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Legislation Review Committee

Published on: September 2019

Record: HANSARD-1323879322-107270

Legislation Review Committee

Report: Legislation Review Digest No. 4/57

TEMPORARY SPEAKER (Ms Sonia Hornery):

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

Ms FELICITY WILSON (North Shore) (12:47:34):

As Chair: I address the House regarding the Legislation Review Committee's fourth digest for this Parliament, tabled on 17 September. In this digest the committee examined and commented on four bills introduced in the last sitting week, and identified issues in six regulations. I draw to the attention of the House some of the issues raised. The Children's Guardian Bill 2019 creates a new Act to consolidate key powers, functions and responsibilities regarding the safety, welfare and wellbeing of children. The bill raised a number of issues on which the committee commented. For example, the bill exempts the Children's Guardian, in certain circumstances, from the requirement to notify an employee that an investigation or determination is being carried out in relation to his or her conduct. The committee noted that this impacts the right of affected persons to be treated with procedural fairness. However, as the exemptions apply only when notification may compromise an investigation or put a person's health or safety at serious risk, the committee made no further comment.

The bill also grants the Children's Guardian or an appointed officer broad powers of search and entry. These powers allow for entry without a warrant in a number of circumstances, including for a reportable conduct investigation, and may thereby impact on privacy rights and the right to be free from arbitrary interference. The committee noted that the purpose of entry under the bill is to facilitate investigations and accreditation, and to monitor compliance, the powers must be exercised with as little inconvenience and damage as possible, and made no further comment.

The Justice Legislation Amendment Bill 2019 amends various Acts relating to courts, crime and juvenile justice. Again, the committee comments on various issues raised by the bill. For example, a proposed amendment to the Children (Detention Centres) Act 1987 would allow the Secretary of the Department of Justice, at his or her discretion, to tell the victim of a juvenile offender the general area of that offender's residence following his or her discharge from detention. The committee noted that the bill thereby provides the secretary with a wide and ill‑defined power that affects privacy rights. However, given that the provisions would not allow the release of the offender's exact address, only general location, and the victims' rights objectives of this amendment, the committee made no further comment.

I turn now to one of the regulations on which the committee reported. The Privacy and Personal Information Protection Regulation 2019 allows a number of exemptions from the usual requirements of the Privacy and Personal Information Protection Act 1998, such as exempting local councils from certain privacy requirements where they use CCTV cameras in public areas. The committee noted that it generally prefers matters that affect personal rights such as privacy to be included in primary rather than subordinate legislation. This allows for a greater level of parliamentary oversight of provisions.

Lastly I turn to the Biosecurity Amendment (Biosecurity Management Plans) Regulation 2019, which recognises biosecurity management plans and makes compliance with those plans mandatory. Biosecurity management plans may apply where a commercial or educational activity is carried out for intensive or extensive agriculture or horticulture, or to process agricultural or horticultural products. The plan is aimed to minimise the risk of a biosecurity impact caused by persons entering or carrying out activities at the relevant place, such as introducing a disease or pest. The committee noted that the plans may be prepared by the person conducting the commercial or educational activity of the place; that is, the regulation incorporates standards of external entities.

There is no requirement for such standards to be tabled in the Parliament and subject to disallowance under the Interpretation Act 1987. Further, failure to comply with such a plan can attract significant maximum monetary penalties. However, the committee acknowledged that the regulation provides some safeguards. For example, the measures in a plan must be reasonable, and a person is not required to comply with a plan unless notices are conspicuously posted at the entrances to the area over which the plan applies. In the circumstances the committee made no further comment. That concludes my remarks on the fourth digest. I thank the committee secretariat and the committee members for their work. I encourage everyone to read the full digest, which is available on the committee's webpage. I commend the digest to the House.

Mr DAVID MEHAN (The Entrance) (12:51:20):

Thank you for the opportunity to comment on the fourth digest of the Legislation Review Committee dated 17 September. In the digest we report on our considerations. The committee considered four bills and six regulations, and commented on all of them. As an example of the committee's work in relation to regulations, I remind the House that the committee will consider all regulations while they are subject to disallowance by resolution of either or both Houses of Parliament. In relation to the regulations that the committee considered, I draw the House's attention to the Biosecurity Amendment (Biosecurity Management Plans) Regulation 2019. In commenting on this regulation the committee noted that it contained matters that should be included in primary legislation. The committee noted that the regulation amends the Biosecurity Regulation 2017 to recognise biosecurity management plans and to make compliance with those plans a mandatory measure.

Inquiry into the operation of the Legislation Review Act 1987Hansard

The Biosecurity Act 2015 provides a significant maximum penalty for failing to comply with mandatory measures. For individuals that can be a fine of up to $220,000. The committee noted that these provisions expand the circumstances under which individuals and corporations may be subject to significant penalties and should be included in primary rather than subordinate legislation to foster an appropriate level of parliamentary oversight. The committee referred the regulation to Parliament for its consideration. I also note that the last time I spoke on the committee's deliberations I referred to the findings and recommendations of a report prepared by the committee for the last Parliament, the Fifty-Sixth Parliament. With the leave of the House I will incorporate the findings and recommendations of Legislation Review Committee Report No. 1/56 in the .

TEMPORARY SPEAKER (Ms Sonia Hornery):Hansard

I understand it is not custom or practice for this particular information to be incorporated into . However, in accordance with Standing Order 271, on this occasion I will allow it.

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Operation of the Legislation Review Act 1987

Findings and recommendations

Finding 1…………………………………………………………………………………………………………………………...16

The Committee considers that it would assist the scrutiny process for the Committee to determine the rights and liberties it will review bills and regulations against and inform the Parliament of these at the start of each Session.

Recommendation 1…………………………………………………………………………………………………………………23

The Committee recommends that the Houses give consideration to amending their respective Standing Orders to require the Member with carriage of a bill to address any matters identified by the Legislation Review Committee during debate on the bill.

Recommendation 2…………………………………………………………………………………………………………………23

The Committee recommends, in the event Recommendation 1 is not adopted by the Houses, that the NSW Government implement a practice of requiring Ministers with carriage of a bill to address any matters identified by the Legislation Review Committee during debate on the bill.

Recommendation 3…………………………………………………………………………………………………………………27

The Committee recommends that, for bills where the Houses determine to proceed without the five day adjournment period, the NSW Government implement a practice of outlining in the Second Reading Speech the bill's impact on personal rights and liberties with reference to the rights and liberties determined by the Committee.

Recommendation 4…………………………………………………………………………………………………………………29

The Committee recommends that the NSW Government consider amending the Legislation Review Act 1987 to establish a joint Committee to examine subordinate legislation, taking into account the recent practice of the NSW Legislative Council Regulation Committee.

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Mr DAVID MEHAN:

I reported that the committee had received a letter from the Premier asking for its view on the reports and its recommendations. The committee responded on 21 August:

At a meeting held yesterday, the current Committee resolved to endorse the findings and four recommendations contained in the report, and to seek the Government response to recommendations 2 to 4.

The committee waits on the Government's response. I look forward to receiving a positive response from the Government on the matter. The recommendations in that report will aid the scrutiny of bills before the House. The committee is hopeful that the Government will give it a favourable response. Again, I note my appreciation to the secretariat that supports the committee. I commend the digest to the House.

Report noted.