PARLIAMENT OF VICTORIA
Scrutiny of Acts and Regulations Committee
Alert Digest No. 6 of 2019
Monday, 27 May 2019
on the following Bills
Owner Drivers and Forestry Contractors Amendment Bill 2019
Public Health and Wellbeing Amendment Bill 2019
Public Holidays Amendment Bill 2019 Sale of Land Amendment Bill 2019 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 Nina Taylor MLC Member for Western Victoria Member for Northern Metropolitan Member for Southern 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 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 Table of Contents
Page Nos.
Alert Digest No. 6 of 2019 Owner Drivers and Forestry Contractors Amendment Bill 2019 1 Public Health and Wellbeing Amendment Bill 2019 3 Public Holidays Amendment Bill 2019 4
Ministerial Correspondence 5 Sale of Land Amendment Bill 2019
Appendices 1 – Index of Bills in 2019 9 2 – Committee Comments classified by Terms of Reference 11 3 – Table of Ministerial Correspondence 13 4 – Statutory Rules and Legislative Instruments considered 15
Parliament of Victoria, Australia Scrutiny of Acts and Regulations Committee Reports to Parliament Alert Digests 2019 ISBN 978‐1‐925345‐68‐1 ISSN 1440‐2939
Ordered to be Published By Authority. Government Printer for the State of Victoria. Parliamentary Paper No. 12, Session 2018‐2019
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 2018 one penalty unit equals $158.57) ‘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. 6 of 2019
Owner Drivers and Forestry Contractors Amendment Bill 2019
Bill Information
Member Hon Tim Pallas MP Introduction Date 30 April 2019 Portfolio Industrial Relations Second Reading Date 1 May 2019 Summary
The Bill makes miscellaneous amendments to the Owner Drivers and Forestry Contractors Act 2005 (the Act) as a result of a Review1 in 2016. In particular the Bill: ‐ Amends the purposes so as to promote best practice in the transport industry and forestry industry in relation to the engagement, education and training of owner drivers and forestry contractors. Provides that an information booklet is to be provided to contractors, tenderers, forestry contractors, owner drivers and tip truck drivers in connection with excavation work in the building and construction industry and for short term engagements.[6‐9, 12‐14] Penalties apply for failure to provide the information. (The maximum penalties are 25 penalty units for a body corporate and 5 penalty units in any other case respectively.) The Committee notes the comments in the Second Reading Speech: ‐ ‘Two of the key information requirements are… to provide… a copy of the applicable rates and costs schedule for their vehicle class and an information booklet, three days before entering into a contract… The rates and costs schedules do not set minimum rates of pay that must be paid. In this respect the status quo has been maintained.’ Requires hirers to pay an amount under a regulated contract within 30 days of receipt of the invoice.[18] It also provides that the Small Business Commission can arrange for the arbitration of disputes or a different form of alternative dispute resolution.[21, 22] Inserts new Part 7A which establishes a new compliance and enforcement framework. Authorised officers have inspection powers and are responsible for monitoring and the enforcement of mandatory requirements in the Act.[28]
Comments under the PCA
Privilege against self‐incrimination (section 17(a)(i), PCA)
Clause 28 inserts new Part 7A. New section 60E provides an authorised officer with power to compel a person to give information and produce documents. New section 60I provides protection against
1 Note the Second Reading Speech: ‐ ‘On 16 November 2016, the then Minister for Industrial Relations announced a review of the Act and the Owner Drivers and Forestry Contractors Regulations 2006. The review sought to identify whether any changes were needed to the Act and Regulations to improve the operation of owner drivers and forestry contractors, while ensuring a competitive and fair operating environment for small businesses in Victoria. The Review was undertaken on the basis that contractors operate as small businesses within a framework of commercial laws. The Review also considered recommendations 30 and 31 of the Labour Hire Inquiry which recommended changes to the Act to improve the position of tip truck owner drivers operating in the building and construction sector. Twenty‐five confidential submissions were received, which proposed a range of legislative and non‐legislative changes. Throughout the review process, consultation was undertaken with industry associations, union, owner drivers and affected government bodies. The suite of proposals in this Bill are based on these discussions and the submissions received.’
