose

The Bill would amend:

the Associations Incorporation Reform Act 2012 to enhance inspectorial powers under the Act

the Conveyancers Act 2006 to insert a requirement that a person must not, without reasonable excuse, refuse or fail to comply with a requirement of an inspector or the director of Consumer Affairs under Part 8 of that act

the Motor Car Traders Act 1986 to enable a licensed motor car trader to sell a motor vehicle subject to a security interest registered in favour of the sheriff of Victoria where the trader has been engaged by the sheriff to sell that vehicle, notwithstanding the registration of any other security interest subsequent to that of the sheriff

the Sale of Land Act 1962 to abrogate any pre‐existing right based on the Supreme Court decision in Tan v Russell (No.93 of 2016), for a vendor to commence action against a purchaser under a contract for sale of land.4

Charter report

Self‐Incrimination – Compelled provision of information or assistance (i.e. computer passwords) – person must comply even where compliance may result in the provision of incriminating information

Summary: Clause 11 of the Bill inserts a new section 169A that allows for the issue of a warrant requiring a person to provide information or assistance to allow an inspector to access information held in a computer or other device. A warrant may be issued to a person alleged to have contravened the Act or the regulations. Clause 14 of the Bill inserts a new section 177(3) which provides that it is not a reasonable excuse to fail to provide information under that warrant on the basis that the provision of information or assistance would tend to incriminate that person. The Committee will refer to Parliament the question of whether these provisions are a reasonable limit on the Charter’s rights against compelled self‐incrimination.

The new section 169A would provide that if a magistrate is satisfied that there are reasonable grounds to believe that there is digital or electronic information connected with a contravention of the Act or the regulations a warrant may be issued to authorise an inspector to require a person to provide any information or assistance that is reasonable and necessary to allow the inspector or another person to

4 New section 31A of the Sale of Land Act 1962 (clause 21) will abrogate the right of any vendor to commence action

against a purchaser under a contract for sale of land in relation to the Supreme Court decision in Tan v Russell (No.93 of 2016), which concerned the procedure for the service of a cooling off notice. New subsection 31A(2) provides that this abrogation will not affect the rights of the parties in Tan v Russell itself or of parties who had already commenced proceedings prior to the commencement of clause 21.


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access and copy the information. Under the new section an inspector may make such a requirement of a person alleged to have contravened the Act or the regulations.

Clause 14 of the Bill inserts a new s 177(3) which provides:

Despite subsection (1), it is not a reasonable excuse for a natural person to refuse or fail to provide information or assistance that a person is required under section 169A to provide, if the provision of the information or assistance would tend to incriminate the person.

The Committee observes that the effect of new section 177(3) is that an inspector may require a suspect to provide passwords for certain devices where either the provision of the password or the data obtained may be evidence of that person’s offending. The Committee considers that clause 14 may limit a suspect’s Charter rights to a fair hearing in s 24, including the right against compelled self‐incrimination set out in Charter section 25(2)(k).

The Statement of Compatibility remarks:

Section 25(2)(k) of the charter provides that a person who has been charged with a criminal offence has the right not to be compelled to testify against him or herself or to confess guilt. It is also an aspect of the right to a fair trial protected by section 24 of the charter. This right under the charter is at least as broad as the privilege against self‐incrimination protected by the common law. It applies to protect a charged person against the admission in subsequent criminal proceedings of incriminatory material obtained under compulsion, regardless of whether the information was obtained prior to or subsequent to the charge being laid.

…

The bill does not limit section 25(2)(k), because the person required to assist an inspector is not a person who has been charged with a criminal offence. The execution of the warrant occurs before any action for a contravention of the act or regulations is taken. In addition, the person is not being required to testify against himself or herself because they are not giving evidence in court. Finally, the person is not being required to confess guilt. While the information the person provides may enable an inspector to obtain evidence that incriminates the person, the giving of that information, such as a computer password or similar, is not in itself a confession of guilt.

The Committee notes that the Supreme Court of Victoria has held that coercive powers requiring suspects to supply incriminating computer encryption keys (in that case, ones applied by the Chief Examiner, supervised by the Supreme Court and used to investigate organised crime offences) are not reasonable limits on the Charter’s rights against self‐incrimination unless any evidence discovered as a result (and not otherwise discoverable) is inadmissible in any future prosecution of the person.5 The legislation in that case did not relate to compelled confessions of guilt, but to the requirement to provide incriminating information, similar to this provision.

