No. 5 of 2015 - Parliament of Victoria€¦ · Alert Digest No. 5 of 2015 Appropriation (2015‐2016) Bill 2015 1 Appropriation (Parliament 2015‐2016) Bill 2015 2 Court Services

crutiny of Actsand Regulations Committee

58th Parliament

No. 5 of 2015

Tuesday, 26 May 2015on the following Bills

Appropria on (2015-2016) Bill 2015

Appropria on (Parliament 2015-2016)Bill 2015

Court Services Victoria and Other ActsAmendment Bill 2015

State Taxa on Acts Amendment Bill 2015

Wrongs Amendment (Prisoner RelatedCompensa on) Bill 2015

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 privacywithin 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

Terms of Reference - Scrutiny of Bills

The Committee

Commi ee StaffMr Andrew Homer, Senior Legal AdviserMs Helen Mason, Legal Adviser - Regula onsMr Simon Dinsbergs, Business Support OfficerMs Sonya Caruana, Office ManagerProfessor Jeremy Gans, Human Rights Adviser

Parliament House, Spring StreetMelbourne Victoria 3002

Telephone: (03) 8682 2895Facsimilie: (03) 8682 2858Email: [email protected]: www.parliament.vic.gov.au/sarc

Mr Josh Bull MLAMember for Sunbury

Hon. Richard Dalla-Riva MLCDeputy Chairperson

Member for Eastern Metropolitan

Ms Lizzie Blandthorn MLAChairperson

Member for Pascoe Vale

Ms Emma Kealy MLAMember for Lowan

Mr Steve Dimopoulos MLAMember for Oakleigh

Mr John Pesu o MLAMember for Hawthorn

Ms Sonya Kilkenny MLAMember for Carrum

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T a b l e o f C o n t e n t s

Page Nos.

Alert Digest No. 5 of 2015

Appropriation (2015‐2016) Bill 2015 1

Appropriation (Parliament 2015‐2016) Bill 2015 2

Court Services Victoria and Other Acts Amendment Bill 2015 3

State Taxation Acts Amendment Bill 2015 4

Wrongs Amendment (Prisoner Related Compensation) Bill 2015 7

Appendices

1 – Index of Bills in 2015 13

2 – Committee Comments classified by Terms of Reference 15

3 – Ministerial Correspondence 2015 17

4 – Statutory Rules and Legislative Instruments considered 19

Parliament of Victoria, Australia

Scrutiny of Acts and Regulations Committee

Reports to Parliament Alert Digests 2015

ISBN 978 0 7311 3077 4

ISSN 1440‐2939

Order to be Published

By Authority. Government Printer for the State of Victoria. Parliamentary Paper No. 17, Session 2014‐2015

ii

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 been 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

‘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 2014 one penalty unit equals $147.61 )

‘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

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A l e r t D i g e s t N o . 5 o f 2 0 1 5

Appropriation (2015‐2016) Bill 2015

Introduced 5 May 2015 Second Reading Speech 5 May 2015 House Legislative Assembly Member introducing Bill Hon. Jacinta Allan MLA Portfolio responsibility Treasurer

Purpose

The Bill is for an Act to provide appropriation for payments of certain sums out of the consolidated revenue for the ordinary annual services of the Government for the financial year 2015‐2016.

Charter report

The Appropriation (2015‐2016) Bill 2015 is compatible with the rights set out in the Charter of Human Rights and Responsibilities.

The Committee makes no further comment


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Appropriation (Parliament 2015‐2016) Bill 2015

Introduced 5 May 2015 Second Reading Speech 5 May 2015 House Legislative Assembly Member introducing Bill Hon. Jacinta Allan MLA Portfolio responsibility Treasurer

Purpose

The Bill is for an Act to provide appropriation for payments of certain sums out of the consolidated revenue to the Parliament for the financial year 2015‐2016.

Charter report

The Appropriation (Parliament 2015‐2016) Bill 2015 is compatible with the rights set out in the Charter of Human Rights and Responsibilities.



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Court Services Victoria and Other Acts Amendment Bill 2015

Introduced 5 May 2015 Second Reading Speech 6 May 2015 House Legislative Assembly Member introducing Bill Hon. Martin Pakula MLA Portfolio responsibility Attorney‐General

Purpose

The Bill amends the :

Court Services Victoria Act 2014 to make provision for the employment and functions of the Chief Executive Officer of the Judicial College of Victoria and repeal a redundant definition of State Services Authority.

