Get Involved - Parliament

Legislation Review Committee

Published on: September 2019

Record: HANSARD-1323879322-107614

Legislation Review Committee

Report: Legislation Review Digest No. 5/57

TEMPORARY SPEAKER (Ms Sonia Hornery):

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

Ms FELICITY WILSON (North Shore) (12:45:48):

As Chair of the Legislation Review Committee I address the House concerning the committee's fifth digest for this Parliament, tabled on 24 September. In the fifth digest the committee examined three bills introduced in the last sitting week. I draw the Parliament's attention to some of the issues raised. The first bill the committee examined was the Non-profit Bodies (Freedom to Advocate) Bill 2019. It seeks to prohibit terms in State agreements with non-profit bodies that restrict the advocacy of those bodies on State law, policy or practice. The committee noted that these provisions would operate retrospectively. The committee will generally comment where a bill operates retrospectively. This is contrary to the rule of law that allows people to know the laws to which they are subject at any given time. However, with this bill, the committee noted that whilst such a term in an agreement would become void, any right, privilege, obligation or liability acquired in relation to that term would be unaffected. In these circumstances, the committee made no further comment.

Another bill which the committee examined was the Right to Farm Bill 2019. It would limit the circumstances under which a claim of nuisance could be brought against a person for lawful farming activity on agricultural land. The committee noted that the bill may thereby impact on a person's right to enjoy their property without interference from neighbouring farming activities. However, the committee acknowledged that the immunity against a claim only applies where the land has been used lawfully for the purposes of agriculture for at least 12 months. Further, the committee noted that the bill is intended to address the business impact and associated costs on farmers as they answer claims made against them for lawful activity. In the circumstances, the committee made no further comment.

To deter trespass on farms, the bill also significantly increases the maximum penalty for the offence of aggravated unlawful entry on inclosed lands from $5,500 to $13,200 and/or imprisonment for 12 months. The maximum penalty rises to $22,000, or three years imprisonment, if the offender is accompanied by two or more persons, or does anything to put the safety of any person at serious risk. The committee noted that large penalty increases can result in excessive punishment where the penalty is not proportionate to the offence. However, in this case, the committee acknowledged that the penalty increase is designed to better reflect the severity of the offences in question and their impact on farmers and primary production activities. In the circumstances, the committee made no further comment.

The Right to Farm Bill would also create a new offence of inciting or directing others to trespass. It would carry a maximum penalty of 12 months imprisonment. The committee noted that creating a new offence impacts upon personal rights and liberties, as previously lawful conduct becomes unlawful. However, the committee acknowledged that the purpose of this offence is to address a gap in the law where people incite trespass without doing so themselves. Given the public interest in protecting the rights of farmers from trespass, and the potential safety risks involved, the committee made no further comment.

Lastly, I turn to the Road Transport Amendment (Miscellaneous) Bill 2019. This bill seeks to make various amendments to road transport legislation. One amendment would clarify that the power of a police officer to arrest certain persons involved in a motor vehicle accident to test their blood and urine for alcohol or drugs, applies regardless of where the accident occurred, if it resulted in a death—that is, these powers would extend to off-road accidents resulting in a death. The committee noted that the bill may thereby impact on the right to personal physical integrity and liberty.

However, the committee acknowledged that the powers are designed so that police can properly investigate very serious motor vehicle accidents that occur off-road. In the circumstances, the committee made no further comment. That concludes my remarks on the fifth digest of this Parliament. I thank the committee secretariat and the members of the committee for their involvement and contribution. 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) (12:50:00):

On behalf of the Opposition I contribute to the take‑note debate on the Legislation Review Committee's Legislation Review Digest No. 5/57, dated 24 September 2019. The committee considered three bills and commented on all of those bills. I will place on record some of the comments we made on the private member's bill to underline that the committee does scrutinise all bills that come before the House, including private members' bills. The Non-profit Bodies (Freedom to Advocate) Bill 2019 introduced by the shadow Attorney General, Mr Paul Lynch, MP. The committee noted that:

The purpose of the bill is to prohibit State agreements with non‑profit bodies from restricting or preventing those bodies from commenting on, advocating support for or opposing changes to State law, policy or practice.

The committee further noted that:

Mr Lynch noted arguments against restricting the advocacy work of non-profit bodies through funding agreements. Drawing on the work of the philosopher John Stuart Mill, Mr Lynch stated 'As Mill argued, one way of developing good policy and arriving at the best intellectual conclusion is to confront opposing views'.

The committee considered that the bill trespassed in one respect on personal rights and liberties and the committee noted:

The Bill prohibits and invalidates terms in State agreements with non-profit bodies that restrict their advocacy on State law, policy or practice. This provision is to have retrospective application to any agreements containing such a term entered into before the commencement of the proposed Act. The Committee will generally comment where a Bill operates retrospectively as this is contrary to the rule of law which allows people knowledge of the laws that they are subject to at any given time. However, the Committee further notes that whilst the term will become void, any right, privilege, obligation or liability acquired in relation to that term will be unaffected. In the circumstances, the Committee makes no further comment.

At its meeting, the committee also considered the information presented to the public on the Parliament's website in terms of what information the public can see on the committee's work. It was agreed that the committee publish any responses it has received from Ministers and members to letters written to the member or Minister by the committee informing them of the committee's comments on bills or regulations, and that those responses would be collated and reported twice yearly.

Some members of the committee, including me, thought it would make the work of the committee more transparent to summarise the number of responses received from members and Ministers. I am afraid that was not the majority view of the committee. In any event, the outcome of the meeting is that members of the public will be able to see the responses provided to the committee to comments made by the committee on bills from those who have generated the bills in the House. That concludes my comments on the digest. I thank the secretariat for its support and my colleagues on the committee for their work. I encourage all members to use the digest and I commend the digest to the House.

Report noted.

TEMPORARY SPEAKER (Ms Sonia Hornery):

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