Thursday, 28 October 2021
The PRESIDENT (Hon. N Elasmar) took the chair at 10.05 am and read the prayer.
Announcements
Acknowledgement of country
The PRESIDENT (10:05): On behalf of the Victorian state Parliament I acknowledge the Aboriginal peoples, the traditional custodians of this land which has served as a significant meeting place of the First People of Victoria. I acknowledge and pay respect to the elders of the Aboriginal nations in Victoria past, present and emerging and welcome any elders and members of the Aboriginal communities who may visit or participate in the events or proceedings of the Parliament.
COVID-19 vaccination
The Clerk: Pursuant to paragraph (6) of an order of the Council on 14 October 2021 and further to my email to members today, I report to the house that Dr Cumming has now complied with paragraph (3) of the order and her suspension has been lifted.
Petitions
Following petition presented to house:
Wild horse control
The Petition of certain citizens of the State of Victoria draws to the attention of the Legislative Council that wild horses have lived in the Barmah National Park for over 150 years and should not be removed.
They hold significant cultural and social value for Australians, are a boon for tourism and local economy and are a much-loved icon for the locals who live in the region. The Andrews Government’s push to remove the brumbies from the forest because of claims brumbies cause damage to Moira grasses is disputed by stakeholder groups. As recently noted on the ABC by a senior wetland ecologist in the Goulburn Broken Catchment Management Authority, the current crops are some of the best Moira grass he had seen in years.
Despite there being no damage to Moira grasses, brumbies are targeted for removal above introduced species that damage waterways. Brumbies are being scapegoated and are being cruelly and inhumanely removed by gunfire, despite their cultural and social significance. The community call to abandon their removal. The Andrews Government has ignored the benefits they bring to local communities. There is no recorded damage to Moira grasses and therefore there is no justification to remove the brumbies.
The petitioners therefore request that the Legislative Council call upon the Minister for Energy, Environment and Climate Change to abandon all planned action under the current joint management plan for the Barmah National Park to remove brumbies, to release the last five annual floodplain marshes condition reports and brumby population aerial count photos, and commence an immediate review into allegations made about the impacts and damages caused by brumbies and other introduced species in the Barmah National Park.
By Ms LOVELL (Northern Victoria) (2463 signatures).
Laid on table.
Ms LOVELL: I move:
That the petition be taken into consideration on the next day of meeting.
Motion agreed to.
Papers
Visit Victoria
Report 2020–21
Ms PULFORD (Western Victoria—Minister for Employment, Minister for Innovation, Medical Research and the Digital Economy, Minister for Small Business, Minister for Resources) (10:08): I move, by leave:
That there be laid before this house a copy of the Visit Victoria Limited report 2020–21.
Motion agreed to.
Victoria Law Foundation
Report 2020–21
Ms SYMES (Northern Victoria—Leader of the Government, Attorney-General, Minister for Emergency Services) (10:09): I move, by leave:
That there be laid before this house a copy of the Victoria Law Foundation report 2020–21.
Motion agreed to.
Consumer Policy Research Centre
Report 2020–21
Ms SYMES (Northern Victoria—Leader of the Government, Attorney-General, Minister for Emergency Services) (10:09): On behalf of my colleague Mr Leane, I move, by leave:
That there be laid before this house a copy of the Consumer Policy Research Centre report 2020–21.
Motion agreed to.
Papers
Tabled by Clerk:
Accident Compensation Conciliation Service (ACCS)—Report, 2020–21.
Adult Parole Board of Victoria—Report, 2020–21.
Adult, Community and Further Education Board—Report, 2020–21.
Advancing the Treaty Process with Aboriginal Victorians Act 2018—under section 43 of the Act—
Advancing the Victorian Treaty Process—Report, 2020–21.
First Peoples’ Assembly of Victoria—Report, 2021.
Agriculture Victoria Services Pty Ltd—Report, 2020–21.
Alfred Health—Report, 2020–21.
Ambulance Victoria—Report, 2020–21.
AMES Australia—Report, 2020–21.
Architects Registration Board of Victoria—Minister’s report of receipt of the 2020–21 report.
Austin Health—Report, 2020–21.