Financial Management Act 1994 to provide Court Services Victoria (CSV) with the same budget flexibility as would apply if the CSV were a government department or authority.

Independent Broad‐based Anti‐corruption Commission Act 2011 to include the Chief Executive Officer of CSV in the definition of ‘relevant principal officer’ in relation to disclosure of information made to the Independent Broad‐based Anti‐corruption Commission (IBAC), and disclosure of information to the CEO of CSV concerning investigations made by the IBAC.1

Charter report

The Court Services Victoria and Other Acts Amendment Bill 2015 is compatible with the rights set out in the Charter of Human Rights and Responsibilities.


1 The IBAC may disclose any information it has acquired in the course of, the performance of its duties and functions or

the exercise of its powers under the IBAC Act or any other Act to the CEO of CSV if the IBAC considers that the information is relevant to the performance of the duties and functions or the exercise of powers of the CEO of CSV; and the CEO of CSV will be permitted to notify the IBAC of any matter that the CEO believes on reasonable grounds constitutes corrupt conduct, despite any duty of secrecy or other restriction on disclosure.


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State Taxation Acts Amendment Bill 2015

Introduced 5 May 2015 Second Reading Speech 7 May 2015 House Legislative Assembly Member introducing Bill Hon. Tim Pallas MLA Portfolio responsibility Treasurer

Purpose

The Bill amends the:

Duties Act 2000 (‘the Act’) to:

clarify definitions of ‘private company’, ‘shares’ and ‘units’ for the purposes of the definition of ‘listed company’ and ‘listed trust’.

update references in the Act to Commonwealth legislation in relation to Seniors Health Cards and private health insurance. The revisions include two retrospective provisions. (Refer to Content below)

clarify the circumstances in which a person makes a relevant acquisition in a landholder for the purposes of Part 2 of Chapter 3 of the Act.

exempt mobile plant and special purpose vehicles (type P) from motor vehicle duty and to update definitions for the purposes of the motor vehicle duty exemption for primary producer vehicles.

impose an additional 3% stamp duty surcharge in respect of transfers of residential property to foreign purchasers (whether natural persons, trusts or corporations), from 1 July 2015. (Refer to Charter report below)

Land Tax Act 2005 to impose an additional 0.5% land tax surcharge on land owned by absentee owners from 1 July 2016. (Refer to Charter report below)

Taxation Administration Act 1997 in relation to tax offsets and tax refunds; and to impose penalty tax on a person who fails to notify the Commissioner that the person is an absentee owner.

Back to Work Act 2015 to provide that liabilities arising under this Act are not subject to the tax offset against tax refunds provisions otherwise provided in the Bill .

Content

Retrospective application – Statute law revision concerning references in Commonwealth legislation – Duties Act 2000, sections 58(1)(a)(ii) and 196(a)

Extract from the explanatory memorandum:

Section 4, which amends section 58(1)(a)(ii) of the Duties Act 2000, operates retrospectively from 1 July 2011. This amendment rectifies an incorrect reference in that section to a section of the Social Security Act 1991 of the Commonwealth. Section 58(1)(a)(ii) defines an eligible pensioner for the purposes of the pensioner exemption and concession from duty to include a person issued with a ‘Seniors Health Card’ under that Commonwealth Act. This amending provision is intended to be made retrospective to 1 July 2011, which was the date the incorrect legislative reference was inserted into the Duties Act 2000.


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Section 9, which amends section 196(a) of the Duties Act 2000, operates retrospectively from 1 April 2007. This amendment rectifies an incorrect reference in section 196(a) to the National Insurance Act 1953 of the Commonwealth. Section 196(a) defines medical benefits insurance (private health insurance) for the purposes of an exemption from insurance duty. The term medical benefits insurance is currently defined by reference to entities registered under the National Insurance Act 1953 of the Commonwealth. However, that Act has been replaced by the Private Health Insurance Act 2007 of the Commonwealth. This amending provision is intended to be made retrospective to 1 April 2007, when the Private Health Insurance Act 2007 of the Commonwealth commenced.

