Alert Digest No. 1 of 2021
February 2021
On the following Act and Bills
Education and Training Reform Amendment (Miscellaneous) Bill 2020 Public Health and Wellbeing Amendment (Quarantine Fees) Act 2020 Summary Offences Amendment (Decriminalisation of Public Drunkenness) 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 Has ngs
Mrs Bev McArthur MLC Ms Fiona Pa en MLC Ms Sonja Terpstra MLC Member for Western Victoria Member for Northern Metropolitan Member for Eastern Metropolitan
Parliament House, Spring Street Commi ee Staff Melbourne Victoria 3002 Ms Helen Mason, Execu ve Officer Telephone: (03) 8682 2836 Ms Lauren Cook, Legal Adviser - Regula ons 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 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 ProtecƟon 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 ConsƟtuƟon 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 ConsƟtuƟon 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 ConsƟtuƟon 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 CommiƩees Act 2003, sec on 17
Table of Contents
Alert Digest No. 1 of 2021 Education and Training Reform Amendment (Miscellaneous) Bill 2020 1 Public Health and Wellbeing Amendment (Quarantine Fees) Act 2020 4 Summary Offences Amendment (Decriminalisation of Public Drunkenness) Bill 2020 8
Appendices 1 – Index of Bills and Subordinate Legislation in 2021 11 2 – Committee Comments classified by Terms of Reference 13 3 – Table of Ministerial Correspondence 15
Parliament of Victoria, Australia Scrutiny of Acts and Regulations Committee Reports to Parliament Alert Digests 2021 ISBN 978‐1‐925345‐93‐3 ISSN 1440‐2939
Ordered to be Published By Authority. Government Printer for the State of Victoria. Parliamentary Paper No. 194, Session 2018‐2021
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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. 1 of 2021
Education and Training Reform Amendment (Miscellaneous) Bill 2020
Member Hon James Merlino MP Introduction Date 8 December 2020 Portfolio Education Second Reading Date 9 December 2020
Summary
The Bill generally amends the Education and Training Reform Act 2006 (ETR Act). The Bill:‐ further clarifies and provides for the duties, functions and powers of the Victorian Institute of Teaching in relation to the approval of a program or course of study that leads to qualifying as a teacher; further amends the existing process for investigating the conduct, competence and fitness to teach of teachers and early childhood teachers including the conduct of preliminary assessments; makes amendments in respect of teacher registration in relation to the length of time for provisional reinstatement of a teacher; increases the scope of delegation powers of the Victorian Institute of Teaching and amends the Minister’s powers to issue policies, guidelines or directions to the Victorian Institute of Teaching.
Part 2 – Victorian Institute of Teaching (VIT) amendments
Clause 2 is the commencement provision.1 [2] It amends 2.6.3 of the ETR Act to enable the Minister to approve requirements, criteria or entry standards for initial teacher education programs including pathway programs2 recommended by the VIT (not the Accreditation Committee). Standards approved by the Minister must be published.3 The Minister must consider any requirements, criteria or standards which have been agreed with other States, Territories and the Commonwealth including teacher registration authorities. [5,7] Note the Second Reading Speech:‐ ‘The Bill also proposed new powers for VIT with respect to the approval of programs that are identified or marketed as offering a pathway to entry into an approved ITE program (pathway programs). The Victorian Government recognises the valuable scaffolding and support that pathway programs can provide to candidates who have not obtained the minimum ATAR for direct entry to ITE programs, to develop their skills to a level preparing them for entry to ITE.’