Australian Centre for the Moving Image (ACMI)—Report, 2020–21.
Australian Grand Prix Corporation—Report, 2020–21.
Bairnsdale Regional Health Service—Report, 2020–21.
Ballarat General Cemeteries Trust—Report, 2020–21.
Barwon Region Water Corporation—Report, 2020–21.
Beaufort and Skipton Health Service—Report, 2020–21.
Bendigo Health—Report, 2020–21.
Calvary Health Care Bethlehem Limited—Report, 2020–21.
Cenitex—Report, 2020–21.
Central Gippsland Region Water Corporation—Report, 2020–21.
Central Highlands Region Water Corporation—Report, 2020–21.
City West Water Corporation—Report, 2020–21.
Climate Change Act 2017—Victorian Greenhouse Gas Emissions Report 2019, under section 52 of the Act.
Coliban Region Water Corporation—Report, 2020–21.
Commercial Passenger Vehicles Commission—Report, 2020–21.
Commission for Children and Young People—Report, 2020–21 (Ordered to be published).
Confiscation Act 1997—
Asset Confiscation Operations Report, 2020–21.
Report, 2019–20 by the Chief Commissioner of Victoria Police, under section 139A of the Act.
Consumer Affairs Victoria—Report, 2020–21 (Ordered to be published).
Corangamite Catchment Management Authority—Report, 2020–21.
Coroners Court of Victoria—Report, 2020–21.
Coronial Council of Victoria—Report, 2020–21.
Criminal Organisations Control Act 2012—Report, 2020–21 by Victoria Police, under section 133 of the Act.
Dairy Food Safety Victoria—Report, 2020–21.
Dental Health Services Victoria—Report, 2020–21.
Development Victoria—Report, 2020–21.
Disability Services Commissioner—Report, 2020–21.
Docklands Studios Melbourne Pty Ltd—Report, 2020–21.
Duties Act 2000—Treasurer’s Report of Corporate Reconstruction and Consolidation Concessions and Exemptions for 2020–21, under section 250B(4) of the Act.
East Gippsland Catchment Management Authority—Report, 2020–21.
East Gippsland Region Water Corporation—Report, 2020–21.
Eastern Health—Report, 2020–21.
Echuca Regional Health—Report, 2020–21.
Edenhope and District Memorial Hospital—Report, 2020–21.
Education and Training Department—Report, 2020–21.
Electoral Boundaries Commission—Report on the Redivision of Victorian Electoral Boundaries 2020–2021, October 2021.
Emergency Services Superannuation Scheme (ESSSuper)—Report, 2020–21.
Emergency Services Telecommunications Authority (ESTA)—Report, 2020–21.
Energy Safe Victoria—Report, 2020–21.
Environment, Land, Water and Planning Department—Report, 2020–21.
Evidence (Miscellaneous Provisions) Act 1958—Report, 2020–21 by Victoria Police, under section 42BI of the Act.
Families, Fairness and Housing Department—Report, 2020–21.
Fed Square Pty Ltd—Report, 2020–21.
Film Victoria—Report, 2020–21.
Financial Management Act 1994—
Explanation from the Assistant Treasurer under section 46(3)(a) of the Act, for the delay of the Essential Services Commission Report, 2020–21.
Explanation from the Minister for Consumer Affairs, Gaming and Liquor Regulation under section 46(3)(a) of the Act, for the delay of the 2020–21 Reports of the—
Recreational Fishing Licencing Trust Account (RFLTA).
Victorian Commission for Gambling and Liquor Regulation (VCGLR).
Victorian Responsible Gambling Foundation (VRGF).
Explanation from the Minister for Energy, Environment and Climate Change under section 46(3)(a) and (b) of the Act, for the delay of the 2020–21 Reports of the—
Alpine Resorts Coordinating Council.
Barwon South West Waste and Resource Recovery Group.
Caulfield Racecourse Reserve Trust.
Commissioner for Environmental Sustainability.
Dhelkunya Dja Land Management Board.
Environment Protection Authority (EPA).
Gippsland Waste and Resource Recovery Group.
Goulburn Valley Waste and Resource Recovery Group.
Grampians Central West Waste and Resource Recovery Group.
Great Ocean Road Coast and Parks Authority.