In each case, the law has been applied in accordance with its intended operation to ensure that taxpayers were not disadvantaged by the technical defects in the legislation. The retrospective operation of these amendments will give legal effect to the duty exemptions and/or concessions provided under these provisions.

The Committee accepts that the retrospective amendments are necessary statute law revision amendments that do not appear to have an adverse impact on any person.

Charter report

Equality – Foreign citizens – Higher taxes for purchase and absentee ownership

Summary: The Committee refers to Parliament for its consideration the question of whether or not clauses 16, 20 and 29(2), by imposing higher property taxes on some foreign citizens than they impose on equivalently placed Australian and New Zealand citizens, reasonably limit the Charter’s rights against discrimination on the basis of nationality to achieve the purpose of ensuring that a larger number of local homebuyers remain competitive in the housing market.

The Committee notes that:

clauses 16 and 20 (inserting new sections 18A(3) and 28A into the Duties Act 2000) impose an additional 3% duty on dutiable transfers of intended or current residential property; and

clause 29(2) (amending existing s. 35 of the Land Tax Act 2005) lifts the land tax rate by 0.5% for land owned by a person who does not ordinarily reside in Australia and who was absent from Australia at the end of (or for six months during) the previous tax year;

where the purchaser or owner (or a controlling interest in a corporate or trust purchaser or owner) is neither an Australian citizen, an eligible New Zealand citizen nor the holder of a visa permitting an indefinite stay in Australia.

The Committee observes that the Charter’s equality rights include rights against discrimination on the basis of nationality.2 The Statement of Compatibility remarks:

The right to recognition and equality before the law is engaged by provisions that define a foreign purchaser as liable for the duty surcharge and includes criteria relating to nationality in establishing liability for the land tax surcharge. To the extent that the bill differentiates between taxpayers' liability on the basis of a person's nationality, it limits a person's right to recognition and equality based on the person's race.

This differentiation is central to the purpose of the proposed measures. It reflects the purpose of the surcharges, which is to increase the entry cost of foreign purchasers in the Victorian residential housing market and to place an additional holding cost on speculative

2 Charter s. 8(3). See Charter s. 3(1) (definition of ‘discrimination’); Equal Opportunity Act 2010, s. 6(m) and s. 4(1)

(definition of ‘race’, para(c).)


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absentee land owners. These measures assist in balancing housing affordability to ensure that a larger number of local homebuyers are able to remain competitive in the market.

There is a direct relationship between the limitation and the public purpose of improving the affordability of housing in Victoria. The contributions to state revenue made through the surcharges will flow through to the Victorian economy.

The Committee observes that:

clauses 16 and 20 increase stamp duty for Victorian housing for non‐Australians and non‐New Zealanders (other than permanent residents), and for their dependants, but will not increase stamp duty for non‐local Australians and New Zealanders who purchase Victorian houses.

clause 29(2) may increase land tax for foreign absentee owners who own Victorian land for non‐speculative purposes (e.g. purchasing property to be used as a secondary residence), but will not increase land tax for Australians and New Zealanders (including absentees) who own such land for speculative purposes (e.g. as an investment property).

the Statement of Compatibility does not argue that clauses 16, 20 and 29(2) fall within Charter s. 8(4)’s provision for measures taken to assist or advance persons disadvantaged because of existing or past discrimination.

The Committee refers to Parliament for its consideration the question of whether or not clauses 16, 20 and 29(2), by imposing higher property taxes on some foreign citizens than they impose on equivalently placed Australian and New Zealand citizens, reasonably limit the Charter’s rights against discrimination on the basis of nationality to achieve the purpose of ensuring that a larger number of local homebuyers remain competitive in the housing market.



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Wrongs Amendment (Prisoner Related Compensation) Bill 2015

Introduced 5 May 2015 Second Reading Speech 6 May 2015 House Legislative Assembly Member introducing Bill Hon. Martin Pakula MLA Portfolio responsibility Attorney‐General

Purpose

The Bill amends the Wrongs Act 1958 (‘the Act’) to insert a new Part VBAA. The new Part requires the jury or the court (as the case requires) to reduce the award of damages for non‐economic loss in respect of mental harm caused to a person arising from the death or injury of a prisoner, where the claimant has ‘profit‐motivated’ criminal convictions. (Refer to Content and the Charter report below)

The new Part VBAA does not apply to a claimant:

where the claim relates to a death or injury to a person held on remand or in a police cell.

who is a minor or child.

with only juvenile convictions.