New Division 2B of Part 2.6 inserted by clause 7 sets out the initial teacher education program approval process. The endorsement process for continuing education programs is provided for in Division 2C of
1 Note the Explanatory memorandum:‐ ‘Subclause (3) provides that if a provision of the Bill does not come into operation before the first anniversary of the day on which it receives Royal Assent, it comes into operation on that day. The default commencement date has been chosen due to the potential for delay caused by the COVID‐19 pandemic, which will assist in the efficient implementation of the reforms contained in the Bill should a delay of this nature be realised.’ 2 Note the Explanatory memorandum:‐ ‘Pathway programs can provide support for candidates who have not achieved the minimum Australian Tertiary Admission Rank for direct entry to an initial teacher education program, to support them to develop skills to a level preparing them for entry to an initial teacher education program.’ 3 Note the Explanatory memorandum:‐ ‘The Institute must publish the approved requirements, criteria or standards on its website under new section 2.6.5(5).’
1 Scrutiny of Acts and Regulations Committee
Part 2.6. [7] A provider of a program or course of study may apply to the VIT (not the Accreditation Committee) for approval of an initial teacher education program as a pathway program. [7] The VIT must have regard to relevant advice regarding pathway programs and continuing education programs from the Accreditation Committee. [7] The VIT may set requirements, criteria or standards that a continuing education program must satisfy before it endorses the program.4 [Division 2C,7] It clarifies the functions of the Accreditation Committee to assess programs and courses and make recommendations to the VIT. The function to approve initial teacher education programs is conferred on the VIT. [9]
It clarifies that the VIT may refuse a further grant of provisional registration if the teacher has been granted provisional registration for a total period of 6 years. Further provisional registration may be granted where there are special circumstances. [10] Note the Explanatory memorandum:‐ ‘The amendments are intended to support improved teacher quality by encouraging teachers to work towards full registration during their first six years as a registered teacher.’ It inserts new sections 2.6.18A, 2.6.18B and 2.6.18D into the ETR Act to provide the framework for a person to apply for reinstatement of their registration as a teacher or early childhood teacher. The VIT must conduct a national criminal history check of the applicant in considering an application for reinstatement. (This is the case with applications for renewal.) [15] It provides for the disclosure of information to relevant Government and Commonwealth Departments for safety purposes in accordance with privacy principles.5 [18]
It inserts new Division 10A6 into the ETR Act which provides for the process of making notifications and complaints about registered teachers to the VIT.7 New section 2.6.31 sets out the process for the VIT to conduct preliminary assessments of notifications and complaints.8 [24] An investigation may be conducted by the VIT in accordance with new section 2.6.33.9 [26]
Note the Second Reading Speech:‐ ‘VIT receives a large number of notifications and complaints about teachers from a number of sources, including through the Office of the Commissioner for Children and Young People, from employers and members of the public. VIT is currently dealing with over 700 such notifications and complaints, some of which will not meet the threshold of misconduct. To enable VIT to deal more efficiently with this case load, it is proposed that VIT be given a power to dismiss a matter that is vexatious, frivolous, misconceived or lacking in substance. This will not mean that important matters relevant to a teacher’s suitability are dismissed. VIT will undertake a preliminary assessment of each matter against a risk‐based framework to decide whether or not the matter should be investigated to determine whether disciplinary action needs to be taken.’
4 Note the Explanatory memorandum:‐ ‘The endorsement of continuing education programs by the Institute …is intended to be a voluntary scheme. Subsection (4) provides that a provider of a continuing education program is not required to apply to the Institute for endorsement of the program, unit or course as a continuing education program, and the provider may identify or market the program, unit or course of study as a continuing education program despite it not being endorsed by the Institute. This new section does not prevent providers of continuing education programs endorsed by the Institute from advertising that those programs are endorsed by the Institute.’ 5 Note the Second Reading Speech:‐ ‘VIT is subject to the Privacy and Data Protection Act 2014 (PDP Act), [it] has a Data Security Plan in place and will share information strictly in accordance with the Protective Data Security Framework which operates under the PDP Act.’ 6 Existing Division 10 provides for powers of discipline inquiry. 7 Existing Part 2.6 provides for the conduct and procedures of formal and informal hearings, determinations, notification and review by VCAT. 8 Note the Explanatory memorandum:‐ ‘New section 2.6.30 largely replicates current section 2.6.31 of the Principal Act. The purpose of this provision is to ensure that the Institute continues to receive information it needs to adequately monitor and assess the suitability of a person to be a registered teacher.’ 9 Note the Explanatory memorandum:‐ ‘This provision replicates current section 2.6.33(2) of the Principal Act.’