Gunaikurnai Traditional Owner Land Management Board.
Loddon Mallee Waste and Resource Recovery Group.
Metropolitan Waste and Resource Recovery Group.
North East Waste and Resource Recovery Group.
Royal Botanic Gardens Board.
Sustainability Victoria.
Trust for Nature.
Yorta Yorta Traditional Owner Land Management Board.
Explanation from the Minister for Health under section 46(3)(a) of the Act, for the delay of the 2020–21 Reports of the—
Albury Wodonga.
Alexandra District Hospital.
Alpine Health.
Ballarat Health Services.
Barwon Health.
Beechworth Health Service.
Bass Coast Health.
Beechworth Health.
Benalla Health.
Boort District Health.
Casterton Memorial Hospital.
Castlemaine Health.
Central Gippsland Health Service.
Central Highlands Rural Health.
Cohuna District Hospital.
Colac Area Health.
Corryong Health.
Djerriwarrh Health Services.
East Grampians Health Service.
East Wimmera Health Service.
Great Ocean Road Health.
Goulburn Valley Health.
Heathcote Health Service.
Hesse Rural Health Service.
Heywood Rural Health.
Inglewood and Districts Health Service.
Kerang District Health.
Kilmore District Health.
Kyabram and District Health Services.
Maldon Hospital.
Mansfield District Hospital.
Mildura Base Hospital.
Mildura Cemetery Trust.
Moyne Health Services.
NCN Health (formerly Cobram, Nathalia & Numurkah and District Health Service).
Northeast Health Wangaratta.
Omeo District Health.
Orbost Regional Health.
Peninsula Health.
Portland District Health.
Radiation Advisory Committee.
Rural Northwest Health.
Seymour Health.
South Gippsland Hospital.
South West Healthcare.
Stawell Regional Health.
Swan Hill District Health.
Tallangatta Health Service.
Terang and Mortlake Health Service.
Timboon and District Healthcare Service.
Tweddle Child and Family Health Service.
Victorian Assisted Reproductive Treatment Authority.
Victorian Pharmacy Authority.
West Gippsland Healthcare Group.
West Wimmera Health Service.
Western District Health Service.
Wimmera Health Care Group.
Yarram and District Health Service.
Yarrawonga Health.
Yea and District Memorial Hospital.
Explanation from the Minister for Multicultural Affairs under section 46(3)(a) of the Act, for the delay of the Victorian Interpreting and Translating Service (VITS) Language Loop Report, 2020–21.
Explanation from the Minister for Planning under section 46(3)(a) of the Act, for the delay of the 2020–21 Reports of the—
Cladding Safety Victoria.
Heritage Council of Victoria.
Surveyors Registration Board of Victoria.
Victorian Building Authority.
Victorian Planning Authority.
Explanation from the Treasurer under section 46(3)(a) of the Act, for the delay of the Victorian Plantations Corporation (VPC) Report, 2020–21.
Forensic Leave Panel—Report, 2020–21.
Game Management Authority—Report, 2020–21.
Geelong Cemeteries Trust—Report, 2020–21.
Geelong Performing Arts Centre Trust—Report, 2020–21.
Geoffrey Gardiner Dairy Foundation Limited—Report, 2020–21.
Gippsland and Southern Rural Water Corporation—Report, 2020–21.
Gippsland Southern Health Service—Report, 2020–21.
Glenelg Hopkins Catchment Management Authority—Report, 2020–21.
Goulburn Broken Catchment Management Authority—Report, 2020–21.
Goulburn Valley Region Water Corporation—Report, 2020–21.
Goulburn-Murray Rural Water Corporation—Report, 2020–21.
Grampians Wimmera Mallee Water Corporation (GWM Water)—Report, 2020–21.
Greater Metropolitan Cemeteries Trust—Report, 2020–21.
Greyhound Racing Victoria—Report, 2020–21.
Harness Racing Victoria—Report, 2020–21.
Health Department—Report, 2020–21.
Health Purchasing Victoria (HealthShare Victoria)—Report, 2020–21.
Independent Broad-based Anti-corruption Commission—Report, 2020–21 (Ordered to be published).
Infrastructure Victoria—Report, 2020–21.