Extract from the statement of compatibility:

The Bill will insert a new Part VBAA into the Wrongs Act 1958, that will apply to awards of damages for non‐economic loss for psychiatric injury in relation to the injury or death of a prisoner in custody. The Bill provides that in such a case the court or jury must consider whether the claimant has criminal convictions, and, if the claimant does have criminal convictions, must reduce the award of damages with regard to a range of factors, including: the number and severity of offences, the relationship between the claimant and the injured prisoner, and whether the offences of the prisoner and the claimant were related in some way. Where a claimant has been convicted of a 'profit‐motivated offence', the award of damages must be reduced by no less than 90 per cent.

The new Part VBAA will only apply to convictions for offences that occurred when the claimant was an adult, and will operate retroactively, so that it will apply to proceedings that have commenced but not yet been determined at the time the Bill commences.

Content

Application irrespective of when causation occurred – Future operation based on past events – Act to apply to pending proceedings – Whether retrospective application adversely impacts person – Costs thrown away for fruitless litigation

The Bill includes a transitional provision providing that the amendments apply irrespective of when the act or omission causing death or injury giving rise to the claim for damages occurred. The provision also provides that the amendments apply to proceedings commenced but not finally determined. (new section 28LAH)

The Committee notes that there is a distinction to be made between an enactment that takes into account past facts or conduct as a basis for future operation and on the other hand an enactment that alters past rights based on past events. A recent example of an enactment that has future operation based on past facts is the Working with Children Act 2005. That legislation takes into account past convictions in assessments of future suitability to engage in child related work.


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The matter concerning the application of the enactment to pending proceedings is less clear. The Committee considers that an applicant may be disadvantaged in respect to legal costs incurred in bringing the proceedings. The Committee notes the passage of judgement on Mason JA in Bawn Pty. Ltd. V Metropolitan Meat Industry Board (1971) 92 WN (NSW) 823 at 8243 where this matter is considered.

The Committee will request further information from the Attorney‐General whether any person with a pending proceedings will be disadvantaged in respect to costs thrown away in circumstances where subsequent legislative change renders the proceedings fruitless or substantially different to accrued rights existing prior to the amendment.

Charter report

Fair hearing – Double jeopardy – Retrospective criminal law – Mandatory limits on some compensation claims by some criminals – Application to current claims and past criminals

Summary: The Statement of Compatibility remarks that the Bill may be partially incompatible with the human rights as set out in the charter. The Committee refers to Parliament for its consideration the question of whether or not clauses 28LAF(1)(b)(ii) and 28LAH, which largely restrict the compensation a profit‐motivated offender can receive from anyone who unlawfully caused a prisoner’s death or injury, are, in their application to current claims and past offenders, reasonable limits on the Charter rights of those offenders to a fair hearing of those civil claims and not to be punished twice or retrospectively for their crimes.

The Committee notes that clause 3, inserting a new section 28LAF(1)(b)(ii), provides that a court or jury must reduce the amount of damages for pain or suffering, loss of amenities of life and loss of enjoyment of life due to mental harm caused by the death or injury of a prisoner by 90% where the claimant has been convicted of a ‘profit‐motivated offence’4. The Committee observes that new section 28LAF(1)(b)(ii) largely restricts the compensation a profit‐motivated offender can receive from a person who negligently causes a prisoner’s death or injury to financial costs to the offender (if any) resulting from that death or injury. The Committee also observes that new section 28LAF(1)(b)(ii) applies regardless of whether or not there is any connection between the past offending and the civil claim.

