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Legislation Review Committee

Published on: October 2019

Record: HANSARD-1323879322-107991

Legislation Review Committee

Report: Legislation Review Digest No. 6/57

TEMPORARY SPEAKER (Ms Sonia Hornery):

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

Mr DAVID MEHAN (The Entrance) (12:46):Legislative Review Digest No. 6

:31 I make a contribution in the take note debate on the of the Fifty-Seventh Parliament, dated 15 October. When the committee met yesterday it considered two bills and commented on both. The committee considered also seven regulations subject to a disallowance motion by either House of the Parliament and commented on all seven. The committee noted that the Road Transport Amendment (Mobile Detection) Bill 2019 amends the Road Transport Act 2013 so that an object held by the driver that is captured in a photograph by a traffic enforcement device approved for mobile phone use offences is presumed to be a mobile phone.

This presumption may be rebutted if the defendant can establish on the balance of probabilities that it was not a mobile phone. This has the effect of reversing the onus of proof, which intrudes on the common law principle that a person has the right to be presumed innocent until proven guilty. It is ordinarily for the prosecution to establish all elements of an offence. The committee acknowledged that the reversed onus of proof in this instance may relate to a matter which is particularly within the knowledge of the accused.

Further, it noted the community safety objects of the bill and that the offence does not attract a custodial sentence. Nevertheless, an accused may experience difficulty producing the information to the standard necessary to avoid conviction and may thereby attract a significant maximum monetary penalty and potential loss of licence. For those reasons the committee referred the matter to Parliament to consider whether the reversed onus of proof is reasonable in all the circumstances. The committee also determined that it will display for public consumption all correspondence sent to Ministers and members who originate bills, advising them of the committee's comments. It will also publish for public consumption all responses received from Ministers or members. That is a great way of improving the accountability mechanisms around the committee's work. It allows the public to understand that the committee is advising members and the Government of its comments on bills and whether the Government, and members who originate bills, respond appropriately to the concerns of the committee.

I also note the committee has not, as yet, received a response from the Premier to the committee's suggestion that the inquiry conducted in the last Parliament, and its recommendations, be carried over to this Parliament for consideration and implementation by the Government as a better way to scrutinise bills before the Parliament. The digest is an important document and I encourage all members to use it. I thank the secretariat who have done a fantastic job—as usual. I thank also my colleagues on the committee. I commend the digest to the House.

Ms FELICITY WILSON (North Shore) (12:50):

:31 As Chair: I address the House concerning the committee's sixth digest of this Parliament, tabled on 15 October. In this digest the committee examined the two bills introduced in the last sitting week, and identified issues in seven regulations. I draw to the attention of the House some of the issues raised. The Road Transport Amendment (Mobile Phone Detection) Bill 2019 seeks to amend the Road Transport Act 2013 to establish a presumption that an object held by a driver in a photo taken by a traffic enforcement device is a mobile phone for the purposes of a mobile phone use offence. To rebut this presumption the defendant must establish, on the balance of probabilities, that the object was not a mobile phone.

The bill thereby reverses the onus of proof, contrary to the common law principle that a person has a right to be presumed innocent until proven guilty. The committee acknowledged the community safety objectives of the bill and noted that the offence does not attract a custodial sentence. However, given that the defendant may experience difficulty producing information to the standard necessary to avoid conviction, the maximum penalty of $2,200 and potential loss of licence, the committee referred the matter to Parliament for consideration.

The Prevention of Cruelty to Animals Amendment (Restrictions on Stock Animal Procedures) Bill 2019 seeks to introduce a new offence applying to persons who perform a Mules operation—a surgical operation on sheep. The maximum penalty would be a $5,500 fine or six months imprisonment, or both. The committee noted that the offence is designed to deter people from performing a procedure that may cause animal suffering and that has been banned or limited in certain other jurisdictions. However, the committee noted also that the creation of a new offence impacts on individual rights and liberties as previously lawful conduct becomes unlawful. In addition, it noted that the Mules operation is designed to prevent flystrike infections in sheep. Given the various considerations, the committee referred the question of whether the new offence is reasonable to Parliament.

I note two of the regulations the committee reported. The Criminal Records Regulation 2019 places certain limits on the Spent Convictions Scheme. It provides that a person may be required to disclose spent convictions when making certain job applications such as applying to practise as a lawyer or a Crown prosecutor. It lists also certain sexual offences for which convictions cannot be spent. Further, the regulation allows spent convictions to be used by the police commissioner when making an application for a criminal organisation declaration under the Crimes (Criminal Organisations Control) Act 2012. The committee noted that matters such as these may have significant impacts on individuals, particularly around their employment prospects. It therefore found that they would be more appropriately included in primary rather than subordinate legislation. This would provide a greater opportunity for parliamentary scrutiny. The committee referred this matter to Parliament for consideration.

The Health Records and Information Privacy Amendment (Health Records) Regulation 2019 exempts certain health records linkage systems administered by the Health Administration Corporation from the health privacy principles contained in the Health Records and Information Privacy Act 2002. Information about a person could be included in one of these systems without the need for the person's consent. This may impact on the privacy rights of affected individuals. The committee acknowledged that the purpose of such systems is to allow NSW Health healthcare providers to share health information about patients to optimise their care. However, given the potential sensitivity of such information, the committee referred the privacy exemption to Parliament to consider if it is reasonable in the circumstances. That concludes my remarks on the sixth digest. I thank the committee secretariat and their staff for their work. I encourage all members to read the full digest. 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.