Mr Steve Doszpot MLA (Chair) s1

Scrutiny Report 42

Committee Membership

Mr Steve Doszpot MLA (Chair)

Ms Joy Burch MLA (Deputy Chair)

Mrs Giulia Jones MLA

Secretariat

Mr Max Kiermaier (Secretary)

Ms Anne Shannon (Assistant Secretary)

Mr Peter Bayne (Legal Adviser—Bills)

Mr Stephen Argument (Legal Adviser—Subordinate Legislation)

Contact Information

Telephone 02 6205 0173

Facsimile 02 6205 3109

Post GPO Box 1020, CANBERRA ACT 2601

Website www.parliament.act.gov.au

Role of Committee

The Committee examines all Bills and subordinate legislation presented to the Assembly. It does not make any comments on the policy aspects of the legislation. The Committee’s terms of reference contain principles of scrutiny that enable it to operate in the best traditions of totally non-partisan, non-political technical scrutiny of legislation. These traditions have been adopted, without exception, by all scrutiny committees in Australia. Non-partisan, non-policy scrutiny allows the Committee to help the Assembly pass into law Acts and subordinate legislation which comply with the ideals set out in its terms of reference.

Resolution of appointment

The Standing Committee on Justice and Community Safety when performing its legislative scrutiny role shall:

(1) consider whether any instrument of a legislative nature made under an Act which is subject to disallowance and/or disapproval by the Assembly (including a regulation, rule or by-law):

(a) is in accord with the general objects of the Act under which it is made;

(b) unduly trespasses on rights previously established by law;

(d) contains matter which in the opinion of the Committee should properly be dealt with in an Act of the Legislative Assembly;

(2) consider whether any explanatory statement or explanatory memorandum associated with legislation and any regulatory impact statement meets the technical or stylistic standards expected by the Committee;

(3) consider whether the clauses of bills (and amendments proposed by the Government to its own bills) introduced into the Assembly:

(a) unduly trespass on personal rights and liberties;

(b) make rights, liberties and/or obligations unduly dependent upon insufficiently defined administrative powers;

(d) inappropriately delegate legislative powers; or

(e) insufficiently subject the exercise of legislative power to parliamentary scrutiny;

(4) report to the Legislative Assembly about human rights issues raised by bills presented to the Assembly pursuant to section 38 of the Human Rights Act 2004;

(5) report to the Assembly on these or any related matter and if the Assembly is not sitting when the Committee is ready to report on bills and subordinate legislation, the Committee may send its report to the Speaker, or, in the absence of the Speaker, to the Deputy Speaker, who is authorised to give directions for its printing, publication and circulation.

Table of Contents

Bills 1

Bills—No comment 1

Protection of Rights (Services) Legislation Amendment Bill 2016 1

Road Transport (Safety and Traffic Management) (Autonomous Vehicle Trials) Amendment Bill 2016 1

Transplantation and Anatomy Amendment Bill 2016 1

Bills—Comment 1

Road Transport Legislation Amendment Bill 2016 1

Smoke-Free Public Places Amendment Bill 2016 4

Victims of Crime (Financial Assistance) Bill 2016 6

Workplace Privacy Amendment Bill 2016 10

Subordinate Legislation 11

Disallowable Instruments—No comment 11

Subordinate Law—No comment 12

National Laws—Comment 12

Government Responses 19

Comment on Government response 20

Comment on Government response by member of the committee 21

Outstanding Responses 22

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Scrutiny Report 42

Bills

Bills—No comment

The Committee has examined the following bills and offers no comment on them:

Protection of Rights (Services) Legislation Amendment Bill 2016

This Bill proposes to amend a range of legislation across the ACT statute book to make changes to references to, and functions of, the statutory office holders within the restructured Human Rights Commission and expanded Public Trustee and Guardian that will be consequential to the Protection of Rights (Services) Legislation Amendment Bill 2015 should it be passed into law.

Road Transport (Safety and Traffic Management) (Autonomous Vehicle Trials) Amendment Bill 2016

This is a Bill for an Act to allow for the safe testing of autonomous (or self-driving) cars in the ACT.