The Committee notes that neither the Charter nor other Victorian laws bars discrimination against criminals. As the Statement of Compatibility remarks:

In relation to the rights to freedom from discrimination, section 8(2) and (3), 'discrimination' is defined in section 3 of the charter as discrimination within the meaning of the Equal Opportunity Act 2010, on the basis of an attribute set out in section 6 of that act. In the case

3 Once it is accepted that the general principle of construction recognizes that a statute may operate retrospectively so

as to disturb and alter substantive rights which accrued before the commencement of the statute, provided that the statutory intention in that behalf is manifested with sufficient clarity, it is not easy to see why any different rule should be applied to the possible operation of the statute on rights which have already accrued, but are the subject of pending proceedings, at the time when the statute commences to operate. True it is that in the latter case an added element of injustice may arise in the form of a liability to costs in circumstances in which the award of costs lies not in the discretion of the court, but follows automatically the result of the litigation. Nevertheless, it does not seem that the injustice which will or may result from an interference with substantive rights in pending suits is in general so much greater that a stronger presumptive rule should be applied in such a case, in particular a rule which, according to its formulation, insists on a specific or explicit reference to rights in pending actions as an essential preliminary to the application of the new statute to those rights.

4 Profit‐motivated offences are defined by reference to the list of automatic forfeiture and civil forfeiture offences in Schedule 2 of the Confiscation Act 1997. The offences include drug trafficking, extortion, deceptive recruiting for sexual services, blackmail, armed robbery and handling stolen goods. The property offences are subject to a threshold of property worth over $50,000


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of the bill, it is sufficient to note that the attributes set out in section 6 do not include a person's criminal record, criminal history or prior criminal activity. Accordingly, although it proposes to treat certain claimants unfavourably on the basis of having criminal convictions, this does not constitute discrimination under the charter.

Nevertheless, the Statement of Compatibility concludes that the Bill ‘may be partially incompatible with the human rights as set out in the charter’. The Committee observes that the application of the new section 28LAF(1)(b)(ii) to current claims and past criminals may engage the Charter rights of offenders to a fair hearing of civil claims and against double and retrospective punishment.

The Committee notes that new section 28LAH(2), which provides that new section 28LAF(1)(b)(ii) applies to claims currently before the courts, may engage the Charter right of all parties to civil proceedings (including convicted criminals bringing civil claims against the state or others) to a fair hearing before an independent court or tribunal.5 The Statement of Compatibility remarks:

The fair hearing right mandates the judicial determination of what civil rights and liabilities exist as a matter of substantive law. It does not prevent the state from altering the content of those civil rights in the substantive law.

The bill affects the substance of certain claims brought under the Wrongs Act, but does not affect the determination of such a claim. Moreover, the exercise of the court or jury's discretion to reduce an award of damages occurs in accordance with the procedural guarantees of the court process. This includes (but is not limited to) the court's obligation, pursuant to section 6(2)(b) of the charter, to enforce and directly apply those charter rights that relate to court proceedings.

Therefore, the bill does not limit the right to a fair hearing under section 24(1) of the charter, even in circumstances where a court or jury exercises its discretion to make a 100 per cent reduction of the award of damages.

However, the Committee observes that the Statement of Compatibility remarks that ‘the type of case envisaged by the bill is highly unusual and therefore the number of affected claimants is very small.’ The Committee considers that, if new section 28LAH(2)’s practical impact is restricted to a particular current claim against the State of Victoria,6 then it may limit the Charter right of any profit‐motivated offender claimants in that matter to have their civil claim decided by a court.

The Committee also notes that new section 28LAF(1)(b)(ii), in its application to people who committed for‐profit offences before the Bill’s commencement, may engage the Charter’s rights against retrospective criminal punishment (and, in the case of people already punished for those offences, against double jeopardy.) The Statement of Compatibility remarks:

[I]t could be argued that the bill imposes a 'penalty' for the offence for the purposes of section 27(2) of the charter:

• a measure may be said to be a 'penalty' if it 'follows' a criminal conviction, that is, it is applied in respect of the conviction. Though the provisions of the bill only operate in circumstances where a person brings a claim for damages to which the bill applies, they 'follow' a criminal conviction in the sense that the discretion to reduce damages is triggered by, and is based largely upon, the claimant's criminal conviction;

• the bill permits — and in the case of a claimant convicted of a profit motivated offence, requires — a significant reduction in the damages to which they would otherwise be entitled;

5 Charter s. 24(1). 6 E.g. the negligence action referred to in Williams & Ors v State of Victoria & Anor [2012] VSC 585, [4]‐[5].


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• it could be argued that a key purpose of the bill is punishment of an offender.