The Committee notes that England’s Court of Appeal has held that both the making of an order requiring a suspect to divulge a password and the prosecution of a suspect for failing to do so are compatible with European fair hearing rights.6 By contrast North American courts have held that such powers are incompatible with rights against compelled self‐incrimination where the supply of passwords may be evidence of the person’s access to, or the existence of, incriminatory data,7 unless

5 Re an application under the Major Crime (Investigative Powers) Act 2004 [2009] VSC 381, [91]‐[92], [155]‐[156]. 6 R v S & A [2008] EWCA Crim 2177; Greater Manchester Police v Andrews [2011] EWHC 1966 (Admin), discussing s 49 of

the Regulation of Investigatory Powers Act 2000 (UK). 7 E.g. R. c. Boudreau‐Fontaine 2010 QCCA 1108, [46] [Quebec Court of Appeal]; In Re: Grand Jury Subpoena Duces Tecum

dated March 25, 2011; USA v Does, 670 F 3d 1355 (2012) [United States of Court of Appeals for the 11th Circuit].


6

the person’s access to, and the existence and nature of, the incriminatory data is already known to investigators.8

In this case the Statement of Compatibility notes that there is no use immunity in relation to the data that is obtained using the compelled information. Whilst the Statement does not accept that this limits the rights in section 25(2)(k), the Statement argues that any limit on rights is reasonable because:

There are no less restrictive means available to achieve the purpose of enabling regulators to have access to relevant digital or electronic information. To excuse the provision of information and assistance to enable access to digital or electronic records would significantly impede the regulator’s ability to investigate and enforce compliance of the scheme in the contemporary business environment.

The Committee refers to Parliament for its consideration the question of whether or not the new sections 169A and 177(3), by permitting a court to require a person to provide information or assistance where the information obtained as a result may be used in evidence to prove subsequent charges, is a reasonable limit on the Charter’s rights against compelled self‐incrimination.


8 E.g. Commonwealth v Gelfgatt (unreported, Massachusetts Supreme Judicial Court, 25th June 2014).


7

Resources Legislation Amendment (Fracking Ban) Bill 2016

Introduced 22 November 2016 Second Reading Speech 23 November 2016 House Legislative Assembly Member introducing Bill Hon Wade Noonan MLA Minister responsible Hon Wade Noonan MLA Portfolio responsibility Minister for Resources

Purpose

The Bill would amend the Minerals Resources (Sustainable Development) Act 1990 (the MRSDA) and the Petroleum Act 1998 (the Petroleum Act) to:

prevent the exploration and mining of coal seam gas

ban hydraulic fracturing

impose a moratorium on onshore petroleum production and exploration until 30 June 2020.

Content

Rights or freedoms – Presumption of innocence – Strict liability offences – Parliamentary Committees Act 2003, section 17(a)(i)

The bill inserts the following strict liability9 offences into the MRSDA:

new section 8AC (offence to carry out exploration for or mining of coal seam gas) [4]

new section 8AD (offence to carry out hydraulic fracturing) into the MRSDA [4]

new section 113A(3) to create an offence to fail to comply with a notice to provide specified details about the person’s discovery of coal seam gas [6]

The Bill also inserts a strict liability offence into the Petroleum Act: new section 16A (offence to carry out hydraulic fracturing). [9]

The Committee has previously recognised that strict liability offences may be justified where some element, such as the common law defences of necessity, duress or lawful authority may be in the peculiar knowledge of the defendant, where the offence is a regulatory offence involving issues connected with public health or safety and where the penalty of imprisonment is not involved.

The Committee notes the following explanation in the Statement of Compatibility:

Insofar as there is any limit upon the right to be presumed innocent, it is reasonable and justifiable for the purposes of section 7(2) of the charter. The offences apply to resource industry participants, who understand that they may only undertake minerals and petroleum exploration and development as authorised and in accordance with the legislation. Furthermore, the offences are consistent with other strict liability offences in the MRSDA and the Petroleum Act. The offences have lower penalties (200 penalty units in clauses 4 and 9 of

9 An offence is one of strict liability where it provides for people to be punished for doing something, or failing to do

something, whether or not they have a guilty intent. Someone is held to be legally liable for their conduct irrespective of their intent. A person charged with a strict liability offence has recourse to the common law defence of mistake of fact.


8

the bill and 50 penalty units in clause 6 of the bill) than would normally apply where a higher burden of proof is required.

The Committee is satisfied that the strict liability offences contained in the bill do not trespass unduly on rights or freedoms.

