Alert Digest No. 10 of 2020 October 2020 On the following Bills COVID‐19 Omnibus (Emergency Measures) and Other Acts Amendment Act 2020 (House Amendment) Justice Legislation Amendment (Supporting Victims and Other Matters) Bill 2020 Marine Safety Amendment (Better Boating Fund) Bill 2020 The Committee Mr Mark Gepp MLC Mr Neale Burgess MLA Ms Sarah Connolly MLA Ms Sonya Kilkenny MLA Chairperson Deputy Chariperson Member for Tarneit Member for Carrum Member for Northern Victoria Member for Hasngs Mrs Bev McArthur MLC Ms Fiona Paen MLC Ms Sonja Terpstra MLC Member for Western Victoria Member for Northern Metropolitan Member for Eastern Metropolitan Parliament House, Spring Street Commiee Staff Melbourne Victoria 3002 Ms Helen Mason, Execuve Officer Telephone: (03) 8682 2836 Ms Lauren Cook, Legal Adviser - Regulaons Facsimilie: (03) 8682 2858 Mr Simon Dinsbergs, Business Support Officer Email: [email protected] Ms Sonya Caruana, Office Manager Web: www.parliament.vic.gov.au/sarc Professor Jeremy Gans, Human Rights Adviser Terms of Reference - Scrutiny of Bills The funcons of the Scruny of Acts and Regulaons Commiee 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 obligaons dependent upon insufficiently defined administrave powers; (iii) makes rights, freedoms or obligaons dependent upon non-reviewable administrave decisions; (iv) unduly requires or authorises acts or pracces that may have an adverse effect on personal privacy within the meaning of the Privacy and Data ProtecƟon Act 2014; (v) unduly requires or authorises acts or pracces that may have an adverse effect on privacy of health informaon within the meaning of the Health Records Act 2001; (vi) inappropriately delegates legislave power; (vii) insufficiently subjects the exercise of legislave power to parliamentary scruny; (viii) is incompable with the human rights set out in the Charter of Human Rights and Responsibilies; (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 secon 85 of the ConsƟtuƟon Act 1975, or raises an issue as to the jurisdicon of the Supreme Court; (ii) if a Bill repeals, alters or varies secon 85 of the ConsƟtuƟon Act 1975, whether this is in all the circumstances appropriate and desirable; (iii) if a Bill does not repeal, alter or vary secon 85 of the ConsƟtuƟon Act 1975, but an issue is raised as to the jurisdicon of the Supreme Court, as to the full implicaons of that issue; Parliamentary CommiƩees Act 2003, secon 17 Table of Contents Alert Digest No. 10 of 2020 Justice Legislation Amendment (Supporting Victims and Other Matters) Bill 2020 1 Marine Safety Amendment (Better Boating Fund) Bill 2020 4 House Amendments COVID‐19 Omnibus (Emergency Measures) and Other Acts Amendment Act 2020 5 Appendices 1 – Index of Bills and Subordinate Legislation in 2020 9 2 – Committee Comments classified by Terms of Reference 11 3 – Table of Ministerial Correspondence 13 Parliament of Victoria, Australia Scrutiny of Acts and Regulations Committee Reports to Parliament Alert Digests 2020 ISBN 978‐1‐925345‐89‐6 ISSN 1440‐2939 Ordered to be Published By Authority. Government Printer for the State of Victoria. Parliamentary Paper No. 153, Session 2018‐2020 i 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 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 ‘PCA’ refers to the Parliamentary Committees Act 2003 ‘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 2020 one penalty unit equals $165.22) ‘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 ii Alert Digest No. 10 of 2020 Justice Legislation Amendment (Supporting Victims and Other Matters) Bill 2020 Member Hon Jill Hennessy MP Introduction Date 13 October 2020 Portfolio Attorney‐General Second Reading Date 14 October 2020 Summary The Bill amends various Acts to make provision for further arrangements with respect to victims of crime and other matters. The Bill:‐ Amends the Judicial Proceedings Reports Act 1958 to make reforms to further the rights of victims and their ability to tell their stories. It makes provision in relation to publishing identification of victims of sexual offences; Amends the Victims of Crime Assistance Act 1996 to provide for the delegation of duties to tribunal staff to assist with the increase in the number of pending applications; Amends the Victims of Crime Commissioner Act 2015 in relation to appointments and remuneration of members and to extend the maximum period of appointment for committee members; Amends the Defamation Act 2005 and the Limitation of Actions Act 1958 to implement model nationally agreed laws on defamation; Amends the Corrections Act 1986 in relation to Commonwealth/State arrangements in respect of certain detention orders and dealing with letters and other items sent to or received by prisoners; Amends the Accident Compensation Act 1985 and the Workplace Injury Rehabilitation and Compensation Act 2013 in respect of COVID‐19 impacts; Amends the Forests Act 1958 to clarify the ability of firefighters to perform their job; Supports the national High Risk Offender Scheme and clarifies the power of prison officers in security matters. Part 2 amends the Judicial Proceedings Reports Act 1958 which relates to publication of details likely to identify victims of sexual offences. [3,4] The amendments allow victims to publish their own details, or give permission to others to publish their details without court involvement.1 It amends the current definition of ‘publish’ to make it clear that the reference to electronic communication includes but is not limited to, social media. [3,4] The amendments provide retrospective immunity for certain publications. (See Committee comment) Note the Second Reading Speech: ‐ 1 Note the Explanatory Memorandum:‐ ‘Permission is defined in section 4(1). Requiring the permission to be written (or if the victim is incapable of providing written permission, recorded by other means) will provide a safeguard both for the victim and the publisher by ensuring there is evidence of permission and that the scope of the permission is clear. It will also allow victims to tailor their permission to specify the types of identifying details that may be published, or to limit publication in any other way. As the Example provides, the victim may limit the type of identifying particulars (such as name, but not image), or when or how their details are published. As the Note provides, if the publication is likely to lead to the identification of another victim who does not give permission to publish, the offence under subsection (1A) still applies.’ 1 Scrutiny of Acts and Regulations Committee ‘First, the Bill will make it clear the victim‐survivors, both adults and children may lawfully self‐ publish information likely to identify them as a victim‐survivor of a sexual offence. Victim‐ survivors may choose to self‐publish details on social media, for example as part of their process of recovery and healing… Second, the Bill will clarify when a third party, such as a media organisation, may publish material that identifies a victim‐survivor….