…

Applying the broader interpretation employed by the European Court, the severity of any potential reduction could be used to support the argument that it constitutes 'punishment'. However, a narrower, formalistic interpretation of 'punishment' would emphasise that the bill applies only to civil proceedings in which the person convicted is the claimant, and is thus distinct both from the criminal justice (and related civil) process for the claimant's offending….

In my opinion this narrower interpretation is the one that should apply in Victoria. However, it would be open to a court to find that the bill imposes a 'punishment' for the purposes of section 26 of the charter.

The Committee observes that, if new section 28LAF(1)(b)(ii) amounts to a criminal punishment for the purposes of the Charter, then its compatibility with human rights depends on whether or not it satisfies the Charter’s test for reasonable limits on rights, which provides:7

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.

The Statement of Compatibility remarks:

[T]he protections against double jeopardy and imposition of retrospective penalties are fundamental rights recognised in Australia's common law, and are important aspects of the rule of law…

[T]he purpose of the bill is for the state (and through the state, Victorian taxpayers) to reduce its liability to compensate a claimant for non‐economic loss in relation to a claim of pure mental harm arising from the death or injury of a prisoner in custody, in circumstances where the claimant has previously wronged the state, having been committed of an offence or offences. This is an important purpose which reflects the community's interest in not having to fully compensate claimants who have previously profited at the community's expense, in the relevant circumstances;

[A] reduction in damages, to the extent that it limits the rights under sections 26 and 27(2), does so to a far lesser degree than the imposition of criminal law sanctions…

[T]he bill is carefully targeted to achieve its object, and applies only to a very narrow class of claimants and, within that class, to a very narrow class of claims…

In light of the above analysis, and in particular the potential limitation of the rights under sections 26 and 27(2) of the charter, I consider that, while there are strong grounds for concluding that the bill is compatible with the charter, the bill may be partially incompatible with the charter.

7 Charter s. 7(2).


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Nevertheless, I consider that the object of the bill justifies its enactment. In particular, I consider that it would be unjust and contrary to the public interest for the Victorian community, which has suffered as a result of a claimant's prior actions, to have to compensate such a claimant in the same way that it would compensate any other claimant. The government considers that this is an important public purpose and that the bill's provisions are sufficiently targeted to achieve that purpose.

The Committee notes that, while the Statement of Compatibility provides a justification for limiting certain civil claims against the state by criminals, it does not specifically address that new section 28LAF(1)(b)(ii)’s extension to people who have already been punished for their crimes and to civil claims against any private individuals who cause the death or injury of a prisoner.

The Committee refers to Parliament for its consideration the questions of:

• whether or not clause 28LAH(2), by extending a mandatory limitation on a highly unusual class of civil claims to current claims before Victoria’s courts, limits the Charter right of those current claimants who are profit‐motivated offenders to have those claims decided by a court;

• whether or not clause 28LAF(1)(b)(ii), in its application to claimants who committed profit‐motivated offences before the Bill commenced, regardless of any link between the earlier offending and the civil claim, limits the Charter rights of those offenders not to be punished twice or retrospectively for their crimes;

• if so, whether or not clauses 28LAF(1)(b)(ii) and 28LAH(2), which largely restrict the compensation a profit‐motivated offender can receive from anyone who has unlawfully caused a prisoner’s death or injury to any financial costs to the offender resulting from that death or injury, are reasonable limits to achieve the purpose of reducing the liability of the state to certain claimants who have previously wronged the state.


Committee Room 25 May 2015


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A p p e n d i x 1 I n d e x o f B i l l s i n 2 0 1 5

Alert Digest Nos.