Transplantation and Anatomy Amendment Bill 2016

This is a Bill to amend the Transplantation and Anatomy Act 1978 to permit suitably trained officers, who are not doctors, to remove whole organs where only parts of the organs, such as heart valves, are to be used subsequently.

Bills—Comment

The Committee has examined the following bills and offers these comments on them:

Road Transport Legislation Amendment Bill 2016

This is a Bill for an Act to amend Territory road transport laws to reduce the number of police pursuits on ACT roads by enhancing the ability of police to prevent drivers or riders fleeing from police, and to apprehend and prosecute drivers or riders who commit this offence without the need to undertake a police pursuit.

Do any provisions of the Bill amount to an undue trespass on personal rights and liberties?—paragraph (3)(a) of the terms of reference

Report under section 38 of the Human Rights Act 2004 (HRA)

Clause 22 of the Bill) proposes the insertion of section 5C into the Road Transport (Safety and Traffic Management) Act 1999.

5C Failing to stop motor vehicle for police

A person commits an offence if—

(a) the person is driving a motor vehicle; and

(b) a police officer asks or signals the person to stop the motor vehicle; and

Maximum penalty:

(a) for an offence by a first offender—100 penalty units, imprisonment for 12months or both; or

(b) for an offence by a repeat offender—300 penalty units, imprisonment for 3years or both.

This provision should be read in conjunction with the proposed amendments to existing section 7 of the Road Traffic (Safety and Traffic Management) Act 1999, which creates offences in relation to furious, reckless or dangerous driving. The Explanatory Statement explains these amendments.

This clause amends the maximum penalty for the existing offence of furious, reckless or dangerous driving in section 7. The maximum penalty for the simple offence is 100 penalty units, imprisonment for one year or both. The offence currently includes a number of aggravating factors which result in the offence being an aggravated offence if any of those factors existed at the time of the current offence. ... One of the aggravating factors currently is the person failed to comply with a request or signal given by a police officer to stop the vehicle (section 7A (a) (i)). This clause increases the maximum penalty for the aggravated offence where that aggravating factor (failing to stop motor vehicle for police) is present. The maximum penalty in this circumstance has been increased to 300 penalty units, imprisonment for three years or both – for a first offender, or 500 penalty units, imprisonment for five years or both – for a repeat offender.

Proposed section 5C will also operate in conjunction with section 60 of the Road Traffic (General) Act 1999, which provides, in the words of the Explanatory Statement, that “the responsible person for a vehicle, or a person in possession of the vehicle, must, when requested to do so by a police officer or authorised person, give information to a police officer about the name and home address of the driver of a vehicle at the time the vehicle was alleged to have been used to commit an offence against the road transport legislation”. It is noted that “[t]he Bill amends the maximum penalty for failing to give this information where the offence alleged to have been committed was an offence against section 5C of the Road Transport (Safety & Traffic Management) Act 1999 (Failing to stop motor vehicle for police)”.

The Bill also proposes that other penalties apply to a person offending against section 5C, or against section 60 where it operates in conjunction with section 5C. The Explanatory Statement notes that (1) “[c]lauses 7 to 10 make amendments to the definition of immediate suspension offence, to include the new offence in section 5C of the Road Transport (Safety and Traffic Management) Act 1999 (Failing to stop motor vehicle for police) and the offence in section 60 of the General Act, if the failure to give information was in relation to that failing to stop offence”; and (2) that “[c]lauses 25 to 35 extend the application of existing provisions for seizure, impounding and forfeiture of vehicles, where they have been used to commit certain offences, to include where they have been used in the commission of the offence of failing to stop for police”.

The paragraphs above are a very summary statement of the complex provisions of the Bill. The Committee refers members of the Assembly to the more detailed explanations in the Explanatory Statement. Arising out of the proposals there are, from a rights perspective, three major matters to be addressed.