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New section 2.6.67(1) provides the VIT may delegate any function or power of the VIT (other than the power of delegation or any power under Division 8A10 or the power to conduct an investigation under Division 11) to a member of the Council, the Registrar or any other person employed by the VIT under the Part, a committee or body or a member of a committee or body under the Part or the members of the governing board of a college established under the Part. [34] The VIT may delegate to the Chief Executive Officer of the VIT any function or power of the VIT under Division 8A. The VIT may delegate the VIT’s power to conduct an investigation under Division 1111 (other than the VIT’s power to make determinations upon an investigation) to an employee of the VIT, an investigator retained by the VIT, a member of the Council or a number of members not exceeding three or the employer or a nominee of the employer of the person being investigated. [34]
Note the Second Reading Speech:‐ ‘The Bill will provide the VIT Council with greater flexibility in its decision making by removing current limitations on Council’s power to delegate matters. This change will give the VIT Council greater control to determine which matters it should spend more time on and which can be delegated, enabling Council more time to focus on the strategic direction of VIT and less on procedural matters.’
It provides an express power for the Minister to issue policies, guidelines and directions to an institution, person or body established by or continued in operation under the ETR Act.12 [36]
Comments under the PCA
The Committee makes no comment with respect to its terms of reference under section 17 of the Parliamentary Committees Act 2003.
Charter Issues
The Bill is compatible with the rights set out in the Charter of Human Rights and Responsibilities Act 2006.
10 Division 8A provides for the interim suspension of registration. 11 Division 11 provides for investigations. 12 Note the Explanatory memorandum:‐ ‘The Minister’s power in this regard currently exists implicitly under section 5.2.1(3) …this is a technical amendment to expressly provide for the power in section 5.2.1(2)… Section 5.2.1(6) is a historical provision which was carried over from the Victorian Institute of Teaching Act 2001 (now repealed) when that Act was consolidated in the Principal Act… This has resulted in ambiguity and inconsistency in the Principal Act with respect to the Minister’s ability to issue binding policies, guidelines and directions to all statutory authorities in the education portfolio. This reform addresses this inconsistency, so that mandatory policies, guidelines or directions can be issued by the Minister to the Institute, VCAA and VRQA, subject to certain limitations on that power.’
3 Scrutiny of Acts and Regulations Committee
Public Health and Wellbeing Amendment (Quarantine Fees) Act 2020
Member Hon Lisa Neville MP Introduction Date 8 December 2020 Portfolio Police and Emergency Services Second Reading Date 8 December 2020 Royal Assent 9 December 2020
Summary
Note: The Committee reports on this Act pursuant to section 17(c)(i) and (ii) of the Parliamentary Committees Act 2003.
The Act amended the Public Health and Wellbeing Act 2008 (PHW Act) to provide for fees for quarantine of people arriving in Victoria from overseas. Note the Second Reading Speech:‐ ‘The Public Health and Wellbeing Amendment (Quarantine Fees) Bill 2020 will enable the Victorian Government to charge fees for mandatory quarantine from all international passengers arriving in Victoria, including Australian Citizens and Australian permanent residents. This is consistent with other States and Territories and the approach agreed by National Cabinet in July this year with respect to mandatory quarantine.’