1 Scrutiny of Acts and Regulations Committee self‐incrimination. The Committee notes the comments in the Second Reading Speech: ‐ ‘New section 60I of the Bill makes it clear that the protection against self‐incrimination applies, providing that it is a reasonable excuse for a person to refuse or fail to give information or produce a document if doing so would tend to incriminate that person. New section 60E provides that an authorised officer must, when issuing a notice to a person to require information, inform that person of their right to rely on the privilege against self‐incrimination.’
The Committee is of the view that the provisions are justified.
Charter Issues
The Owner Drivers and Forestry Contractors Bill 2019 is compatible with the rights set out in the Charter of Human Rights and Responsibilities Act 2006.
2 Alert Digest No. 6 of 2019
Public Health and Wellbeing Amendment Bill 2019
Bill Information
Member Hon Jenny Mikakos MP Introduction Date 30 April 2019 Portfolio Health Second Reading Date 1 May 2019 Summary
The Bill amends the Public Health and Wellbeing Act 2008 (the Act).
It removes requirements in relation to the provision of information before and after HIV testing. The Committee notes the comments in the Second Reading Speech: ‐ ‘The need to review and modernise these requirements is an issue that a range of sector stakeholders have been raising for some years. Overwhelmingly, the sector has supported a repeal of relevant sections of the Act relating to pre and post HIV testing… Removing the Victorian requirements will harmonise Australian policy on HIV testing and would allow HIV testing to be treated like testing for all other comparable blood borne viruses.’
Comments under the PCA
The Committee makes no comment on the Bill with respect to its terms of reference under section 17 of the Parliamentary Committees Act 2003.
Charter Issues
The Public Health and Wellbeing Bill 2019 is compatible with the rights set out in the Charter of Human Rights and Responsibilities Act 2006.
3 Scrutiny of Acts and Regulations Committee
Public Holidays Amendment Bill 2019
Bill Information
Member Hon Adem Somyurek MP Introduction Date 21 March 2019 Portfolio Small Business Second Reading Date 30 April 2019 Summary
The Bill amends the Public Holidays Act 1993 (the Act). Its purpose is to amend the Act to make enshrine three public holidays in legislation rather than introduce them by gazettal. The Bill provides for Easter Sunday and the Friday before the AFL Grand Final as public holidays. It also provides for 25 December (Christmas Day) as a public holiday when it falls on a weekend.2
The Committee notes the comments in the Second Reading Speech: ‐ ‘This Bill gives Victorians certainty with regards to Victoria’s public holiday arrangements by removing anomalies that are confusing for businesses and employees, particularly with regard to the treatment of Christmas Day when it falls on a weekend.’
Comments under the PCA
The Committee makes no comment on the Bill with respect to its terms of reference under section 17 of the Parliamentary Committees Act 2003.
Charter Issues
The Public Holidays Amendment Bill 2019 is compatible with the rights set out in the Charter of Human Rights and Responsibilities Act 2006.
2 Note the Explanatory Memorandum: ‐ ‘The amendment does not affect the existing public holidays on Christmas Day when it falls on a weekday. The amendment also does not affect the existing public holidays on the Monday after Christmas Day when 25 December (Christmas Day) is a Saturday or the Tuesday after Christmas Day when 25 December (Christmas Day) is a Sunday.
4 Ministerial Correspondence
The Committee received responses on the Bills listed below.
Responses are reproduced here – please refer to Appendix 3 for additional information.