Vesting in the police a power to signal vehicles to stop; proposed section 5C of the Road Traffic (Safety and Traffic Management) Act and the right to freedom of movement in HRA section 13

The first matter is the creation of the new offence in section 5C of the Road Traffic (Safety and Traffic Management) Act. This provision engages and limits at least the right to freedom of movement stated in HRA section 13. At common law, a police officer has no power to stop a vehicle using a public road unless expressly authorised by law to do so. Of course, section 5C would so authorise the police. That however is not the end of the analysis for the purposes of the Human Rights Act, or for the Committee acting a term of reference to identify clauses in Bills that trespass on personal rights and liberties. For these purposes, the question is then whether the extent of the authority is justifiable.

More precisely, the issue is whether it is justifiable to empower the police to signal a person to stop a vehicle unaccompanied by any requirement that the officer has a suspicion or belief that any fact or circumstance exists (such as the driver of the vehicle had or was about to act contrary to the law in some respect).

It may be argued that absence of any such requirement means that the power is expressed arbitrarily, in that it gives no guidance to the police or to those who may be affected by its exercise as to when it may be exercised. On this basis the provision is not proportionate (using that term as shorthand for the way the tests in HRA section 28 are applied).

Section 5C is based on regulation 109 of the Road Transport (Safety and Traffic Management) Regulation 2000, but in a critical respect is different. Under the regulation, a person must not, without reasonable excuse, fail to comply with a request or signal made or given by a police officer (emphasis added). By this defence, the person may raise a wide range of considerations in justification for failing to stop. The Explanatory Statement does not draw attention to this difference. It does point out that “[t]he statutory defences in the Criminal Code 2002, such as duress or sudden emergency, are available to a person charged with the offence”. These defences are much narrower than a “reasonable excuse” defence.

The gravity of proposed section 5C is also enhanced by the increase in penalty in comparison to that in regulation 109. While the maximum penalty for the latter offence is 20 penalty units, the maximum penalty for an offence under section 5C is, for a first offender is 100 penalty units, 12months imprisonment or both, and for a repeat offender, the penalty is increased to 300 penalty units, three years imprisonment or both.

The Committee recommends that the Minister provide a justification for the enactment of section 5C in terms of the framework stated in HRA section 28. A particular issue is whether there is a sufficiently strong relationship between the limitation and its purpose (paragraph 28(2)(c)). The Explanatory Statement indicates that the purpose of the new offence is to offset the adoption by the police of a policy that “police will no longer pursue drivers unless it is necessary to prevent serious harm or the death of another person”. It appears to be expected that section 5C will operate as an inducement to drivers to desist from fleeing from the police. The Committee suggest that this point needs elaboration.

The Committee draws these matters to the attention of the Assembly and recommends that the Minister respond.

Power to enter a place without consent of the owner or occupier and the right to privacy in HRAsection 12

Under the heading “Power to enter a place without consent of the owner or occupier”, the Explanatory Statement at pages 4 to 6 identifies a number of clauses that engage HRA section 12.

The Committee draws this matter to the attention of the Assembly and does not call upon the Minister to respond.

Failing to provide information to a police officer about the driver of the vehicle and the right not to self-incriminate in HRA section 22

Under the heading “Failing to provide information to a police officer about the driver of the vehicle”, the Explanatory Statement at pages 6 to 9 identifies a number of clauses that engage HRA section 12.

The Committee draws this matter to the attention of the Assembly and does not call upon the Minister to respond.

Smoke-Free Public Places Amendment Bill 2016

This is a Bill for an Act to amend the Smoke-Free Public Places Act 2003, and in particular to permit the establishment of new smoke-free public places and events by Ministerial declaration and to facilitate the future declaration of public places or events in both the built environment and in outdoor or open locations.

Do any provisions of the Bill amount to an undue trespass on personal rights and liberties?—paragraph (3)(a) of the terms of reference

Report under section 38 of the Human Rights Act 2004

Community consultation in respect of a declaration by the Minister of a smoke-free place or event and the right to take part in public life in HRA section 17

While the Chief Minister and the relevant Minister must jointly declare that a public place or event is a smoke-free public place or event, the Minister “must consult with the community, including people or organisations that would be directly affected if the declaration is made” (proposed subclause 9O(2) of the Act).