It inserted new sections 238A to 238E which provide power for the Governor in Council to make regulations for fees payable in relation to a quarantined person’s detention. New section 238B provides for the waiver of fees in certain circumstances. New section 238C provides for the manner of payment of fees including fees by instalments and payment plans. New section 238E provides for the repeal of new sections 238A to 238E on 31 December 2021. [2] Section 4 contains transitional provisions. [4]
It inserted new Part 14 into the PHW Act which provides for fees relating to detention in the quarantine during the COVID‐19 pandemic. [5] It sets out the meaning of quarantined person, liability to pay prescribed fees, invoices of fees, waiver of fees, verification of waiver of fees, payment of fees and recovery of unpaid fees. New section 263 provides that the Administrative Office Head of COVID‐19 Quarantine Victoria may delegate to any employee or class of employees employed under Part 3 of the Public Administration Act 2004, any power, duty or function of COVID‐19 Quarantine Victoria or the Head under that Part (ie: Part 14). [5]
Comments under the PCA
Rights and Freedoms – Retrospective operation – (section 17(a)(i), PCA)
Section 2 is the commencement provision. It provides that sections 1 and 2 commence on the day the Act receives Royal Assent. [2] Subclause (2) provides that the remaining provisions of the Act are deemed to have commenced operation retrospectively on 7 December 2020. This includes statutory rules which may have been made from that date. Note the Second Reading Speech:‐ ‘The proposed Bill enables the amendments and any regulations made pursuant to the amendments (once passed and assented to) to take retrospective effect on 7 December 2020. A retrospective clause is necessary as the Bill will not be passed by this Parliament before international flights into Victoria resume, and will require a minimum number of days following passage through Parliament for Royal Assent, to take effect. Retrospective commencement from 7 December 2020 also enables equitable treatment of international arrivals entering into Victoria regardless of when they secure flights to Victoria. By enabling the scheme to take effect from the date of resumption of international flights, the Bill allows for the most equitable
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approach, so that travellers who arrive later are not ‘penalised’ in comparison to those who are able to secure earlier flights into Victoria. As we have announced these fees already, returning international travellers have been put on notice that they may be charged fees for mandatory quarantine, and this will minimise the negative impacts of any regulations made to take retrospective effect.’
The Committee notes the retrospective effect of the provision. The Committee of the view the provision is justified.
Insufficiently subjects the exercise of legislative power to parliamentary scrutiny – (section 17(a)(vii), PCA)
New section 238D disapplies certain requirements of the Subordinate Legislation Act 1994 (SLA) in respect of the making of statutory rules under sections 238A, 238B or 238C. [2] A section 6 certificate of consultation is not required. A regulatory impact statement under section 7 of that Act is not required. The Committee notes that section 12A of the SLA provides that the responsible Minister must ensure a human rights certificate is prepared in respect of each statutory rule unless it is exempted under subsection (3).13
Note the Statement of Compatibility:‐ ‘The powers in the Bill to make regulations for fees for the quarantine of persons in specified places will not directly impact on the rights in relation to human[e] treatment in section 22 of the Charter, but the regulations that are made under the power may indirectly impact on the rights when the imposition of fees under the power are combined with the impact of public health orders under the Public Health and Wellbeing Act 2008 requiring a ‘quarantined person’ to quarantine in a specified place. However, this impact is likely to be reasonable and proportional in all the circumstances and compatible with the rights in section 22 of the Charter,
13 Subordinate Legislation Act 1994, s.12A: 12A Human rights certificate (1) The responsible Minister must ensure that a human rights certificate is prepared in respect of a proposed statutory rule, unless the proposed statutory rule is exempted under subsection (3). (2) A human rights certificate must— (a) certify whether, in the opinion of the responsible Minister, the proposed statutory rule does or does not limit any human right set out in the Charter of Human Rights and Responsibilities; and (b) if it certifies that, in the opinion of the responsible Minister, the proposed statutory rule does limit a human right set out in the Charter of Human Rights and Responsibilities, set out— (i) the nature of the human right limited; and (ii) the importance of the purpose of the limitation; and (iii) the nature and extent of the limitation; and (iv) the relationship between the limitation and its purpose; and (v) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve. (3) Subsection (1) does not apply if the responsible Minister certifies in writing that in his or her opinion— (a) the proposed statutory rule is a rule which relates only to a court or tribunal or the procedure, practice or costs of a court or tribunal; or (b) the proposed statutory rule only— (i) prescribes under section 4(1)(a) an instrument or class of instrument to be a statutory rule; or (ii) exempts under section 4(1)(b) an instrument or class of instrument from the operation of this Act; or (iia) prescribes under section 4A(1)(a) an instrument or a class of instrument for the purposes of paragraph (h) of the definition of legislative instrument; or (iib) prescribes under section 4A(1)(b) an instrument or a class of instrument to be, or not to be, a legislative instrument or class of legislative instrument for the purposes of this Act or any specified provision or provisions of this Act; or (c) the proposed statutory rule is an extension regulation.
