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Legislation Review Committee

Published on: May 2021

Record: HANSARD-1323879322-117373

Legislation Review Committee

Report: Legislation Review Digest No. 29/57

Report: Legislation Review Digest No. 30/57

Ms FELICITY WILSON:

I move:

That, in accordance with standing order 306 (7), the reports of the Legislation Review Committee, being orders of the day (committee reports) Nos 2 and 3, be considered together.

Motion agreed to.

TEMPORARY SPEAKER (Mr Greg Piper):

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

Ms FELICITY WILSON (North Shore) (13:05:27):

As Chair: I address the House on behalf of the Legislation Review Committee regarding the twenty-ninth and thirtieth digests for this Parliament, tabled on 4 May and 11 May 2021 respectively. In the twenty-ninth digest, the committee examined the three bills introduced in the last sitting week. The committee also commented on eight statutory instruments. I now draw the Parliament's attention to some of the issues raised. The Heavy Vehicle Legislation Amendment (National Regulator) Bill 2021 transfers certain functions under the Heavy Vehicle National Law from Transport for NSW [TfNSW] to the National Heavy Vehicle Regulator [NHVR]. The purpose of the bill is to give effect to the transfer of certain functions under the Heavy Vehicle National Law from Transport for NSW to the National Heavy Vehicle Regulator. It primarily transfers certain members of staff from Transport for NSW to the National Heavy Vehicle Regulator and safeguards their employment conditions.

In reviewing this bill, the committee identified that the bill permits Transport for NSW to provide the regulator with information in possession of Transport for NSW, including personal information. The committee noted that this may infringe upon an individual's right to privacy. However, under the bill, personal information has the same definition as under section 4 of the Privacy and Personal Information Protection Act 1998 and is subject to certain privacy protections under that Act regarding the retention, use and disclosure of that information. The committee also noted that the transfer of information is for the purpose of facilitating the transfer of employees from TfNSW to the NHVR, including details of their employment, superannuation and leave entitlements. In these circumstances, the committee made no further comment.

The committee also reported on eight regulations in this digest, one of which is the Retirement Villages Amendment (Exit Entitlement) Regulation 2021. This regulation inserts provisions to allow residents to apply to the Secretary of the Department of Customer Service to make an order for the payment of a former occupant's exit entitlement, where the sale of the premises has been unreasonably delayed by the operator. The committee identified that the amending regulation provides that such an application may be made by the former occupant if the exit entitlement has not been paid within the prescribed period. Under the new schedule 5A to the regulation, the prescribed period for retirement villages in the 28 specified local government areas [LGAs] is six months. For all other LGAs, the prescribed period is 12 months. The committee commented that this may create a barrier for those residents that must wait 12 months, which may impact their economic rights regarding the payment of the exit entitlement where it has been unreasonably delayed by the operator. The committee referred these provisions to the Parliament for consideration.

I now turn to the thirtieth digest, tabled this week, in which the committee examined eight bills and three statutory instruments. In this digest, the committee reviewed the Tax Administration Amendment (Combating Wage Theft) Bill 2021. This bill amends the Taxation Administration Act 1996 to introduce measures to deter the underpayment of wages, including increasing the maximum penalties attached to a number of existing offences and inserting a new offence for tax evasion. The committee identified that the changes significantly increase the monetary penalties available applicable to a range of provisions relating to keeping records and providing accurate information to the chief commissioner of taxation. For two existing offences and the new offence, the amendments also insert a custodial penalty of two years' imprisonment.

Many of the amended offences are strict liability offences, meaning that no mental element or intent is required to be proven. Many are also executive liability offences, meaning that a director of a company can be liable if they ought to have known about an offence and failed to take reasonable steps to prevent it. The committee will generally comment where significant penalties can be imposed without requiring intent. This is based on the common law principle that the mental element of an offence is relevant to the imposition of liability. The committee also generally comments where penalties are significantly increased, particularly custodial sentences, as these may impact on the right to liberty.

The committee acknowledged that strict and executive liability offences, with significant penalties attached, are often used in regulatory settings to encourage compliance. Further, the committee acknowledges the object of the bill, which is to deter underpayment of wages by employers. However, given the significant increase in penalties for multiple offences and the inclusion of new custodial sentences, the committee referred these provisions to Parliament for its consideration. That concludes my remarks on the twenty-ninth and the thirtieth digests for this Parliament. I thank my fellow committee members and the committee secretariat for all their work and I commend the digest to the House.

Mr DAVID MEHAN (The Entrance) (13:10:24):

I make a contribution to this take-note debate on the twenty-ninth digest, dated 4 May 2021, and the thirtieth digest, dated 11 May 2021, of the Legislation Review Committee. In the twenty-ninth digest the committee considered three bills and commented on all of those. Those bills are the Canterbury Park Racecourse (Sale and Redevelopment Moratorium) Bill 2021, the Heavy Vehicle Legislation Amendment (National Regulator) Bill 2021 and the NSW Jobs First Bill 2021. The committee also considered 42 regulations and commented on eight of those. I will come back to two of those in a moment—the Retirement Villages Amendment regulations.

In the thirtieth digest, dated 11 May 2021, the committee considered eight bills and commented on five of them. The committee considered the Coal and Gas Legislation Amendment (Liverpool Plains Prohibition) Bill 2021; the Payroll Tax Amendment (Jobs Plus) Bill 2021; the Petroleum (Onshore) Amendment (Cancellation of Zombie Petroleum Exploration Licences) Bill 2020; the Protection of the Environment Operations Amendment (Clean Air) Bill 2021; the Residential Tenancies Amendment (Reasons for Termination) Bill 2021; the Statute Law (Miscellaneous Provisions) Bill 2021; the Tax Administration Amendment (Combating Wage Theft) Bill 2021; and the Work Health and Safety Amendment (Industrial Manslaughter) Bill 2021. The committee also considered 27 regulations and commented on three of those.

There were two Retirement Villages Amendment regulations—one concerning asset management plans and the other concerning exit entitlements. The date for disallowance in this place has expired, but the date for disallowance in the other place is still current. It is my understanding that notice has been given of disallowance of those two regulations. Some members in this place will be aware that the Retirement Village Residents Association was very concerned about the regulations. The association wrote to many members, including to me, particularly in relation to the exit entitlement regulation. The association's concern was that, in its view, the regulation did not correspond with promises made and understandings reached with the Government in relation to the timescale for when exit entitlement was claimable.

Discussions prior to the formulation of the regulation suggested to the Retirement Village Residents Association that in the Sydney metropolitan area, including in Newcastle and Wollongong, residents exiting a retirement village would be able to claim their exit entitlement after six months. When the regulation was released it was found that whilst the six-month period was enacted for the Sydney metropolitan area, Newcastle and Wollongong, left out of the list was the Central Coast and Lake Macquarie area—hence the concern, because retirement village residents in those locations, having read the discussion paper that had been produced prior to the regulation being made, thought that they would be included in that six-month period. Having been left out of the six-month period, they fell back on the other provision in the regulation, which only enabled claiming the exit entitlement after 12 months.

I encourage members to read that, particularly if they received a letter from retirement village residents in their area. Again, I thank all my committee members for their hard work in putting this report together, and of course the excellent backup we received from the secretariat. I commend the digests to the House.

Reports noted.

TEMPORARY SPEAKER (Mr Greg Piper):

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