Jobs, Precincts and Regions Department—Report, 2020–21.
Justice and Community Safety Department—Report, 2020–21.
Kardinia Park Stadium Trust—Report, 2020–21.
Kooweerup Regional Health Service—Report, 2020–21.
Labour Hire Licensing Authority—Report, 2020–21.
Latrobe Regional Hospital—Report, 2020–21.
Legal Practitioners’ Liability Committee—Report, 2020–21.
Legal Services Council and Commissioner for Uniform Legal Services Regulation—Report, 2020–21.
Library Board of Victoria—Report, 2020–21.
Lower Murray Urban and Rural Water Corporation—Report, 2020–21.
Mallee Catchment Management Authority—Report, 2020–21.
Mallee Track Health and Community Service—Report, 2020–21.
Maryborough District Health Service—Report, 2020–21.
Melbourne Convention and Exhibition Trust—Report, 2020–21.
Melbourne Health (Royal Melbourne Hospital)—Report, 2020–21.
Melbourne Market Authority—Report, 2020–21.
Melbourne Port Lessor Pty Ltd—Report, 2020–21.
Melbourne Recital Centre—Report, 2020–21.
Melbourne Water Corporation—Report, 2020–21.
Mental Health Complaints Commissioner—Report, 2020–21.
Mental Health Tribunal—Report, 2020–21.
Mercy Hospitals Victoria Ltd—Report, 2020–21.
Mine Land Rehabilitation Authority—Report, 2020–21.
Monash Health—Report, 2020–21.
Murray Valley Winegrape Industry Development Committee—Minister’s report of receipt of the 2020–21 report.
Museums Board of Victoria—Report, 2020–21.
National Gallery of Victoria (NGV)—Report, 2020–21.
North Central Catchment Management Authority—Report, 2020–21.
North East Catchment Management Authority—Report, 2020–21.
North East Region Water Corporation—Report, 2020–21.
Northern Health—Report, 2020–21.
Office of Public Prosecutions—Report, 2020–21.
Office of the National Rail Safety Regulator—Report, 2020–21.
Ombudsman—Report, 2020–21 (Ordered to be published).
Parks Victoria—Report, 2020–21.
Parliamentary Committees Act 2003—Government response to the Public Accounts and Estimate Committee’s Report on the 2020–21 Budget Estimates.
Peter MacCallum Cancer Centre—Report, 2020–21.
Phillip Island Nature Parks—Report, 2020–21.
Phytogene Pty Ltd—Minister’s report of receipt of the 2020–21 report.
Police Registration and Services Board—Report, 2020–21.
Port of Hastings Development Authority—Report, 2020–21.
Port Phillip and Westernport Catchment Management Authority—Report,
2020–21.
Portable Long Service Benefits Authority—Report, 2020–21.
Post Sentence Authority—Report, 2020–21.
Premier and Cabinet Department—Report, 2020–21.
PrimeSafe—Report, 2020–21.
Public Interest Monitor—Report, 2020–21.
Queen Elizabeth Centre—Report, 2020–21.
Queen Victoria Women’s Centre Trust—Minister’s report of receipt of the 2020–21 report.
Racing Integrity Commissioner—Report, 2020–21.
Regional Development Victoria—Report, 2020–21.
Remembrance Parks Central Victoria—Report, 2020–21.
Renewable Energy (Jobs and Investment) Act 2017—Victorian Renewable Energy Target—Progress Report, 2020–21, under section 8 of the Act.
Residential Tenancies Bond Authority—Report, 2020–21.
Respect Victoria—Report, 2020–21.
Robinvale District Health Services (RDHS)—Report, 2020–21.
Rochester and Elmore District Health Service—Report, 2020–21.
Rolling Stock (Victoria-VL) Pty Limited—Report, 2020–21.
Rolling Stock (VL-1) Pty Limited—Report, 2020–21.
Rolling Stock (VL-2) Pty Limited—Report, 2020–21.
Rolling Stock (VL-3) Pty Limited—Report, 2020–21.
Rolling Stock Holdings (Victoria) Pty Limited—Report, 2020–21.
Royal Children’s Hospital—Report, 2020–21.
