Get Involved - Parliament

Legislation Review Committee

Published on: February 2021

Record: HANSARD-1323879322-115512

Legislation Review Committee

Report: Legislation Review Digest No. 25/57

TEMPORARY SPEAKER (Ms Sonia Hornery):

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

Ms FELICITY WILSON (North Shore) (12:45:44):

As Chair: I address the House on behalf of the Legislation Review Committee regarding the twenty‑fifth digest for this Parliament, tabled on 16 February. The committee examined the two bills introduced in the last sitting week of 2020 commencing 17 November. It also considered ten statutory instruments. I draw members' attention to some of the issues raised by the committee. On 17 November the Government released its cognate budget bills: the Appropriation Bill 2020, the Appropriation (Parliament) Bill 2020 and the Payroll Tax Amendment 2020. Those bills appropriated various sums of money required during the 2020‑21 financial year and, as such, did not engage any of the issues set out in section 8A of the Legislation Review Act 1987. The second bill introduced during the final sitting week of 2020, the Crimes (Domestic and Personal Violence) Amendment (Coercive and Controlling Behaviour) Bill 2020, was a private member's bill introduced in the Legislative Council.

The object of that bill was to amend the Crimes (Domestic and Personal Violence) Act 2007 to create an offence of engaging in abusive behaviour of another person within a domestic relationship. In reviewing the bill the committee noted that it contained a new abusive behaviour offence that acted retrospectively. Under the bill, this new offence extends to a course of behaviour that began before the commencement of the bill, provided the behaviour occurred on at least one occasion after its commencement. The committee will usually comment on retrospectivity as it runs counter to the rule of law principle that a person is entitled to know the law that applies to him or her at any given time. The committee acknowledged that the objective of the bill is to recognise the repeated nature of abusive conduct in domestic relationships and the cumulative effect that has on its victims. However, as the provision seeks to act retrospectively, and attaches a criminal penalty, the committee referred the bill to the Parliament for its consideration.

I turn now to a statutory instrument considered by the committee, the Electricity Supply Amendment (Energy Saving) Amendment Regulation 2020. The object of the regulation is to amend schedule 5 to the Electricity Supply Act 1995 to change the existing energy savings scheme targets for the years 2022 to 2025 and set targets for the years 2026 to 2050. This amendment is made possible by a Henry VIII clause in the Act. A Henry VIII clause enables the Act to be amended by subordinate legislation. Specifically, clauses 7 and 8A of schedule 4A to the Act provide for the Minister to recommend that a regulation be made to change the energy savings scheme target for a specified year or years if the Minister is satisfied that the change is appropriate for one of a range of reasons.

The committee generally comments on Henry VIII clauses because they delegate legislative power to the Executive and reduce parliamentary scrutiny of changes to legislation. Unlike primary legislation, subordinate legislation is not required to be passed by Parliament and the Parliament does not control when it commences. This means that while either House of Parliament can pass a resolution disallowing a statutory rule under section 41 of the Interpretation Act 1987, the statutory rule may have already been in operation for some time before disallowance occurs. The committee referred this matter to Parliament for further consideration.

The Surveillance Devices Amendment (Body‑Worn Recording Devices) Regulation 2020 amends the Surveillance Devices Regulation 2014 to exempt ambulance officers from sections 7 and 8 of the Surveillance Devices Act 2007 for 12 months. Those sections prohibit the installation and use of listening devices and optical surveillance devices. This exemption was previously introduced by another amendment regulation in October 2019, enabling NSW Ambulance to trial the use of body-worn cameras [BWCs] for 12 months as part of a "focused evaluation into the effects of BWCs on occupational violence experienced by Paramedics". The trial involves 60 cameras worn by several hundred ambulance officers across three sites in New South Wales. NSW Ambulance states on its website that the trial will assist in the implementation of recommendations made in previous reports aimed at improving personal security for ambulance officers and identifying factors and behaviours that place them at risk.

The amendment regulation now extends the trial period during which ambulance officers will be exempt from certain requirements of the Surveillance Devices Act 2007 for a further 12 months so that the trial will last a total of two years. This exemption, and its extension by the amendment regulation, has the potential to impact individuals' right to privacy, as it permits ambulance officers to record people without their consent in certain circumstances; for example, if the ambulance officer believes there is a significant risk of harm to themselves or another person. Relevantly, ambulance officers are likely to interact with vulnerable members of the public—for example, those who are sick or injured. Further, it is unclear from the regulation how recordings captured by body‑worn surveillance devices will be stored, or for how long, or how they can be used. However, the committee acknowledged that the exemption is associated with a trial, and as such only some ambulance officers in New South Wales wear the surveillance devices.

