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Legislation Review Digest No.10 of 2016

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Legislation Review Digest No.10 of 2016 PARLIAMENT OF NEW SOUTH WALES Legislation Review Committee LEGISLATION REVIEW DIGEST No. 21/56 – 2 August 2016 New South Wales Parliamentary Library cataloguing-in-publication data: New South Wales. Parliament. Legislative Assembly. Legislation Review Committee Legislation Review Digest, Legislation Review Committee, Parliament NSW [Sydney, NSW]: The Committee, 2016, 25p 30 cm Chair: Mr Michael Johnsen MP 2 August 2016 ISSN 1448-6954 1. Legislation Review Committee – New South Wales 2. Legislation Review Digest No. 21 of 56 I Title. II Series: New South Wales. Parliament. Legislation Review Committee Digest; No. 21 of 56 The motto of the coat of arms for the state of New South Wales is “Orta recens quam pura nites”. It is written in Latin and means “newly risen, how brightly you shine”. LEGISLATION REVIEW COMMITTEE Contents Membership _____________________________________________________________ ii Guide to the Digest _______________________________________________________ iii Conclusions ______________________________________________________________iv PART ONE – BILLS ___________________________________________________ 1 1. ADOPTION AMENDMENT (INSTITUTE OF OPEN ADOPTION STUDIES) BILL 2016 _ 1 2. APPROPRIATION BILL 2016; APPROPRIATION (PARLIAMENT) BILL 2016; STATE REVENUE LEGISLATION AMENDMENT (BUDGET MEASURES) BILL 2016 ______ 3 3. CHILDREN AND YOUNG PERSONS (CARE AND PROTECTION) AMENDMENT (PROTECTION FROM SERIOUS OFFENDERS) BILL 2016* ___________________ 5 4. FINES AMENDMENT (ELECTRONIC PENALTY NOTICE) BILL 2016 ____________ 8 5. LOCAL GOVERNMENT AMENDMENT (GOVERNANCE AND PLANNING) BILL 2016 9 6. LOCAL GOVERNMENT AND ELECTIONS LEGISLATION AMENDMENT (INTEGRITY) BILL 2016 ____________________________________________________ 12 7. TECHNICAL AND FURTHER EDUCATION COMMISSION AMENDMENT (FUNDING GUARANTEE FOR TAFE) BILL 2016* _________________________________ 15 APPENDIX ONE – FUNCTIONS OF THE COMMITTEE _________________________ 16 2 AUGUST 2016 i LEGISLATION REVIEW COMMITTEE Membership CHAIR Mr Michael Johnsen MP, Member for Upper Hunter DEPUTY CHAIR Mr Lee Evans MP, Member for Heathcote MEMBERS Ms Melanie Gibbons MP, Member for Holsworthy Mr Alister Henskens SC MP, Member for Ku-ring-gai Mr David Mehan MP, Member for The Entrance The Hon Shaoquett Moselmane MLC The Hon Gregory Pearce MLC Mr David Shoebridge MLC CONTACT DETAILS Legislation Review Committee Parliament of New South Wales Macquarie Street Sydney NSW 2000 TELEPHONE 02 9230 2096 / 02 9230 3382 FACSIMILE 02 9230 3309 E-MAIL [email protected] URL www.parliament.nsw.gov.au/lrc ii DIGEST 21/56 LEGISLATION REVIEW COMMITTEE Guide to the Digest COMMENT ON BILLS This section contains the Legislation Review Committee’s reports on Bills introduced into Parliament on which the Committee has commented against one or more of the five criteria for scrutiny set out in s 8A(1)(b) of the Legislation Review Act 1987. COMMENT ON REGULATIONS The Committee considers all regulations made and normally raises any concerns with the Minister in writing. When it has received the Minister’s reply, or if no reply is received after 3 months, the Committee publishes this correspondence in the Digest. The Committee may also inquire further into a regulation. If it continues to have significant concerns regarding a regulation following its consideration, it may include a report in the Digest drawing the regulation to the Parliament’s “special attention”. The criteria for the Committee’s consideration of regulations are set out in s 9 of the Legislation Review Act 1987. Regulations for the special attention of Parliament When required, this section contains any reports on regulations subject to disallowance to which the Committee wishes to draw the special attention of Parliament. 2 AUGUST 2016 iii LEGISLATION REVIEW COMMITTEE Conclusions PART ONE – BILLS 1. ADOPTION AMENDMENT (INSTITUTE OF OPEN ADOPTION STUDIES) BILL 2016 Trespasses on personal rights and liberties: s 8A(1)(b)(i) of the LRA The Committee acknowledges that allowing a government agency to disclose information to a research organisation about adults and children involved in adoption and out-of-home care could impact on their right to privacy. However, the Committee notes that the Bill contains a number of safeguards to alleviate this risk. The Committee also notes that the NSW Privacy Commissioner supports the Bill and that the research organisation must comply with certain provisions of the NSW privacy legislation. The research will help to facilitate adoption processes to ensure permanency and security for children in out-of-home care. The Committee considers the rights of children to have stable and permanent family arrangements outweigh any privacy risks in this instance. In the Committee’s view, the privacy safeguards provided for in the Bill are also appropriate. 