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Legislation Review Committee

Published on: August 2020

Record: HANSARD-1323879322-111967

Legislation Review Committee

Report: Legislation Review Digest No. 17/57

TEMPORARY SPEAKER (Ms Sonia Hornery):

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

Ms FELICITY WILSON (North Shore) (12:58):

:44 As Chair: I address the House on behalf of the Legislation Review Committee regarding the seventeenth digest for this Parliament, tabled on 4 August 2020. In this digest the committee examined five bills introduced in the sitting week before the winter recess and found issues in four. It also considered 71 statutory instruments and found issues in 11. I will now draw the Parliament's attention to some of the issues raised.

The Casino Control Amendment (Inquiries) Bill 2020 was introduced in the context of the current casino inquiry being conducted the Hon. Patricia Bergin, SC. When introducing the bill the Minister told the Parliament that it was designed to ensure that such casino inquiries have sufficient powers to ensure the highest level of oversight. The bill will amend the Casino Control Act 1992 to make it clear that a witness who is compelled to attend and give evidence to the inquiry under section 143 of the Act, which is presided over by a Supreme Court judge or a lawyer of seven years standing, is not excused from answering questions or producing documents on the grounds of self-incrimination, privilege, duty of secrecy or on any other ground. The committee noted that the bill may thereby abrogate certain legal privileges—for example, the privilege against self-incrimination.

However, the committee acknowledged that the bill contains safeguards including that any answer given or document produced by the witness is not admissible in civil or criminal proceedings against the person. Further, the committee noted that it is important for casino inquiries to have the power to compel disclosure of privileged information so that they may have a full picture of casino operations and thereby ensure that casinos are managed and operated appropriately in New South Wales. In the circumstances, the committee made no further comment on the abrogation of privilege. However, it did note that the provisions would operate retrospectively and referred that retrospectivity to Parliament to assess whether it is reasonable and proportionate in the circumstances.

I now turn to the Work Health and Safety Amendment (Information Exchange) Bill 2020. The bill would amend the Work Health and Safety Act 2011 to authorise the Secretary of the Ministry of Health to provide information to the work health and safety regulator if they consider it necessary to do so to enable the regulator to exercise its functions under the Act. The amendment, taken with the recent declaration of silicosis as a scheduled medical condition under the Public Health Act 2020, is intended to ensure that the work health and safety regulator is informed of all diagnoses of silicosis in New South Wales and is thereby able to halt the recent increase in the disease.

However, the committee noted that the information-sharing power was broad and did not limit the secretary to sharing information about the diagnosis of silicosis. The committee prefers administrative powers that may affect privacy rights, such as these, to be drafted with sufficient precision so that their scope and content is clear. Further, the committee noted that while a memorandum of understanding was being developed between NSW Health and SafeWork NSW to govern this information sharing the bill itself contained no such privacy safeguards. The committee therefore referred the breadth of the information-sharing power and the issues around privacy safeguards to Parliament for consideration.

I now turn to the regulations in the digest. The Government continues to make regulations to manage the impact of the COVID-19 pandemic. Of the 11 regulations considered in the digest, six related to COVID-19. As with previous legislation related to the pandemic, the regulations included provisions that would, in ordinary circumstances, unduly impact on personal rights and liberties. However, given the extraordinary conditions created by COVID-19, the committee judged them to be reasonable in the circumstances.

For example, the Public Health Amendment (COVID-19 Border Control) Regulation 2020 provides that a person can receive an on-the-spot fine of $4,000 for failing to provide information, including photo identification. This will allow authorities to determine whether the person has been in Victoria within the past 14 days and, if so, whether the person is authorised to enter New South Wales. The committee noted that the regulation may thereby impact on privacy rights. Further, as the information may be used to deny a person entry to New South Wales, the regulation is part of a regime that restricts freedom of movement. However, the committee found that the regulation aims to respond to the public health emergency created by the COVID-19 pandemic, in particular the recent increase in community transmission in Victoria. In the circumstances, it found that the impact the regulation has on personal rights and freedoms was reasonable. That concludes my remarks on the seventeenth digest for this Parliament. I commend the digest to the House.

Mr DAVID MEHAN (The Entrance) (13:03):Legislation Review Digest No. 17/57

:22 I contribute to the take-note debate on , dated 4 August, which is the date that the committee met to consider the information contained therein. The committee considered five bills, commenting on four of them, and a huge 71 regulations in total, commenting on 11 of those. Members who keenly follow the digest—as I know they all do—will note that six of the 11 regulations that were commented on are related to COVID-19. Members will recall my comments on a previous digest in which I indicated to the House that public health orders are outside of the jurisdiction of the committee and, therefore, public health orders would not be reviewed or considered by the committee during the current pandemic. However, regulations made under the Public Health Act are captured and considered. In relation to this—and to better explain the interplay between orders, regulations and the committee's work—I refer to page 47 where the committee notes that the object of the Public Health Amendment (COVID-19 Spitting and Coughing) Regulation (No 2) is:

… to allow for the issue of penalty notices for an offence against section 10 of the Public Health Act 2010 involving a contravention of a Ministerial direction under the Public Health (COVID-19 Spitting and Coughing) Order (No 2) 2020 about intentionally spitting or coughing on:

• a public official or

• another worker while the worker is at the worker's place of work or travelling to or from the worker's place of work,

in a way that is likely to cause fear about the spread of COVID-19.

This Regulation is made under the Public Health Act 2010, including sections 118 and 134 (the general regulation-making power).