5 Scrutiny of Acts and Regulations Committee
and the impact of regulations on those rights will be considered when a human rights certificate is developed for the regulations.’
The Committee also notes that pursuant to section 15 of the SLA a copy of each statutory rule made and related documents must be tabled in each House of the Parliament and sent to it.14 Section 15A provides that a copy of all accompanying documents must be sent to the Committee.15 New section 238D is repealed by new section 238E on 31 December 2021.
Note the Second Reading Speech:‐ ‘The proposed amendments include clauses disapplying certain requirements of the Subordinate Legislation Act 1094 (SL Act) for regulations to be made under the proposed amendments. In particular, the requirements for consultation and completion of a regulatory impact statement (RIS) are disapplied. This has not been done lightly. Inclusion of these clauses is required because of the strong public interest in having a fee scheme for mandatory quarantine in place as soon as possible upon resumption of flights, to reduce costs to Victorians of mandatory quarantine for international arrivals. In balancing the strong public interest of operationalising a fee scheme promptly with the need for appropriate scrutiny of laws and regulations by the Parliament, the proposed amendments to the Bill (including the SL Act disapplication clauses) have been drafted to have limited operation and the reforms will be
14 Subordinate Legislation Act 1994, s.15: 15 Statutory rules and related documents to be laid before Parliament (1) On or before the 6th sitting day after notice of the making of a statutory rule has been published in the Government Gazette under section 17(2), a copy of the statutory rule must be laid before each House of the Parliament. (1A) If any of the following documents have been issued or given in respect of the statutory rule, a copy of the document must also be laid before each House of the Parliament— (a) an extension certificate and the Premier's certificate under section 5A(3); (b) a certificate issued under section 6; (c) a certificate issued under section 6A; (d) an exemption certificate; (e) a compliance certificate under section 10(4); (f) a human rights certificate; (g) a human rights exemption certificate; (h) a section 13 certificate; (i) the accompanying recommendation to the Governor in Council to make the statutory rule. (2) A failure to comply with subsection (1) or (1A) does not affect the operation or effect of the statutory rule but the Scrutiny Committee may report the failure to each House of the Parliament. (3) A copy of each statutory rule laid under subsection (1) must as soon as possible after being so laid be posted or delivered to each member of Parliament who has requested a copy of that statutory rule. 15 Subordinate Legislation Act 1994, s.15A: 15A Accompanying documents to be sent to Scrutiny Committee (1) When a statutory rule is made, the responsible Minister must ensure that a copy of each of the following is given to the Scrutiny Committee— (a) any applicable document referred to in section 15(1A) relating to the statutory rule; (b) if an exemption certificate has been issued under section 9 by the Premier, the reasons given by the relevant responsible Minister to the Premier as to why the public interest requires that the proposed statutory rule be made without complying with section 7(1); (c) if a regulatory impact statement has been prepared— (i) the regulatory impact statement for the statutory rule; and (ii) a copy of all comments and submissions received. (2) The documents referred to in subsection (1) must be given to the Scrutiny Committee no later than the later of— (a) 10 working days after the making of the statutory rule; or (b) 10 working days after the establishment of the Committee. (3) A failure to comply with subsection (2) does not affect the operation or effect of the statutory rule.
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repealed on 31 December 2021, apart from some transitional provisions that are necessary to be retained.’