2. APPROPRIATION BILL 2016; APPROPRIATION (PARLIAMENT) BILL 2016; STATE REVENUE LEGISLATION AMENDMENT (BUDGET MEASURES) BILL 2016 The Committee makes no comment on these Bills in respect of issues set out in s8A of the Legislation Review Act 1987. 3. CHILDREN AND YOUNG PERSONS (CARE AND PROTECTION) AMENDMENT (PROTECTION FROM SERIOUS OFFENDERS) BILL 2016* Trespasses on personal rights and liberties: s 8A(1)(b)(i) of the LRA Protection of the family The Bill may impact on the right to protection of the family by requiring the State to remove future children from a parent who has committed a serious violent crime against their other child. However, in the Committee’s view, the health, welfare and best interests of children must outweigh the protection of the family unit in instances such as those identified in the Bill. In particular, the Committee highlights that the Bill provides scope for the relevant government department to allow children to remain with their parent if it is appropriate in the circumstances. A parent who has a child removed or who is subject to a restraining notice can also apply to the Children’s Court for the return of their child and revocation of the restraining notice. The Committee makes no further comments. 4. FINES AMENDMENT (ELECTRONIC PENALTY NOTICE) BILL 2016 Inappropriately delegates legislative powers: s 8A(1)(b)(iv) of the LRA Commencement by proclamation The Committee prefers legislation to commence on assent or on a fixed date. However, the Committee notes that the Bill seeks to introduce a new format for the issuing of penalty notices and considers flexibility as to its commencement may be required. The Committee makes no further comment. iv DIGEST 21/56 LEGISLATION REVIEW COMMITTEE 5. LOCAL GOVERNMENT AMENDMENT (GOVERNANCE AND PLANNING) BILL 2016 Inappropriately delegates legislative powers: s 8A(1)(b)(iv) of the LRA Commencement by proclamation The Committee notes the provisions which commence on a day or days to be appointed by proclamation. Commencement by proclamation enables the Executive to commence an Act on day or days of its choosing, or not at all. The Committee notes the Minister’s comments in the Second Reading Speech which outline that it is the Government intention to commence the Bill after stakeholder consultation and finalisation of the new model code of conduct. The Committee makes no further comment. 6. LOCAL GOVERNMENT AND ELECTIONS LEGISLATION AMENDMENT (INTEGRITY) BILL 2016 Trespasses on personal rights and liberties: s 8A(1)(b)(i) of the LRA Setting limits on the amount a person may donate to a political party, Member or candidate may impact on the implied freedom of political communication in the Commonwealth Constitution by restricting an individual’s ability to support their preferred party or candidate. However, on balance, the Committee believes the measures in the Bill are appropriate in the circumstances to ensure the integrity of local government decision-making and to minimise the risk of corruption. The Committee also notes that similar provisions apply to State elections. The Committee makes no further comments. Right to take part in public affairs The Bill may impact on the right to take part in public affairs by extending the kinds of offences that would disqualify a person from being elected to public office and the disqualification timeframe. The Committee notes that many offences punishable by imprisonment for five years or more have a range of offending behaviour. Some offenders may receive a much more lenient sentence, including a non-custodial sentence. It is not apparent from the Bill that this diversity in circumstances and sentencing is taken into consideration in determining whether or not a particular person should be disqualified from civic office. The Committee notes that once the disqualification timeframe has passed, an affected individual may be eligible to seek election to local government. The Committee also acknowledges that the Bill seeks to restore community confidence in local government. Nevertheless, the Committee refers the proposed amendments to section 275 of the Local Government Act 1993 to Parliament for consideration about whether including all offences punishable by imprisonment for five years or more as disqualifying offences and extending the disqualification timeframe may unfairly impact on the right to take part in public affairs in some circumstances. 7. TECHNICAL AND FURTHER EDUCATION COMMISSION AMENDMENT (FUNDING GUARANTEE FOR TAFE) BILL 2016* The Committee makes no comment on the Bill in respect of issues set out in s8A of the Legislation Review Act 1987. 2 AUGUST 2016 v LEGISLATION REVIEW DIGEST ADOPTION AMENDMENT (INSTITUTE OF OPEN
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