Even though the committee has no jurisdiction over orders, any regulations that follow to enforce those orders do come within the jurisdiction of the committee and are reported on. I commend the secretariat that supports the committee in its work. They do a fantastic job; this is a big digest that they have put together. I thank my fellow committee members for their work in preparing the digest as well. I commend the digest to the House and encourage all members to refer to it.

Report noted.

Report: Legislation Review Digest No. 18/57

TEMPORARY SPEAKER (Ms Sonia Hornery):

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

Ms FELICITY WILSON (North Shore) (13:06):

:41 As Chair: I address the House on behalf of the Legislation Review Committee regarding the eighteenth digest for this Parliament, tabled on 4 August. In the digest the committee examined the two bills that were introduced in the last sitting week and found issues in both. I will now draw the attention of the Parliament to some of the issues raised. The Defamation Amendment Bill 2020 amends the Defamation Act 2005 and the Limitation Act 1969 to implement nationally agreed changes to the law of defamation. The Defamation Act 2005 implemented model defamation provisions which were agreed to by the then Standing Committee of Attorneys-General in 2004. However, since the implementation of those model laws—and with the evolution of the digital age—there have been many changes, including a rise in the number of defamation matters involving digital publications.

Therefore, in 2018 the Council of Attorneys-General agreed to reconvene a defamation working party comprising representatives from all jurisdictions to review the model laws. Detailed policy work followed with two rounds of stakeholder consultation. As a result of that process, model defamation amendment provisions were finalised and in July 2020 the Council of Attorneys-General agreed to support the enactment of those provisions. In implementing those nationally agreed changes to the law of defamation, the bill seeks to amend the Defamation Act 2005 to provide that it is an element of a cause of action for defamation that the publication of defamatory matter about a person has caused, or is likely to cause, serious harm to the reputation of the person. That means that the plaintiff would have to prove serious harm to bring a successful action for defamation. Under the current law, publications of defamatory matter are actionable without proof of special damage.

However, the Defamation Act 2005 does provide that it is a defence to the publication of defamatory matter if the defendant proves that the circumstances of the publication were such that the plaintiff was unlikely to sustain any harm. The committee noted that by raising the threshold for a plaintiff to bring a successful action, the bill would further limit a plaintiff's right to obtain a remedy for defamation. However, the committee noted that this amendment followed extensive stakeholder consultation by the defamation working party. Stakeholders overwhelmingly supported a serious harm threshold after concerns that a rise in inconsequential claims is causing expense and stress for private individuals, and using significant amounts of court resources. In the circumstances, the committee made no further comment.

Another issue identified by the committee related to jury trials. Currently, the Defamation Act allows a plaintiff or defendant to elect for defamation proceedings to be tried by a jury. However, the bill would amend the Act to provide that such an election can be revoked with the consent of the parties or, if there is no such consent, with the leave of the court. The court may, on application of a party, grant such leave but only if satisfied that it is in the interests of justice. The committee noted that by allowing the court to revoke a jury election, the bill may impact on the right to jury trial. However, the committee noted that the court can only revoke if it is in the interests of justice to do so. It also noted that cases may arise where there are compelling reasons to revoke an election—for example, where a party has been unduly prejudiced by pre-trial publicity. In the circumstances, the committee made no further comment.

I turn to the State Revenue Legislation Amendment (COVID-19 Housing Response) Bill 2020. This bill seeks to amend State revenue legislation in connection with the response to the COVID-19 pandemic. In particular the committee noted that the bill seeks to amend the Land Tax Management Act 1956 to introduce new land tax concessions for certain new build-to-rent developments. The bill proposes to reduce the value of a parcel of land by 50 per cent for the purposes of assessing land tax if certain criteria are fulfilled. One of these criteria is where the chief commissioner under the Act is satisfied that the building is being used and occupied in accordance with guidelines approved by the Treasurer.

The committee further noted that the bill sets out what may be contained in these guidelines to assess whether a building is being used for a build-to-rent property, including the minimum lease conditions that must be offered to tenants and the minimum scale of a building. As the matters dealt with in the guidelines have bearing on the grant of significant tax concessions, the committee identified that it would prefer them to be dealt with by regulation. This would foster an appropriate level of parliamentary oversight, as regulations must be tabled in Parliament. There appears to be no such requirement for the guidelines in question. The committee referred this matter to Parliament for consideration. That concludes my remarks on the eighteenth digest for this Parliament. I thank the committee secretariat and my fellow members of the committee for the significant level of work they have been doing, particularly during the COVID pandemic. I commend the digest to the House.

Mr DAVID MEHAN (The Entrance) (13:11):

:32 I make a contribution to the take‑note debate on the eighteenth digest of this Parliament. This digest is dated 4 August, as was the previous digest. Keen followers of the committee's work will wonder why there are two digests on the same day. There is no particular reason. The secretariat that supports the committee simply considered that it would be more appropriate to divide the huge volume of work we considered on that day into two documents. The committee endorsed the decision of the secretariat in that regard. Hence there are two digests with the same date.

In this digest the committee considered two bills and commented on both of them. The committee considered the Defamation Amendment Bill 2020, which seeks to enact recommendations of the model defamation law working party, which is a working party of all States and Territories of the Commonwealth. The committee also considered the State Revenue Legislation Amendment (COVID-19 Housing Response) Bill 2020, which includes a provision to encourage build-to-rent construction in this State as a stimulus response to the economic downturn caused by the current COVID-19 pandemic. In that regard the committee noted that that bill contained guidelines instead of regulation. The committee noted that it was unclear how the guidelines were to be developed. The committee would usually prefer regulations to be made as they can be scrutinised later by Parliament and made a recommendation that that be considered by the House. Once again I thank the secretariat for its supporting work for the committee and I thank the committee members for their attention to their duties. I encourage members to refer to the digests. 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.