Retrospective application – Future application based on past events — Whether retrospective application adversely impacts person

Part 2 of the Bill (clause 7) contains amendments to the MRSDA regarding State liability:

new section 121A(2) provides that the State is not liable for any loss, damage or injury resulting or arising from any licence or work plan refusal, imposition or variation made on or after 24 August 2012

new section 121A(3) similarly provides that the State is not liable for a decision under the amended Act not being made in relation to certain licence and work plan applications, whether such loss, damage or injury is incurred before, on or after the commencement of the section.

(emphasis added)

Part 3 of the Bill (clause 11) contains amendments to the Petroleum Act regarding State liability:

new section 251A(2) provides that the State is not liable for any loss, damage or injury resulting or arising from any refusal, suspension, variation or extension made on or after 24 August 2012

new section 251A(3) similarly provides that the State is not liable for a decision under the amended Act not being made in relation to a relevant authority or petroleum operation or for any consent that is deemed to have been given under the amended Act on or after 24 August 2012, whether such loss, damage or injury is incurred before, on or after the commencement of the section.

(emphasis added)

The Committee notes that new sections 121A and 251A operate retrospectively.

The Committee notes the following statement in the Second Reading Speech:

The bill also amends both the Petroleum Act and the Mineral Resources (Sustainable Development) Act to state that the State of Victoria is not liable in any way for any loss, damage or injury whatsoever resulting directly or indirectly from the proposed amendments or from measures under a policy moratorium that commenced on 24 August 2012.

However, the Committee notes that there is no explanation as to whether any person may be adversely affected by the retrospective application of clauses 7 or 11.

The Committee’s Practice Note provides that where a Bill contains such a provision:

…the Committee would expect that the Parliament will be provided with an explanation why the provision is desirable or necessary.

The explanation should include the reason why a specific retrospective date is chosen and whether any person may be adversely affected by retrospective application…

On the available material, the Committee is unable to conclude whether any person may be adversely affected by the retrospective provisions. The Committee will therefore write to the Minister to seek clarification on this point.


9

Charter report

The Resources Legislation Amendment (Fracking Ban) Bill 2016 is compatible with the rights set out in the Charter of Human Rights and Responsibilities.



10

Urban Renewal Authority Victoria Amendment (Development Victoria) Bill 2016

Introduced 22 November 2016 Second Reading Speech 23 November 2016 House Legislative Assembly Member introducing Bill Hon Jacinta Allan MLA Minister responsible Hon Jacinta Allan MLA Portfolio responsibility Minister for Major Projects

Purpose

The Bill would amend the Urban Renewal Authority Victoria Act 2003 (the Principal Act). It has the following main purposes:

to abolish the Urban Renewal Authority Victoria and establish Development Victoria as its legal successor

to provide Development Victoria with increased functions and to introduce an additional criteria for appointment of members to the Board of Development Victoria (i.e., skills, experience or knowledge relating to public policy)

to establish a process for the transfer of certain projects under the Project Development and Construction Management Act 1994 to Development Victoria

to amend the title and purposes of the Principal Act (the new title of the Principal Act would be the Development Victoria Act 2003). The new main purposes of Development Victoria under the amended Principal Act would include:

o to carry out, manage, or coordinate property development and capital works projects in relation to Crown land or other public land

o the provision of technical and commercial advice to government departments and public statutory bodies in relation to those property development and capital works projects

o to undertake or complete specified projects, including the development of the Docklands area

o to undertake or complete declared projects.

Content

Delegation of legislative power – Delayed commencement — Whether justified

Clause 2 of the Bill states that the Act would come into operation on a date to be proclaimed, with a default commencement date of 30 November 2017, which is more than 12 months after the date of the Bill’s introduction.

The Committee notes that there is no explanation for the possible delayed commencement of the Bill in the Explanatory Memorandum or Second Reading Speech.

Paragraph A (iii) of the Committee’s Practice Note provides that where a Bill (or part of a Bill) is subject to delayed commencement (i.e., more than 12 months after the Bill’s introduction) or to commencement by proclamation, the Committee expects Parliament to be provided with an explanation as to why this is necessary or desirable.


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The Committee will write to the Minister to bring paragraph A (iii) of the Practice Note to the Minister’s attention and to request further information as to the reasons for the possible delayed commencement date.

Charter report

The Urban Renewal Authority Victoria Amendment (Development Victoria) Bill 2016 is compatible with the rights set out in the Charter of Human Rights and Responsibilities.



