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 Hasngs Mrs Bev McArthur MLC Ms Fiona Paen MLC Ms Nina Taylor MLC Member for Western Victoria Member for Northern Metropolitan Member for Southern 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 Protecon 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 Constuon 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 Constuon 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 Constuon Act 1975, but an issue is raised as to the jurisdicon of the Supreme Court, as to the full implicaons of that issue; Parliamentary Commiees Act 2003, secon 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.