The Committee notes the above. The Committee is of the view the provisions are justified.
Charter Issues
The Bill is compatible with the rights set out in the Charter of Human Rights and Responsibilities Act 2006.
7 Scrutiny of Acts and Regulations Committee
Summary Offences Amendment (Decriminalisation of Public Drunkenness) Bill 2020
Member Hon Jill Hennessy MP Introduction Date 8 December 2020 Portfolio Attorney‐General Second Reading Date 9 December 2020
Summary
The Bill amends the Summary Offences Act 1966. The Bill:‐ repeals offences relating to public drunkenness. Note the Second Reading Speech:‐ ‘Abolishing the offence of public drunkenness was one of the key recommendations of the Royal Commission into Aboriginal Deaths in Custody in 1991. Until now, Victoria was only one of two states that had not yet done so, with Aboriginal Victorians still disproportionately affected by the offence… The Royal Commission into Aboriginal Deaths in Custody, and other reviews since, have stressed the importance of alternative non‐custodial systems, laws and services for people who are intoxicated in public… This is why, when we announced the government’s reform commitment in August 2019, we also committed to putting in place a holistic public health response.’ makes consequential amendments to the arrest and infringement notice powers applicable to public drunkenness offences and consequential amendments to the Bail Act 1977 and the Liquor Control Reform Act 1998.
It repeals sections 13 to 16 of the Summary Offences Act 1966. This includes offences of being drunk in a public place and being drunk and disorderly in a public place and the power of arrest of police officers and certain Protective Services Officers in relation to those offences. [5‐7] Consequential amendments are made in respect of the issue of infringement notices which no longer apply. [9] It repeals section 16 which contains two related offences.16 [8] It makes consequential amendments and removes references from other Acts no longer required including the Bail Act 1977 and the Liquor Control Reform Act 1998. [12,13]
Comments under the PCA
Delegation of legislative power – delayed commencement – (section 17(a)(iii), PCA)
Clause 2 is the commencement provision. Subclause (1) provides that the Act comes into operation on a day or days to be proclaimed. Subclause (2) provides that if a provision of the Act does not come into operation before 7 November 2022, it comes into operation on that day. [2]
Note the Second Reading Speech:‐ ‘Last year I appointed an Expert Reference Group17 to provide advice to government on the design and implementation of a holistic health model to protect the safety and wellbeing of
16 Note the Second Reading Speech:‐ ‘Section 16(a) makes it an offence for any person, while drunk, to behave in a riotous or disorderly manner in a public place. Section 16(b) makes it an offence for any person in a public place to be drunk in charge of a carriage (not including a motor vehicle within the meaning of the Road Safety Act 1986) or a horse or cattle or a steam engine. Although this somewhat outdated provision may apply to a person riding a bicycle, the government considers it is appropriate that any potential reduction in road safety arising from its repeal is addressed in relevant provisions for road safety. The Department of Transport will lead any necessary policy development work in this respect, in collaboration with the Department of Justice and Community Safety and Victoria Police prior to repeal taking effect.’ 17 Note the Explanatory memorandum:‐ ‘An Expert Reference Group (ERG) was appointed by the Government in August 2019 to provide advice on these reforms. The ERG’s report, ‘Seeing the Clear Light of Day’ (August 2020) provided strategic advice and 86 recommendations to Government on the decriminalisation of public drunkenness and the establishment of an alternative public health model to respond to public drunkenness.’
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individuals who are intoxicated in public… As we work through the recommendations to develop and implement the public health model envisaged by the Expert Reference Group and give effect to their intent, further legislation may be developed to help support the model. The Bill will take effect in November 2022, substantially in line with the Expert Reference Group’s recommended 24‐month implementation period for the public health model. The Expert Reference Group stressed the importance of this transition period to effectively design, trial and implement a health model across the state by the time decriminalisation takes effect.’
The Committee is of the view the provision is justified.
Charter Issues
The Bill is compatible with the rights set out in the Charter of Human Rights and Responsibilities Act 2006.