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Wrongs Amendment (Organisational Child Abuse) Bill 2016

Introduced 22 November 2016 Second Reading Speech 23 November 2016 House Legislative Assembly Member introducing Bill Hon Martin Pakula MLA Minister responsible Hon Martin Pakula MLA Portfolio responsibility Attorney‐General

Purpose

The Bill would amend the Wrongs Act 1958 to impose a legal duty of care on organisations that exercise care, supervision or authority over children to prevent the physical or sexual abuse of those children by individuals associated with the organisation (new Part XIII, comprising new sections 88 to 93). [3]

The Bill would also make consequential amendments to the Victoria Police Act 2013. [4]

Charter report

Protection of children – Statutory duty to prevent organisational child abuse – Exemption for schools whose students are employed in workplace learning

Summary: The effect of new section 89(3) may be that schools do not have a duty to prevent the abuse of students employed in workplace learning. The Committee will write to the Attorney‐General seeking further information.

The Committee notes that clause 3, inserting a new section 91, provides that a relevant organisation owes a ‘duty of care’ to prevent child abuse by an ‘individual associated with the organisation while the child is under the care, supervision or authority of the relevant organisation.’ Clause 3 also provides that:

if the relevant organisation has delegated, by means of contract or otherwise, the care, supervision or authority over the child to whom the claim relates to any organisation’, ‘an individual association with an organisation… includes but is not limited to an individual… in relation to the delegator organisation or the delegate organisation.

However, new section 89(3) provides that new section 91 is ‘subject to section 5.4.10 of the Education and Training Reform Act 2006’. That existing section provides that:

(1) A school or the principal or a teacher of a school does not have and is not to be deemed to have a duty relating to the care or control of a student of the school while that student is employed—

(a) under a work experience arrangement or a structured workplace learning arrangement; or

(b) as an apprentice under a training contract under Part 5.5 if the training for the student under that contract has been approved or endorsed by the principal of the school.

(2) An action does not lie against a school or the principal or a teacher of a school because of a breach of a duty referred to in subsection (1).

The Committee observes that the effect of new section 89(3) may be that schools do not have a duty to prevent the abuse of students employed in workplace learning.


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The Statement of Compatibility remarks:

[T]he bill creates a clear legal obligation for organisations with care, supervision or authority of children to reasonably ensure the safety of children who come into contact with their associated persons. Specifically, an organisation must take reasonable precautions to prevent the sexual abuse and/or physical abuse of a child in its care, supervision or authority, by an individual associated with that organisation. The bill supports the right of protection of children under section 17(2) of the charter.

However, the Statement of Compatibility does not address new section 89(3).

The Committee will write to the Attorney‐General seeking further information as to the compatibility of new section 89(3), to the extent that it provides that schools do not have a duty to prevent the abuse of students employed in workplace learning, with the Charter right of every child to such protection as is in his or her best interests and is needed by him or her by reason of being a child.



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Append i x 1 M i n i s t e r i a l r e s p o n s e s t o C omm i t t e e

c o r r e s p o n d e n c e

The Committee received Ministerial responses in relation to its correspondence on the Bills listed below.

The responses are reproduced in this appendix – please refer to Appendix 4 for additional information.

i. Heritage Bill 2016


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21

Append i x 2 I n d e x o f B i l l s i n 2 0 1 6

Alert Digest Nos.

Access to Medicinal Cannabis Bill 2015 1, 3 Administration and Probate and Other Acts Amendment (Succession and Related Matters)

Bill 2016 17 Alpine Resorts Legislation Amendment Bill 2016 13 Appropriation (2016‐2017) Bill 2016 6 Appropriation (Parliament 2016‐2017) Bill 2016 6 Assisted Reproductive Treatment Amendment Bill 2015 1 Bail Amendment Bill 2015 1 Births, Deaths and Marriages Registration Amendment Bill 2016 12, 13 Building Legislation Amendment (Consumer Protection) Bill 2015 1 Children Legislation Amendment Bill 2016 2 Child Wellbeing and Safety Amendment (Oversight and Enforcement of Child Safe Standards)