Sale of Land Amendment Bill 2019
5
Appendix 1 Index of Bills in 2019
Alert Digest Nos. Audit Amendment Bill 2018 1, 2 Energy Legislation Amendment (Victorian Default Offer) Bill 2019 3 Essential Services Commission Amendment (Governance, Procedural and Administrative Improvements) Bill 2019 3 Fair Work (Commonwealth Powers) Amendment Bill 2018 2 Guardianship and Administration Bill 2018 1 Integrity and Accountability Legislation Amendment (Public Interest Disclosures, Oversight and Independence) Bill 2018 1, 2 Justice Legislation Amendment (Police and Other Matters) Bill 2019 2 Justice Legislation Miscellaneous Amendment Act 2018 (House Amendment) 1, 5 Major Transport Projects Facilitation Amendment Bill 2019 4 Open Courts and Other Acts Amendment Bill 2019 3, 4 Owner Drivers and Forestry Contractors Amendment Bill 2019 6 Parliamentary Committees Amendment Bill 2019 2 Primary Industries Legislation Amendment Bill 2019 4 Professional Engineers Registration Bill 2019 4, 5 Public Health and Wellbeing Amendment Bill 2019 6 Public Holidays Amendment Bill 2019 6 Safe Patient Care (Nurse to Patient and Midwife to Patient Ratios) Amendment Bill 2018 1 Sale of Land Amendment Bill 2019 5, 6 Spent Convictions Bill 2019 2, 3 Statute Law Revision Bill 2018 3 Transport Legislation Amendment (Better Roads Victoria and Other Amendments) Bill 2018 2 Victorian Independent Remuneration Tribunal and Improving Parliamentary Standards Bill 2019 2, 3 Water and Catchment Legislation Amendment Bill 2019 5 West Gate Tunnel (Truck Bans and Traffic Management) Bill 2019 3, 5
9 Scrutiny of Acts and Regulations Committee
10 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 Justice Legislation Miscellaneous Amendment Act 2018 (House Amendment) 1, 5 Primary Industries Legislation Amendment Bill 2019 4 Sale of Land Amendment Bill 2019 5, 6 Spent Convictions Bill 2019 2, 3 West Gate Tunnel (Truck Bans and Traffic Management) Bill 2019 3, 5
(ii) makes rights, freedoms or obligations dependent upon insufficiently defined administrative powers; Professional Engineers Registration Bill 2019 4, 5
(viii) is incompatible with the human rights set out in the Charter of Human Rights and Responsibilities Audit Amendment Bill 2018 1, 2 Integrity and Accountability Legislation Amendment (Public Interest Disclosures, Oversight and Independence) Bill 2018 1, 2 Justice Legislation Miscellaneous Amendment Act 2018 (House Amendment) 1, 5 Open Courts and Other Acts Amendment Bill 2019 3, 4 Primary Industries Legislation Amendment Bill 2019 4 Professional Engineers Registration Bill 2019 4, 5 Sale of Land Amendment Bill 2019 5, 6 Spent Convictions Bill 2019 2, 3 Victorian Independent Remuneration Tribunal and Improving Parliamentary Standards Bill 2019 2, 3 West Gate Tunnel (Truck Bans and Traffic Management) Bill 2019 3, 5
Section 17(b)
(i) and (ii) repeals, alters or varies the jurisdiction of the Supreme Court Victorian Independent Remuneration Tribunal and Improving Parliamentary Standards Bill 2019 2, 3
11 Scrutiny of Acts and Regulations Committee
12 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 Audit Amendment Bill 2018 Special Minister of State 05.02.19 1 of 2019 14.02.19 2 of 2019 Integrity and Accountability Special Minister of State 05.02.19 1 of 2019 Legislation Amendment (Public 14.02.19 2 of 2019 Interest Disclosures, Oversight and Independence) Bill 2018 Justice Legislation Miscellaneous Attorney‐General 05.02.19 1 of 2019 Amendment Act 2018 (House 27.03.19 5 of 2019 Amendment) Spent Convictions Bill 2019 Fiona Patten MP 19.02.19 2 of 2019 21.02.19 3 of 2019 Victorian Independent Special Minister of State 19.02.19 2 of 2019 Remuneration Tribunal and 01.03.19 3 of 2019 Improving Parliamentary Standards Bill 2019 Open Courts and Other Acts Attorney‐General 05.03.19 3 of 2019 Amendment Bill 2019 18.03.19 4 of 2019 West Gate Tunnel (Truck Bans and Transport Infrastructure 05.03.19 3 of 2019 Traffic Management) Bill 2019 28.03.19 5 of 2019 Primary Industries Legislation Agriculture 19.03.19 4 of 2019 Amendment Bill 2019 Fishing and Boating 19.03.19 4 of 2019 Professional Engineers Registration Treasurer 19.03.19 4 of 2019 Bill 2019 23.04.19 5 of 2019 Sale of Land Amendment Bill 2019 Consumer Affairs, Gaming and 5 of 2019 30.04.19 Liquor Regulation 6 of 2019 23.05.19
13 Scrutiny of Acts and Regulations Committee
14 Appendix 4 Statutory Rules and Legislative Instruments considered
The following Statutory Rules were considered by the Regulation Review Subcommittee on 22 May 2019.