9 Scrutiny of Acts and Regulations Committee
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Appendix 1 Index of Bills and Subordinate Legislation in 2021
Alert Digest Nos. BILLS Change or Suppression (Conversion) Practices Prohibition Bill 2020 13 of 2020 Cladding Safety Victoria Act 2020 11 of 2020 COVID‐19 Omnibus (Emergency Measures) Act 2020 5 of 2020 COVID‐19 Omnibus (Emergency Measures) and Other Acts Amendment Bill 2020 9 of 2020 Education and Training Reform Amendment (Miscellaneous) Bill 2020 1 North East Link Bill 2020 4 of 2020 Public Health and Wellbeing Amendment (Quarantine Fees) Act 2020 1 Public Health and Wellbeing Amendment (State of Emergency Extension and Other Matters) Act 2020 8 of 2020 Spent Convictions Bill 2020 11 of 2020 State Taxation Acts Amendment Bill 2020 13 of 2020 Summary Offences Amendment (Decriminalisation of Public Drunkenness) Bill 2020 1
SUBORDINATE LEGISLATION
11 Scrutiny of Acts and Regulations Committee
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Appendix 2 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 clarification from the appropriate Minister or Member.
Alert Digest Nos.
Section 17(a)
(i) trespasses unduly upon rights or freedoms Cladding Safety Victoria Act 2020 (House Amendment) 11 of 2020 COVID‐19 Omnibus (Emergency Measures) and Other Acts Amendment Bill 2020 9 of 2020
(iii) makes rights, freedoms or obligations dependent upon insufficiently defined administrative powers Public Health and Wellbeing Amendment (State of Emergency Extension and Other Matters) Act 2020 8 of 2020
(vi) inappropriately delegates legislative power COVID‐19 Omnibus (Emergency Measures) and Other Acts Amendment Bill 2020 9 of 2020
(vii) insufficiently subjects the exercise of legislative power to parliamentary scrutiny Public Health and Wellbeing Amendment (State of Emergency Extension and Other Matters) Act 2020 8 of 2020
(viii) is incompatible with the human rights set out in the Charter of Human Rights and Responsibilities Change or Suppression (Conversion) Practices Prohibition Bill 2020 13 of 2020 Cladding Safety Victoria Act 2020 (House Amendment) 11 of 2020 COVID‐19 Omnibus (Emergency Measures) Act 2020 5 of 2020 COVID‐19 Omnibus (Emergency Measures) and Other Acts Amendment Bill 2020 9 of 2020 North East Link Bill 4 of 2020 Public Health and Wellbeing Amendment (State of Emergency Extension and Other Matters) Act 2020 8 of 2020 Spent Convictions Bill 2020 11 of 2020 State Taxation Acts Amendment Bill 2020 13 of 2020
13 Scrutiny of Acts and Regulations Committee
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Appendix 3 Table of Ministerial Correspondence
Table of correspondence between the Committee and Ministers or Members
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 Alert Digest No. Committee Issue raised / Letter / Response Minister’s Published Response North East Link Bill 2020 Treasurer 17‐03‐20 4 of 2020 COVID‐19 Omnibus (Emergency Premier 02‐06‐20 5 of 2020 Measures) Act 2020 Public Health and Wellbeing Health 16‐09‐20 8 of 2020 Amendment (State of Emergency Extension and Other Matters) Act 2020 COVID‐19 Omnibus (Emergency Premier 14‐10‐20 9 of 2020 Measures) and Other Acts Amendment Bill 2020 Cladding Safety Victoria Act 2020 Planning 12‐11‐20 11 of 2020 (House Amendment) Spent Convictions Bill 2020 Attorney‐General 12‐11‐20 11 of 2020 Change or Suppression Attorney‐General 13‐12‐20 13 of 2020 (Conversion) Practices Prohibition Bill 2020 State Taxation Acts Amendment Treasurer 13‐12‐20 13 of 2020 Bill 2020
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