There are also safeguards accompanying the exemption, including that the exemption does not apply unless the ambulance officer informs a person that they might be recorded, or somebody may be at a significant risk of harm, or the recording is accidental. In addition, the committee recognised the public interest in deterring violence and antisocial behaviour towards ambulance officers. In the circumstances, the committee made no further comment. That concludes my remarks on the twenty-fifth digest for this Parliament. I commend the digest to the House.

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

It gives me great pleasure to speak to the twenty-fifth digest of this Parliament, which records the work of the Legislation Review Committee undertaken on 16 February. The committee considered five bills, four of which were cognate budget bills, as well as the Crimes (Domestic and Personal Violence) Amendment (Coercive and Controlling Behaviour) Bill 2020, which was a private member's bill. We commented on only one of those bills and that was the crimes bill, which is up for debate this week. I encourage members to look at the comments the committee made on that particular bill. We also examined, I think, 40 regulations in total, but we commented on only 10 of those. Regulation is often referred to as red tape—I am not sure why. There seems to be an awful lot of regulation flowing around at the moment and maybe we should call it blue tape.

I refer members to our comments on those regulations. One of the things the committee often comments on is the existence of Henry VIII clauses. Henry VIII clauses, as explained to me by the knowledgeable committee staff—I would not be aware of this without their guidance and assistance—refer to the tendency for that good King to prefer to legislate without referring anything to whatever form of Parliament he had going at the time. It is regulation made by the Executive without reference to any form of parliamentary consultation or decision by a legislative body.

In relation to the Electricity Supply Amendment (Energy Saving) Regulation 2020, the committee noted that it falls foul of our concerns about the use of Henry VIII clauses. The committee noted that the Electricity Supply Amendment (Energy Saving) Regulation 2020 amends the Electricity Supply Act 1995, which was made possible by a Henry VIII clause in that Act. That is an inappropriate delegation of legislative power. Primary legislation should not be changed by subordinate legislation because it reduces parliamentary scrutiny of those changes. Both sides of the House have fallen into the introduction of Henry VIII clauses as a way to run the Executive, and the committee will always be concerned to bring it to the attention of the House.

The committee further noted that, unlike primary legislation, subordinate legislation is not required to be passed by Parliament and that the Parliament does not control when it commences. That means that while either House of Parliament can pass a resolution disallowing a statutory rule under section 41 of the Interpretation Act 1987, the statutory rule may already have been in operation for some time before disallowance occurs and, as a consequence, the committee referred this matter to Parliament for further consideration. That concludes my comments on this digest. I commend the digest to the attention of members of the House.

Report noted.

Report: Legislation Review Digest No. 26/57

TEMPORARY SPEAKER (Ms Sonia Hornery):

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

Ms FELICITY WILSON (North Shore) (12:55:15):

As Chair: I address the House on behalf of the Legislation Review Committee regarding the twenty-sixth digest for this Parliament, tabled on 16 February. This digest considers the three bills that were introduced in the first sitting week of 2021 for the Legislative Assembly beginning 9 February 2021. The committee made comments on two of those bills. As statutory instruments reviewed by the committee over the break were addressed in the twenty-fifth digest, also tabled on 16 February, the current digest does not contain reports on statutory instruments. I will now draw the Parliament's attention to some of the issues raised by the committee on these bills.

The Prevention of Cruelty to Animals Amendment Bill 2021 amends the Prevention of Cruelty to Animals Act 1979 [POCTAA] to increase maximum penalties for the most common animal cruelty offences. The bill also increases the range of orders a court may make under the POCTAA. In its examination of the bill, the committee noted that the bill significantly increases the maximum penalties for certain offences in the POCTAA. For the offence of animal cruelty under section 5, the maximum imprisonment term for individuals has been doubled and the maximum fines are eight times higher than the current amounts for both individuals and corporations. For the offence of aggravated cruelty under section 6, the maximum fines for individuals and corporations are five times higher than current amounts. For the offence of failing to provide an animal with food, drink or shelter under section 8, the maximum fines are three times higher.

The committee notes that in November 2020 a similar bill was introduced in Parliament providing for significant increases in penalties for offences under the POCTAA. In the committee's Legislation Review Digest No. 24, the committee reviewed the provisions of that bill. While acknowledging the bill's intention to toughen the penalties for animal abuse offences, the committee referred the increase in penalties to Parliament for its consideration on whether they are reasonable and proportionate. The committee echoes its position in regard to the significant increase in penalties contained in this bill. The committee notes the bill's intent of providing penalties to serve as a deterrent for animal abuse and to reflect community expectations and standards. However, the increases are significant and it is appropriate to refer the provisions to Parliament for it to consider whether they are reasonable and proportionate.