Bill 2016 13 Climate Change Bill 2016 17 Compensation Legislation Amendment Bill 2016 14 Confiscation and Other Matters Amendment Bill 2016 4, 5 Consumer Acts Amendment Bill 2016 17 Corrections Amendment (No body, no parole) Bill 2016 3, 4 Corrections Legislation Amendment Bill 2016 12 Creative Victoria Bill 2016 16 Crimes Amendment (Carjacking and Home Invasion) Bill 2016 12, 14 Crimes Amendment (Carjacking) Bill 2016 11 Crimes Amendment (Sexual Offences) Bill 2016 9, 10 Crimes Legislation Amendment Bill 2016 2 Crimes Legislation Further Amendment Bill 2016 15 Crown Land Legislation Amendment Bill 2015 8 Domestic Animals Amendment (Puppy Farms and Pet Shops) Bill 2016 14 Education and Training Reform Amendment (Miscellaneous) Bill 2016 5, 6 Energy Legislation Amendment (Feed‐in Tariffs and Improving Safety and Markets) Bill 2016 15 Environment Protection Amendment (Banning Plastic Bags, Packaging and Microbeads) Bill 2016 10 Equal Opportunity Amendment (Equality for Students) Bill 2016 10, 11 Equal Opportunity Amendment (Religious Exceptions) Bill 2016 12, 13 Estate Agents Amendment (Underquoting) Bill 2016 12 Family Violence Reform Implementation Monitor Bill 2016 15 Fines Reform and Infringements Acts Amendment Bill 2016 3 Food Amendment (Kilojoule Labelling Scheme and Other Matters) Bill 2016 13, 14 Freedom of Information Amendment (Office of the Victorian Information Commissioner)

Bill 2016 10, 12 Gene Technology Amendment Bill 2015 1 Health Complaints Bill 2016 2, 3 Heritage Bill 2016 16, 17 House Contracts Guarantee Bill 2016 4 Housing Amendment (Victorian Housing Register and Other Matters) Bill 2016 15 Infant Viability Bill 2015 6, 7 Integrity and Accountability Legislation Amendment (A Stronger System) Bill 2015 1


22

Judicial Commission of Victoria Bill 2015 1, 2 Justice legislation (Evidence and Other Acts) Amendment Bill 2016 6, 7 Land (Revocation of Reservations ‐ Metropolitan Land) Bill 2016 6 Land (Revocation of Reservations ‐ Regional Victoria Land) Bill 2016 7 Legal Profession Uniform Law Application Amendment Bill 2016 9 Livestock Disease Control Amendment Bill 2016 5 Local Government Amendment Bill 2016 11 Local Government (Greater Geelong City Council) Act 2016 6, 7 Lord Mayor’s Charitable Foundation Bill 2016 13, 14 Medical Treatment Planning and Decisions Bill 2016 13, 14 Melbourne and Olympic Parks Amendment Bill 2016 11 Melbourne College of Divinity Amendment Bill 2016 9, 10 National Domestic Violence Order Scheme Bill 2016 11, 12 National Electricity (Victoria) Further Amendment Bill 2015 1 National Parks and Victorian Environmental Assessment Council Acts Amendment Bill 2016 8 Owner Drivers and Forestry Contractors Amendment Bill 2016 16 Owners Corporations Amendment (Short‐stay Accommodation) Bill 2016 8, 10 Parliamentary Budget Officer Bill 2016 3 Police and Justice Legislation Amendment (Miscellaneous) Bill 2016 11, 12 Powers of Attorney Amendment Bill 2016 9 Primary Industries Legislation Amendment Bill 2016 7, 8, 12 Public Administration Amendment (Public Sector Communication Standards) Bill 2016 6 Racing and Other Acts Amendment (Greyhound Racing and Welfare Reform) Bill 2015 1, 2 Resources Legislation Amendment (Fracking Ban) Bill 2016 17 Ridesharing Bill 2016 9 Road Legislation Amendment Bill 2015 3 Road Legislation Further Amendment Bill 2016 15 Road Management Amendment (Bus Stop Delivery Powers) Bill 2016 6 Rooming House Operators Bill 2015 1, 2 Rural Assistance Schemes Bill 2016 8 Sentencing (Community Correction Order) and Other Acts Amendment Bill 2016 14, 15 Serious Sex Offenders (Detention and Supervision) Amendment (Community Safety) Bill 2016 5, 6 Sex Offenders Registration Amendment Bill 2016 3, 4 Small Business Commission Bill 2016 16 State Taxation Acts Further Amendment Bill 2016 14 State Taxation and Other Acts Amendment Bill 2016 7 Tobacco Amendment Bill 2016 8, 9 Traditional Owner Settlement Amendment Bill 2016 12, 13 Transparency in Government Bill 2015 1 Transport (Compliance and Miscellaneous) Amendment (Abolition of the Penalty Fares

Scheme) Bill 2016 14 Transport (Compliance and Miscellaneous) Amendment (Public Safety) Bill 2016 9 Transport Integration Amendment (Head, Transport for Victoria and Other Governance

