Legislation Review Committee

Published on: March 2021

Record: HANSARD-1323879322-115980


Legislation Review Committee

Report: Legislation Review Digest No. 27/57

TEMPORARY SPEAKER (Ms Sonia Hornery):

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

Ms FELICITY WILSON (North Shore) (12:45:58):

As Chair: I address the House on behalf of the Legislation Review Committee regarding the twenty‑seventh digest for this Parliament, tabled on 16 March 2021. In the digest the committee examined the eight bills introduced in the last sitting week. The committee also commented on four statutory instruments. I draw the House's attention to some of the issues raised. The COVID‑19 Legislation Amendment (Stronger Communities and Health) Bill 2021 amends a number of Acts and regulations to extend the operation of temporary provisions introduced because of the COVID‑19 pandemic until 26 September 2021 or, alternatively, to a date not later than 26 March 2022, as prescribed by the regulations.

The committee noted that the bill allows a number of Acts to be amended by regulations in respect of the repeal date of certain provisions. Unlike primary legislation, regulations are subordinate legislation and are not required to be passed by Parliament. While either House of Parliament can pass a motion disallowing a statutory rule, the statutory rule may operate for some time before that occurs. The committee generally comments where statutory rules operate to amend primary legislation. However, the committee noted that the bill only seeks to extend the operation of existing measures that are part of the Government response to the COVID‑19 pandemic and does not seek to implement new measures. The committee also recognises that a flexible repeal date for those provisions may be desirable, given the ongoing risk of a COVID‑19 outbreak. In those circumstances, the committee made no further comment.

I turn to the Racehorse Legislation Amendment (Welfare and Registration) Bill 2021, which is a private member's bill that was introduced in the Legislative Council and examined by the committee. The bill makes a number of amendments to the Prevention of Cruelty to Animals Act 1979 and the Thoroughbred Racing Act 1996, and introduces a number of strict liability offences that prohibit certain activities and practices within the horseracing industry. Some offences carry substantial maximum financial penalties—ranging from 25 penalty units, which is $2,750, to 300 penalty units, which is $33,000—and six months' imprisonment, or both. The committee generally comments on strict liability offences as they depart from the common‑law principle that mens rea, referring to the mental element or intent, is a relevant factor in establishing liability for an offence. The committee noted that strict liability offences are not uncommon in legislation and regulatory frameworks to ensure compliance with safe practices, particularly the protection of animal welfare. However, as the strict liability offences may result in a high financial penalty or imprisonment, or both, the committee referred the issue to the Parliament for consideration of whether the provisions are reasonable in the circumstances.

I turn to some of the statutory instruments dealt with in the digest. The Children (Detention Centre) Amendment (Disclosure of Information) Regulation 2020 amends the Children (Detention Centres) Regulation 2015 to insert new provisions about when the Secretary of the Department of Communities and Justice can disclose information about "relevant persons". Those relevant persons include detainees, juvenile inmates, juvenile offenders on parole, individuals subject to a children's community service order or community clean up order, and individuals being supervised by Youth Justice NSW as a condition of bail. The committee noted that the regulation may impact on the privacy rights of affected individuals, whose personal information may be shared among domestic and international arms of government, and law enforcement agencies. However, the committee acknowledged that there may be a public interest in allowing such sharing of information. In doing so, the regulation may increase support for relevant persons and amplify the cooperation between various governments and law enforcement agencies to properly manage, supervise and support young offenders. Also, the committee noted some safeguards in the regulation—for instance, the requirement that information be "reasonably necessary'" for the relevant purpose for which it is disclosed. In the circumstances, the committee made no further comment.

The Fair Trading Amendment (Code of Conduct for Short-term Rental Accommodation Industry) Regulation (No 2) 2020 establishes a code of conduct for participants in the short‑term rental accommodation industry and provides for the enforcement of that code. The committee noted that the regulation sets out a number of strict liability offences relating to breaches of the code, which carry significant maximum monetary penalties. As noted previously, generally the committee comments on strict liability offences as they depart from the common law principle that a mental element is required to establish liability for an offence. Generally, the committee prefers that offences with large penalties are set out in primary, rather than subordinate, legislation. As I mentioned earlier, strict liability offences are not uncommon in regulatory settings, and the maximum penalties under the regulation are to be imposed by a court. However, given the substantial penalties attached to the offences, the committee referred the matter to Parliament for consideration. That concludes my remarks on the twenty‑seventh digest for this Parliament. I commend the digest to the House.

Mr DAVID MEHAN (The Entrance) (12:50:59):

I make a contribution to debate on the Legislation Review Committee's Legislation Review Digest No. 27 of this Parliament, which records the committee's work undertaken on 16 March 2021. On that day we considered eight pieces of legislation: the Cannabis Legalisation Bill 2021, the COVID Legislation Amendment (Stronger Communities and Health) Bill 2021, the Government Sector Finance Amendment (Government Grants) Bill 2021, the Independent Commission Against Corruption Amendment (Ministerial Code of Conduct—Property Developers) Bill 2021, the Prevention of Cruelty to Animals Amendment (Aquatic Animal Recognition) Bill 2021, the Public Health Amendment (Vaccination Compensation) Bill 2021, the Resource Legislation Amendment (Welfare and Registration) Bill 2021 and the Waste Avoidance and Resource Recovery Amendment (Plastic Reduction) Bill 2021. The committee commented on all of those except for the Prevention of Cruelty to Animals Amendment (Aquatic Animal Recognition) Bill 2021. The committee also considered 12 regulations and commented on four of those.

I draw members' attention to one of the bills. Of course, I draw members' attention to the entire digest, but I will speak to only one of the bills, the Cannabis Legalisation Bill 2021, a private member's bill that was introduced into the other Chamber by Ms Cate Faehrmann, MLC. The objects of the Cannabis Legalisation Bill 2021 are to legalise cannabis or cannabis products produced and distributed under the licensing scheme established by the proposed Act, legalise cannabis grown for personal use in particular circumstances and establish the New South Wales Cannabis Authority. The bill contains a number of other provisions and changes, including amendments to the Drug Misuse and Trafficking Act 1985, the Law Enforcement (Powers and Responsibilities) Act 2002 and the Public Health (Tobacco) Act 2008.

The committee identified a number of issues that it felt compelled to comment on, including strict liability offences relating to the unlawful growth, distribution, sale, advertising and consumption of cannabis and cannabis products in certain circumstances. 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. That is of particular concern where significant penalties are attached to an offence. In that regard the committee noted that for an individual the penalties under the proposed bill range from two penalty units, which is $220, for consuming cannabis in a public place, to 100 or 500 penalty units, which is up to $55,000, for supplying cannabis to a minor, depending on whether it is a first or subsequent offence.

The committee noted that strict liability offences are not uncommon in regulatory settings to encourage compliance. The committee also acknowledged the public health and public safety objectives of many of the offence provisions. The committee understands that many of the offences contained in the bill relate to conduct already prohibited, in broader terms, in the Drug Misuse and Trafficking Act 1985.

The offences in that Act also have heavier penalties attached, including imprisonment. However, given the large number of strict liability offences included in this bill and the range of penalties attached, the committee felt compelled to refer these to Parliament for its consideration. The committee also noted there are a number of broad and ill-defined elements in offences, and referred them to Parliament for further consideration. I refer members to section 14 of the bill in that regard. The committee also noted that the bill contains limitations on the duty to give reasons by government authorities under section 44, and it draws those to the attention of members. They are my comments on the digest. I thank my fellow committee members for their attention to their work, and I thank the staff who support us.

Report noted.

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