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Legislation Review Committee

Published on: August 2019

Record: HANSARD-1323879322-106915

Legislation Review Committee

Report: Legislation Review Digest No. 1/57

Report: Legislation Review Digest No. 2/57

Ms FELICITY WILSON:

I move:

That in accordance with Standing Order 306 (7) the reports of the Legislation Review Committee, being orders of the day (committee reports) Nos 2 and 3 be considered together.

Motion agreed to.

TEMPORARY SPEAKER (Ms Sonia Hornery):

The question is that the House take note of the reports.

Ms FELICITY WILSON (North Shore) (12:53:20):

As Chair: I address the House on behalf of the Legislation Review Committee for the Fifty-Seventh Parliament. The committee scrutinises all bills introduced to Parliament and all regulations subject to disallowance in accordance with the criteria established under the Legislation Review Act 1987. This process informs members and the community about the potential impact of bills and regulations on their personal rights and liberties, and whether they enable the inappropriate use of government or legislative power.

I am pleased to have the Hon. Trevor Khan, MLC, as deputy chair, along with a number of other learned colleagues supporting the committee. Thank you also to the committee staff for the work they do. I turn now to the Committee's first and second digests for this Parliament, tabled on 6 August 2019. In digest No. 1/57 the committee examined the first 18 bills introduced in this Parliament and commented on seven of them. The Committee also identified issues in 24 regulations. I draw the House's attention to some of the key issues raised in the first digest. The Ageing and Disability Commissioner Bill 2019 seeks to protect and promote the rights of adults with disability and older adults. It establishes the office and functions of the Ageing and Disability Commissioner and an Ageing and Disability Advisory Board.

The bill provides that the commissioner is not subject to the control or direction of the Minister in the exercise of the following functions: Conducting investigations under part 3; advising or making recommendations to the Minister; and preparing annual reports and special reports under part 5. The committee noted that the commissioner may be subject to control or direction of the Minister in exercising functions outside those listed. As a result, the rights of those subject to the bill may be unduly dependent on the insufficiently defined administrative powers of the Minister. The committee therefore referred the matter to Parliament for consideration. The Crimes (Administration of Sentences) Amendment (Inmate Behaviour) Bill 2019 permits the Corrective Services Commissioner to adopt behaviour management policies for inmates of correctional centres.

These policies may specify circumstances in which certain privileges provided to inmates may be modified, even if they relate to a criminal or correctional centre offence. The committee noted that it is an important rule of law that a person not be punished twice for the same offence. If privileges are withdrawn and the inmate is also subject to penalties arising from criminal justice or disciplinary proceedings, he or she may effectively be punished twice for the same offence. The Crimes (Appeal and Review) Amendment (Double Jeopardy) Bill 2019, a private member's bill, extends an exception to the rule against double jeopardy. The rule provides that no-one can be retried for an alleged offence for which they have been acquitted or convicted. The bill extends the circumstances under which a person can be retried for a life sentence offence. The committee referred this matter to Parliament, as the double jeopardy rule is designed to prevent the State, with its considerable power and resources, from making repeated attempts to convict an individual, thereby subjecting him or her to a continued state of uncertainty.

I draw the House's attention to some of the key issues raised in the second digest, in which the committee commented on three bills. The Reproductive Health Care Reform Bill 2019 enables a termination of pregnancy to be performed by a medical practitioner on a person who is not more than 22 weeks pregnant, or on a person who is more than 22 weeks pregnant in certain circumstances. It repeals criminal offences relating to abortion and abolishes any common law rules relating to abortion. The bill requires a registered health practitioner, who has a conscientious objection to performing a termination, to disclose that belief. It also requires the health practitioner to refer a person requesting a termination to a health practitioner who he or she believes can provide the service, and who does not hold a conscientious objection to it.

The committee noted that this requirement to refer may impact on the health practitioner's right to freedom of conscience as he or she is required to participate in a process to which he or she has a conscientious objection. However, the committee noted that the right of a woman to lawfully access termination services must also be considered and that the requirement is consistent with the existing code of conduct issued by the Medical Board of Australia. Similarly, the health practitioner is not required to advise on or perform the termination, rather to refer or transfer care of the person. In the circumstances, the committee made no further comment.

I turn to one of the regulations the committee reported on in its first digest. The Criminal Procedure Amendment (Penalty Notices for Drug Possession) Regulation 2019 allows police to issue on-the-spot fines of $400 for certain drug offences. The committee noted that it prefers provisions that set penalties to be included in primary legislation, to foster an appropriate level of parliamentary oversight. That concludes my remarks on the first and second digests of this Parliament. I encourage everyone to read the full digests, which are available on the committee's webpage. I commend the digests to the House.

Mr DAVID MEHAN (The Entrance) (12:58:48):

I make a contribution to debate on the first and second digests of the Legislation Review Committee for the Fifty-Seventh Parliament. I begin by welcoming my fellow committee members, both new and returning, to the committee and I congratulate the member for North Shore on her election as chair. I wish all committee members the very best in their deliberations. It is probably appropriate, given this is the first take-note debate on the committee's digest, to remind the House that the functions of the Legislation Review Committee are set out in the Legislation Review Act 1987. Under section 8A the committee is to consider all bills introduced into Parliament. Under section 9 the committee is to consider all regulations that are subject to disallowance by resolution of either or both Houses of the Parliament.