Bills Appropriation (2015‐2016) Bill 2015 5 Appropriation (Parliament 2015‐2016) Bill 2015 5 Back to Work Bill 2014 1, 2 Cemeteries and Crematoria Amendment (Veterans Reform) Bill 2015 1 Court Services Victoria and Other Acts Amendment Bill 2015 5 Crimes Amendment (Repeal of Section 19A) Bill 2015 4 Domestic Animals Amendment Bill 2015 3 Education and Training Reform Amendment (Child Safe Schools) Bill 2015 2 Education and Training Reform Amendment (Funding of Non‐Government Schools) Bill 2014 1 Interpretation of Legislation Amendment Bill 2015 1 Jury Directions Bill 2015 3 Justice Legislation Amendment Bill 2015 4 Legal Profession Uniform Law Application Amendment Bill 2015 2 Limitation of Actions Amendment (Child Abuse) Bill 2015 2 Mental Health Amendment Bill 2015 3 National Parks Amendment (Prohibiting Cattle Grazing) Bill 2015 3 Parliamentary Committees and Inquiries Acts Amendment Bill 2015 1 Public Health and Wellbeing Amendment (Hairdressing Registration) Bill 2015 2 Regional Development Victoria Amendment (Jobs and Infrastructure) Bill 2015 4 Road Safety Road Rules 2009 (Overtaking Bicycles) Bill 2015 3 Sentencing Amendment (Correction of Sentencing Error) Bill 2015 4 State Taxation Acts Amendment Bill 2015 5 Statute Law Repeals Bill 2014 1 Statute Law Revision Bill 2014 1 Summary Offences Amendment (Move‐on Laws) Bill 2015 1 Veterans and Other Acts Amendment Bill 2015 2 Wrongs Amendment (Asbestos Related Claims) Bill 2014 1 Wrongs Amendment (Prisoner Related Compensation) Bill 2015 5


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A p p e n d i x 2 C o m m i t t e e C o m m e n t s c l a s s i f i e d

b y T e r m s o f R e f e r e n c e

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 on rights and freedoms

Wrongs Amendment (Prisoner Related Compensation) Bill 205 5 (viii) is incompatible with the human rights set out in the Charter of Human Rights and

Responsibilities Act 2006

Back to Work Bill 2014 1


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A p p e n d i x 3 M i n i s t e r i a l C o r r e s p o n d e n c e 2 0 1 5

Table of correspondence between the Committee and Ministers or Members during 2015

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 Committee

Letter / Minister’s Response

Alert Digest No. Issue raised /

Response Published

Back to Work Bill 2014 Treasurer 24‐02‐15 13‐03‐15

1 of 2015 2 of 2015

Wrongs Amendment (Prisoner Related Compensation) Bill 2015

Attorney‐General 26‐05‐15 5 of 2015


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A p p e n d i x 4 S t a t u t o r y R u l e s a n d L e g i s l a t i v e

I n s t r u m e n t s c o n s i d e r e d

The following Statutory Rules and legislative instruments were considered by the Regulation Review Subcommittee on 25 May 2015

Statutory Rules Series 2015

SR No. 12 – Fisheries (Fees, Royalties and Levies) Amendment Regulations 2015

SR No. 14 – Drugs, Poisons and Controlled Substances Amendment (Sodium Oxybate) Regulations 2015

SR No. 15 – Surveying (Registration Fees) Regulations 2015

SR No. 16 – Wildlife (State Game Reserves) Amendment Regulations 2015

SR No. 17 – Forests (Recreation) Amendment Regulations 2015

SR No. 18 – National Parks Amendment Regulations 2015

SR No. 19 – Racing (Specified Race‐Course) Amendment Regulations 2015

SR No. 20 – Heritage (General) Regulations 2015

SR No. 21 – Building Amendment Regulations 2015

SR No. 22 – Inquiries Regulations 2015

SR No. 24 – Victorian Civil and Administrative Tribunal (Fees) Amendment Regulations 2015

SR No. 27 – Casino Control (Fees) Regulations 2015

SR No. 28 – Architects Regulations 2015

Legislative Instruments

Guidelines for Assessing Fitness to Drive under Section 27 of the Road Safety Act 1986

Pre‐Commitment Player Accountant Equipment Technical Standards

Greyhound Racing Victoria – Rule Amendments

Orders under Section 7 Varying the Project Area and the Extended Project Area

Determination under Section 3.6.5A of the Gambling Regulation Act 2003 Fixing the Value of the Supervision Charge for Venue Operators for 2013‐2014

Pre‐Commitment System Requirements Standard

Documents

No. 5 of 2015 - Parliament of Victoria€¦ · Alert Digest No. 5 of 2015 Appropriation (2015‐2016) Bill 2015 1 Appropriation (Parliament 2015‐2016) Bill 2015 2 Court Services