Reforms) Bill 2016 14 Treasury and Finance Legislation Amendment Bill 2016 4 Upholding Australian Values (Protecting Our Flags) Bill 2015 3 Urban Renewal Authority Victoria Amendment (Development Victoria) Bill 2016 17 Victoria Police Amendment (Merit‐based Transfer) Bill 2016 2 Victorian Fisheries Authority Bill 2016 13, 14 Victorian Funds Management Corporation Amendment Bill 2016 6, 8 Witness Protection Amendment Bill 2016 5, 6 Working with Children Amendment Bill 2016 15, 16 Wrongs Amendment (Organisational Child Abuse) Bill 2016 17

23

Append i x 3 Comm i t t e e C ommen t s c l a s s i f i e d

b y T e rm s o f R e f e r e n c e

This Appendix lists Bills under the relevant Committee terms of reference where the Committee has raised issues requiring clarification from the appropriate Minister or Member.

Alert Digest Nos.

Section 17(a)

(i) trespasses unduly upon rights or freedoms

Crimes Amendment (Carjacking and Home Invasion) Bill 2016 12, 14 Resources Legislation Amendment (Fracking Ban) Bill 2016 17 Sentencing (Community Correction Order) and Other Acts Amendment Bill 2016 14, 15

(iv) unduly requires or authorises acts or practices that may have an adverse effect on personal privacy within the meaning of the Privacy and Data Protection Act 2014

Judicial Commission of Victoria Bill 2015 1, 2

(v) unduly requires or authorises acts or practices that may have an adverse effect on privacy of health information within the meaning of the Health Records Act 2001

Judicial Commission of Victoria Bill 2015 1, 2

(vi) inappropriately delegates legislative power

Lord Mayor’s Charitable Foundation Bill 2016 13, 14 Medical Treatment Planning and Decisions Bill 2016 13, 14 Melbourne College of Divinity Amendment Bill 2016 9, 10 Owners Corporations Amendment (Short‐stay Accommodation) Bill 2016 8, 10 Small Business Commission Bill 2016 16 Traditional Owner Settlement Amendment Bill 2016 12, 13 Transport Integration Amendment (Head, Transport for Victoria and Other Governance

Reforms) Bill 2016 14 Urban Renewal Authority Victoria Amendment (Development Victoria) Bill 2016 17 Victorian Funds Management Corporation Amendment Bill 2016 6, 8

(vii) insufficiently subjects the exercise of legislative power to parliamentary scrutiny

(viii) is incompatible with the human rights set out in the Charter of Human Rights and Responsibilities

Access to Medicinal Cannabis Bill 2015 1, 3 Administration and Probate and Other Acts Amendment (Succession and Related Matters)

Bill 2016 17 Assisted Reproductive Treatment Amendment Bill 2015 16 of 2015, 1 Bail Amendment Bill 2015 16 of 2015, 1 Births, Deaths and Marriages Registration Amendment Bill 2016 12, 13


24

Confiscation and Other Matters Amendment Bill 2016 4, 5 Crimes Amendment (Carjacking and Home Invasion) Bill 2016 12, 14 Crimes Amendment (Carjacking) Bill 2016 11 Crimes Amendment (Sexual Offences) Bill 2016 9, 10 Education and Training Reform Amendment (Miscellaneous) Bill 2016 5, 6 Equal Opportunity Amendment (Equality for Students) Bill 2016 10, 11 Food Amendment (Kilojoule Labelling Scheme and Other Matters) Bill 2016 13, 14 Freedom of Information Amendment (Office of the Victorian Information Commissioner)

Bill 2016 10, 12 Health Complaints Bill 2016 2, 3 Heritage Bill 2016 16, 17 Infant Viability Bill 2015 6, 7 Justice legislation (Evidence and Other Acts) Amendment Bill 2016 6, 7 Local Government (Greater Geelong City Council) Act 2016 6, 7 Medical Treatment Planning and Decisions Bill 2016 13, 14 National Domestic Violence Order Scheme Bill 2016 11, 12 Police and Justice Legislation Amendment (Miscellaneous) Bill 2016 11, 12 Primary Industries Legislation Amendment Bill 2016 7, 8 Primary Industries Legislation Amendment Bill 2016 (House Amendments) 12 Racing and Other Acts Amendment (Greyhound Racing and Welfare Reform) Bill 2015 1, 2 Road Legislation Amendment Bill 2015 14 of 2015, 3 Rooming House Operators Bill 2015 1, 2 Serious Sex Offenders (Detention and Supervision) Amendment (Community Safety) Bill 2016 5, 6 Tobacco Amendment Bill 2016 8, 9 Transport Integration Amendment (Head, Transport for Victoria and Other Governance