The committee will primarily scrutinise bills and regulations to determine whether they unduly trespass on personal rights and liberties—as well as other things—but that is essentially the thrust of the committee's deliberations. I remind members that the digest provides a useful summary of all bills before the House. The digest is a document that members can refer to from time to time not only in relation to the comments made by the committee under its scrutiny power, but also to get an overview of the bills before the House. I conclude by acknowledging the secretariat that is appointed to support the committee, which does a fantastic job. I look forward to working with its members. I commend the digest to the House.

Reports noted.

Report: Legislation Review Digest No. 3/57

TEMPORARY SPEAKER (Ms Sonia Hornery):

The question is that the House take note of the report.

Ms FELICITY WILSON (North Shore) (13:01:51):

As Chair: I speak on the Legislation Review Committee's third digest for Parliament, which was tabled on 20 August. In this digest the committee examined five bills and commented on four of them. The committee also identified issues in nine regulations. I draw the attention of the House to some of the key issues raised. The Racing Legislation Amendment Bill 2019 seeks to permit Racing NSW and Harness Racing NSW to compel certain persons to provide information to a special inquiry if an order is made by the Supreme Court. A person is not excused from providing information on the grounds that it may incriminate that person. The committee acknowledged that the powers are intended to assist in investigating threats to the integrity of the racing industry. It also noted safeguards in the bill, including that the compelled information is not admissible in evidence against the person in criminal, civil or disciplinary proceedings. Nonetheless, the right to silence and right against self-incrimination are well-established legal principles. The committee referred the bill to Parliament to consider whether it unduly trespasses on these rights.

The bill would also empower the police commissioner to make an order excluding a person from racecourses during race meetings if the commissioner considers it in the public interest to do so. The committee noted that such an order would impact on the freedom of movement of affected persons. It further noted that while the bill provides certain appeal rights for such orders, in practice these may be difficult to exercise given that the commissioner is not always required to give reasons for making an order, and given the breadth of the commissioner's power to do so. In the circumstances, the committee drew these matters to the attention of Parliament to consider whether the provisions trespass unduly on the right to freedom of movement.

Another bill I note is the Gambling Legislation Amendment (Online and Other Betting) Bill 2019, which seeks to make directors liable for certain offences of a corporation related to direct marketing to holders of betting accounts. The committee noted that to establish executive liability, the prosecution is not required to prove the director had actual knowledge of the offence, only that he or she ought reasonably to know that the offence would be committed. However, the committee acknowledged that it is not unusual in a regulatory context for there to be a lower threshold for the mental element that must be proved to hold a defendant liable, and that this is to encourage compliance. Further, the offences in question would not attract a custodial sentence. In the circumstances, the committee made no further comment.

One of the regulations the committee reported on in its third digest is the Road Transport (Driver Licensing) Amendment (Release of Photographs to ASIO) Regulation 2019, which expands the circumstances under which Roads and Maritime Services [RMS] can release photographs, including driver licence photos, to ASIO. Currently photos may only be released for the purpose of investigating terrorism offences. The committee noted various safeguards in the bill, and the importance of national security and public safety. However, it also noted that many people may not expect RMS to release their information for purposes unrelated to its own functions, and in particular to release that information to ASIO without a warrant. In the circumstances, the committee referred the regulation to Parliament for further consideration as to whether it unduly trespasses on privacy rights.

Lastly I turn to the Apprenticeship and Traineeship Amendment Regulation 2019, which increases the maximum penalty that a court may impose on an employer's agent for failing to comply with requirements for the keeping and inspecting of training contracts. The committee acknowledged that penalties in this area had not increased for a long time and the intention that they be aligned with similar frameworks. However, due to the large increase in the maximum penalty from $550 to $11,000, the committee referred this to Parliament to consider whether the proposed penalty is proportionate to the offence in question.

That concludes my remarks on the third digest of this Parliament. I encourage all members to read the full digest, which is available on the committee's webpage. I also acknowledge the contributions and efforts of my fellow committee members: Deputy Chair the Hon. Trevor Khan, the Hon. Shaoquett Moselmane and Mr David Shoebridge from the other place; and Mr Lee Evans, member for Heathcote; Ms Wendy Lindsay, member for East Hills; Mrs Leslie Williams, member for Port Macquarie; and Mr David Mehan, member for The Entrance. All members of the committee spend a significant amount of time ensuring that they review the regulations and disallowable regulations that come before this Parliament. I thank the committee members and committee staff, and I commend the digest to the House.

Mr DAVID MEHAN (The Entrance) (13:06:38):

I will make a brief contribution on the third digest of the fifty-seventh Parliament, which was considered by the committee on 23 August. The digest reports on the committee's deliberation on five bills and nine regulations. I encourage members of both Houses to consult the digest as part of their deliberations on those bills, which are before both Houses of Parliament. At the 20 August meeting the committee noted that in the previous Parliament the committee had conducted an inquiry on its own initiative and on 22 November 2018 tabled a report of its inquiry into the operation of the Legislation Review Act 1987, but did not receive a response from the Government.

At its 20 August meeting the committee considered the report that it tabled in the last Parliament and endorsed the recommendations in that report, which was in response to a letter circulated in advance of the committee's 6 August meeting in which the Premier asked the current committee to endorse the recommendations in the report. On 20 August the committee endorsed the recommendations in the report. I will table a summary of those findings rather than read out the recommendations. The committee awaits the Government's response, which I look forward to. The committee has made a number of recommendations that it thinks will improve the scrutiny of bills before the House. The committee encourages the Government to consider those recommendations positively.

Report noted.

TEMPORARY SPEAKER (Ms Sonia Hornery):

I will now leave the chair. The House will resume at 2.15 p.m.