Turning to the second bill introduced, the Road Transport Legislation Amendment (Drink and Drug Driving Offence) Bill 2021 introduces a combined alcohol and drug driving offence under the Road Transport Act 2013. It follows the launch of the Government's Road Safety Plan 2021, which featured targeted initiatives to address key areas of trauma and types of crashes occurring on New South Wales roads, including those involving drink and drug driving. The committee observed that the bill introduces new strict liability offences for drug and drink driving offences under section 111A, which carry maximum penalties ranging from 30 to 100 penalty units, or $3,300 to $11,000, and/or 18 months' to two years' imprisonment, depending on the concentration of alcohol and whether it is a person's first offence.

The committee notes that strict liability offences do not require a mental element such as intent or recklessness to be proven for a person to be convicted. The committee generally comments on strict liability offences as they depart from the common law principle that mens rea, or the mental element, is a relevant factor in establishing liability for an offence. This is of particular concern where significant penalties are attached, including the possibility of imprisonment. The committee noted that strict liability offences are not uncommon in regulatory settings, particularly relating to road safety, to encourage compliance, and acknowledges the public safety and deterrence objectives of the bill. However, given the significant penalties that are attached to the new strict liability offences, including imprisonment, the committee referred the matter to the Parliament for its consideration.

The committee also noted that proposed section 111A provides for a defence to a second or subsequent combined alcohol and drug driving offence where the defendant can prove, to the court's satisfaction, that the alcohol in their breath or blood was not caused by consuming an alcoholic beverage or another substance used for the purpose of consuming alcohol. Similarly, new clauses 32A and 32B in schedule 3 provide that breath, blood, oral fluid and urine tests taken within a specified period of an event occurring are presumed to show the concentration of alcohol or presence of an illicit drug at the time of that event unless the defendant proves otherwise.

Legislation Review Digest No. 26/57

The committee commented that those provisions may impact on the defendant's right to be presumed innocent, which is associated with the concept that the prosecution has the burden of proving a charge beyond reasonable doubt. The standard of proof for this defence—"to the court's satisfaction"—may also provide uncertainty. The committee considered that the reversed onus of proof for the section 111A defence is in line with the approach to drink driving offences elsewhere in the Act, such as defences to novice drink driving in section 110 (9). Similarly, new clauses 32A and 32B resemble existing clauses in schedule 3 relating to proceedings for separate pre‑existing drug and drink driving offences—sections 110, 111 and 112 of the Act. However, given the significant penalties for the proposed drug and drink driving offences that may impact procedural fairness by reversing the onus of proof on the defendant, the committee referred those provisions to the Parliament for its consideration of whether it is reasonable in the circumstances. That concludes my remarks on for this Parliament. I commend the digest to the House.

Mr DAVID MEHAN (The Entrance) (13:00:45):Legislation Review Digest No. 26/57

It gives me great delight to speak on of this Parliament, which records further work undertaken by the committee on 16 February, during which we examined three bills. We commented on two of those. We did not comment on Government Information (Public Access) Amendment (Recklessly Destroying Government Records) Bill 2021, which is a private member's bill. We commented on the Prevention of Cruelty to Animals Amendment Bill and the Road Transport Legislation Amendment (Drink and Drug Driving Offence) Bill. I note that the Prevention of Cruelty to Animals Amendment Bill is currently before the House. I draw members' attention to the comments made in the digest about the bill. The committee commented on the significant increase in penalties provided for under that bill. The object of the Road Transport Legislation Amendment (Drink and Drug Driving Offence) Bill is to introduce a combined alcohol and drug driving offence under the Road Transport Act 2013 and provide penalties for the offence. The bill makes other minor and consequential amendments. The committee has made a number of observations about the bill, which I draw to the attention of the House.

I will be interested to see whether the Minister refers to them in his reply speech. I remember it was a recommendation from the last Parliament, when we undertook an inquiry into the operation of the Legislation Review Committee, that it would be appropriate for Ministers with carriage of bills to refer to the comments made by the committee and at least address those in the House or in some other manner. The committee noted that the road transport bill contains strict liability offences, a reverse onus of proof, mandatory penalties and commences by proclamation. In relation to the strict liability offences, we noted that there are significant penalties under the bill, including maximum penalties of 30 to 100 penalty units—that is quite a sum of money—and/or 18 months to two years imprisonment, which is pretty steep. I note that a number of members commented on that and hopefully the Minister will as well. Once again, I commend the digest to the House. I thank my fellow committee members and the staff who support us.

TEMPORARY SPEAKER (Ms Sonia Hornery):

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

Report noted.

TEMPORARY SPEAKER (Ms Sonia Hornery):

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