Statutory Rules Series 2018
SR No. 136 – Family Violence Protection (Information Sharing) Amendment (Risk Management) Regulations 2018 SR No. 137 – Subordinate Legislation (Legislative Instruments) Further Amendment Regulations 2018 SR No. 155 – Dangerous Goods (Transport by Road or Rail) Regulations 2018 SR No. 174 – Surveillance Devices Further Amendment Regulations 2018 SR No. 179 – Labour Hire Licensing Regulations 2018 SR No. 187 – Victorian Civil and Administrative Tribunal (Miscellaneous Amendments) Rules 2018 SR No. 189 – Surveying (Cadastral Surveys) Amendment Regulations 2018 SR No. 190 – Survey Co‐ordination Amendment Regulations 2018 SR No. 191 – Subordinate Legislation (Accident Towing Services Regulations 2008) Extension Regulations 2018 SR No. 192 – Service Victoria (Transfer of Functions) Regulations 2018
Legislative Instruments 2018
Child Safe Standards Determining Categories and Fixing Fees for Game Meat Processing Facility Licences Family Violence Risk Assessment and Risk Management Framework Fixing Fees for Approval of Game Meat Field Harvesters Notice – Lord Mayoral, Deputy Lord Mayoral and Councillor Allowances Alteration – Greater Geelong City Council Notice – Lord Mayoral, Deputy Lord Mayoral and Councillor Allowances Alteration – Melbourne City Council Order in Council – Declaration of the Dingo to be Unprotected Wildlife in Certain Areas of Victoria
Environment Protection Act 1970 State Environment Protection Policy (Waters) 2018 Variation of Waste Management Policy (Solid Fuel Heating)
Part 4A – Subordinate Legislation Act 1994 Conditions under Section 220D of the Transport (Compliance and Miscellaneous) Act 1983
Statutory Rules Series 2019
SR No. 1 – Gambling Amendment (Cashless Gaming) Regulations 2019
15 Scrutiny of Acts and Regulations Committee
SR No. 2 – Subordinate Legislation (Melbourne City Link Regulations 2009) Extension Regulations 2019 SR No. 3 – Children, Youth and Families (Children’s Court Family Division) Amendment (Witness Summons) Rules 2019 SR No. 4 – Oaths and Affirmations (Affidavits, Statutory Declarations and Certifications) Amendment Regulations 2019 SR No. 5 – Oaths and Affirmations Transitional Regulations 2019 SR No. 6 – Unclaimed Money Regulations 2019 SR No. 7 – County Court (Chapter III Serious Offenders Amendment) Rules 2019 SR No. 10 – Major Crime (Investigative Powers) Amendment Regulations 2019
Legislative Instruments 2019
Amendment of Business Code of Practice – Code of Practice for the Operation of Pet Shops Ticket‐In Ticket‐Out (TITO) and Card Based Cashless (CBC) Gaming in Gaming Venues Technical Standards Version 1.0
16