Reforms) Bill 2016 14 Upholding Australian Values (Protecting Our Flags) Bill 2016 3 Victorian Fisheries Authority Bill 2016 13, 14 Witness Protection Amendment Bill 2016 5, 6 Working with Children Amendment Bill 2016 15, 16 Wrongs Amendment (Organisational Child Abuse) Bill 2016 17

25

Append i x 4 M i n i s t e r i a l C o r r e s p o n d e n c e 2 0 1 6

Table of correspondence between the Committee and Ministers or Members during 2016

This Appendix lists the Bills where the Committee has written to the Minister or Member seeking further advice, and the receipt of the response to that request.

Bill Title Minister/ Member Date of Committee Letter / Minister’s Response

Alert Digest No. Issue raised / Response Published

Road Legislation Amendment Bill 2015

Roads and Road Safety 10.11.15 23.02.16

14 of 2015 3 of 2016

Assisted Reproductive Treatment Amendment Bill 2015

Health 08.12.15 05.02.16

16 of 2015 1 of 2016

Bail Amendment Bill 2015 Attorney‐General 08.12.15 24.12.15

16 of 2015 1 of 2016

Access to Medicinal Cannabis Bill 2015

Health 09.02.16 25.02.16

1 of 2016 3 of 2016

Judicial Commission of Victoria Bill 2015

Attorney‐General 09.02.16 22.02.16

1 of 2016 2 of 2016

Racing and Other Acts Amendment (Greyhound Racing and Welfare Reform) Bill 2015

Racing 09.02.16 22.02.16

1 of 2016 2 of 2016

Rooming House Operators Bill 2015 Consumer Affairs, Gaming and Liquor Regulation

09.02.16 22.02.16

1 of 2016 2 of 2016

Health Complaints Bill 2016 Health 23.02.16 25.02.16

2 of 2016 3 of 2016

Corrections Amendment (No body, no parole) Bill 2016

Hon Edward O’Donohue MP 08.03.16 16.03.16

3 of 2016 4 of 2016

Sex Offenders Registration Amendment Bill 2016

Police 08.03.16 18.03.16

3 of 2016 4 of 2016

Upholding Australian Values (Protecting Our Flags) Bill 2015

Mr Daniel Young MP 08.03.16 3 of 2016

Confiscation and Other Matters Amendment Bill 2016


4 of 2016 5 of 2016

Education and Training Reform Amendment (Miscellaneous) Bill 2016

Education 12.04.16 02.05.16

5 of 2016 6 of 2016

Serious Sex Offenders (Detention and Supervision) Amendment (Community Safety) Bill 2016

Corrections 12.04.16 29.04.16

5 of 2016 6 of 2016

Witness Protection Amendment Bill 2016

Police 12.04.16 29.04.16

5 of 2016 6 of 2016


26



Infant Viability Bill 2015 Dr Rachel Carling‐Jenkins MP 03.05.16 23.05.16

6 of 2016 7 of 2016

Justice legislation (Evidence and Other Acts) Amendment Bill 2016


6 of 2016 7 of 2016

Local Government (Greater Geelong City Council) Act 2016


6 of 2016 7 of 2016

Victorian Funds Management Corporation Amendment Bill 2016

Treasurer 03.05.16 31.05.16

6 of 2016 8 of 2016

Primary Industries Legislation Amendment Bill 2016

Agriculture 24.05.16 06.06.16

7 of 2016 8 of 2016

Owners Corporations Amendment (Short‐stay Accommodation) Bill 2016

Consumer Affairs, Gaming and Liquor Regulation

07.06.16 18.07.16

8 of 2016 10 of 2016

Tobacco Amendment Bill 2016 Health 07.06.16 16.06.16

8 of 2016 9 of 2016

Crimes Amendment (Sexual Offences) Bill 2016


9 of 2016 10 of 2016

Melbourne College of Divinity Amendment Bill 2016

Education 21.06.16 21.07.16

9 of 2016 10 of 2016

Equal Opportunity Amendment (Equality for Students) Bill 2016

Ms Sue Pennicuik MLC 16.08.16 29.08.16

10 of 2016 11 of 2016

Freedom of Information Amendment (Office of the Victorian Information Commissioner) Bill 2016


10 of 2016 12 of 2016

Crimes Amendment (Carjacking) Bill 2016

Hon Edward O’Donohue MP 30.08.16 11 of 2016

National Domestic Violence Order Scheme Bill 2016


11 of 201612 of 2016

Police and Justice Legislation Amendment (Miscellaneous) Bill 2016

Police 30.08.16 09.09.16

11 of 201612 of 2016

Births, Deaths and Marriages Registration Amendment Bill 2016


12 of 201613 of 2016

Crimes Amendment (Carjacking and Home Invasion) Bill 2016


12 of 201614 of 2016

Primary Industries Legislation Amendment Bill 2016 (House Amendments)

Agriculture 13.09.16 12 of 2016

Traditional Owner Settlement Amendment Bill 2016


12 of 201613 of 2016


27



Food Amendment (Kilojoule Labelling Scheme and Other Matters) Bill 2016

Health 11.10.16 21.10.16

13 of 201614 of 2016

Lord Mayor’s Charitable Foundation Bill 2016

Health 11.10.16 21.10.16

13 of 201614 of 2016

Medical Treatment Planning and Decisions Bill 2016

Health 11.10.16 21.10.16

13 of 201614 of 2016

Victorian Fisheries Authority Bill 2016

Agriculture 11.10.16 21.10.16

13 of 201614 of 2016

Sentencing (Community Correction Order) and Other Acts Amendment Bill 2016


14 of 201615 of 2016

Transport Integration Amendment (Head, Transport for Victoria and Other Governance Reforms) Bill 2016

Public Transport 25.10.16 14 of 2016

Working with Children Amendment Bill 2016


15 of 201616 of 2016

Heritage Bill 2016 Planning 22.11.16 01.12.16

16 of 201617 of 2016

Small Business Commission Bill 2016

Small Business, Innovation and Trade

22.11.16 16 of 2016

Administration and Probate and Other Acts Amendment (Succession and Related Matters) Bill 2016

Attorney‐General 06.12.16 17 of 2016

Resources Legislation Amendment (Fracking Ban) Bill 2016

Resources 06.12.16 17 of 2016

Urban Renewal Authority Victoria Amendment (Development Victoria) Bill 2016

Major Projects 06.12.16 17 of 2016

Wrongs Amendment (Organisational Child Abuse) Bill 2016

Attorney‐General 06.12.16 17 of 2016


28

29

Append i x 5 S t a t u t o r y R u l e s a n d L e g i s l a t i v e

I n s t r umen t s c o n s i d e r e d

The following Statutory Rules and legislative instruments were considered by the Regulation Review Subcommittee on Monday, 5 December 2016.

Statutory Rules Series 2016

SR No. 105 – Supreme Court (Chapter I and VI Dual Commission Holder Amendments) Rules 2016

SR No. 106 – Supreme Court (Chapter I Court of Appeal Amendments) Rules 2016

SR No. 107 – Supreme Court (Intellectual Property) Rules 2016

SR No. 108 – Supreme Court (Powers of Judicial Registrars and Other Amendments) Rules 2016

SR No. 109 – Supreme Court (Service Out of Australia Amendment) Rules 2016

SR No. 110 – Confiscation Amendment Regulations 2016

SR No. 111 – Gambling Amendment (Training Requirements) Regulations 2016

SR No. 112 – Residential Tenancies Further Amendment Regulations 2016

SR No. 113 – Victorian Civil and Administrative Tribunal (Amendment No.15) Rules 2016

SR No. 114 – Building Amendment (Specific Use Bushfire Protected Buildings and Other Matters) Regulations 2016

SR No. 115 – Magistrates’ Court Criminal Procedure Amendment (Audio Visual Appearance) Rules 2016

SR No. 116 – Racing (Specified Race‐Course) Regulations 2016

SR No. 117 – Subordinate Legislation (Victoria State Emergency Service Regulations 2006) Extension Regulations 2016

SR No. 118 – Access to Medicinal Cannabis Regulations 2016

SR No. 119 – Tobacco (Victorian Health Promotion Foundation) Miscellaneous Amendment Regulations 2016

SR No. 120 – Planning and Environment (Fees) Regulations 2016

SR No. 121 – Subdivision (Fees) Regulations 2016

SR No. 122 – Prevention of Cruelty to Animals (Domestic Fowl) Regulations 2016

SR No. 123 – Offshore Petroleum and Greenhouse Gas Storage Amendment Regulations 2016

Legislative Instruments

Ministerial Determination – Tenants of Premises that are Not Retail Premises

Variation to the Community Infrastructure Levy Order

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