Royal Victorian Eye and Ear Hospital—Report, 2020–21.
Royal Women’s Hospital—Report, 2020–21.
Sentencing Advisory Council—Report, 2020–21.
Shrine of Remembrance Trustees—Report, 2020–21.
South East Water Corporation—Report, 2020–21.
South Gippsland Region Water Corporation—Report, 2020–21.
Southern Metropolitan Cemeteries Trust—Report, 2020–21.
St Vincent’s Hospital (Melbourne) Limited—Report, 2020–21.
State Electricity Commission of Victoria—Report, 2020–21.
State Sport Centres Trust—Report, 2020–21.
State Trustees Limited—Report, 2020–21.
Subordinate Legislation Act 1994—Documents under section 15 in respect of Statutory Rule No. 133.
Surveillance Devices Act 1999—Reports under section 30L of the Act for—
2020–21 by the Australian Criminal Intelligence Commission.
2019–20 by the Department of Environment, Land, Water and Planning.
2020–21 by the Game Management Authority.
2019–20 by Victoria Police.
2020–21 by Victoria Police.
Surveyor-General—Report, 2020–21 on the administration of the Survey Co-ordination Act 1958.
Transport Accident Commission (TAC)—Report, 2020–21.
Transport Department—Report, 2020–21.
Treasury and Finance Department—Report, 2020–21.
Treasury Corporation of Victoria—Report, 2020–21.
V/Line Corporation—Report, 2020–21.
Veterinary Practitioners Registration Board of Victoria—Minister’s report of receipt of the 2020–21 report.
Victims of Crime Assistance Tribunal—Report, 2020–21.
Victims of Crime Commissioner—Report, 2020–21.
Victoria Police—Report, 2020–21.
Victorian Arts Centre Trust—Report, 2020–21.
Victorian Catchment Management Council—Report, 2020–21.
Victorian Curriculum and Assessment Authority—Report, 2020–21.
Victorian Disability Worker Commission and Disability Worker Registration Board of Victoria—Report, 2019–21.
Victorian Electoral Commission—Report, 2020–21.
Victorian Environmental Assessment Council—Report, 2020–21.
Victorian Environmental Water Holder—Report, 2020–21.
Victorian Fisheries Authority—Report, 2020–21.
Victorian Funds Management Corporation—Report, 2020–21.
Victorian Health Promotion Foundation (VicHealth)—Report, 2020–21.
Victorian Inspectorate—Report, 2020–21.
Victorian Institute of Forensic Medicine—Report, 2020–21.
Victorian Institute of Teaching—Report, 2020–21.
Victorian Legal Services Board and Legal Services Commissioner—Report, 2020–21 (Ordered to be published).
Victorian Local Government Grants Commission—Allocation Report, year ended 31 August 2021.
Victorian Managed Insurance Authority (VMIA)—Report, 2020–21.
Victorian Marine and Coastal Council—Report, 2020–21.
Victorian Ports Corporation (Melbourne)—Report, 2020–21.
Victorian Public Sector Commission—Report, 2020–21.
Victorian Rail Track (VicTrack)—Report, 2020–21.
Victorian Regional Channels Authority—Report, 2020–21.
Victorian Registration and Qualifications Authority—Report, 2020–21.
Victorian Small Business Commission—Report, 2020–21 (Ordered to be published).
Victorian Strawberry Industry Development Committee—Minister’s report of receipt of the 2020–21 report.
Victorian Veterans Council—Report, 2020–21.
Victorian WorkCover Authority (WorkSafe)—Report, 2020–21.
Wannon Region Water Corporation—Report, 2020–21.
West Gippsland Catchment Management Authority—Report, 2020–21.
Western Health—Report, 2020–21.
Western Region Water Corporation—Report, 2020–21.
Westernport Region Water Corporation—Report, 2020–21.
Wimmera Catchment Management Authority—Report, 2020–21.
Witness Protection Act 1991—Report, 2020–21 by Victoria Police, under section 20R.
Yarra Valley Water Corporation—Report, 2020–21.
Youth Parole Board—Report, 2020–21.
Zoological Parks and Gardens Board—Report, 2020–21.
The Clerk: I advise members that pursuant to the Electoral Boundaries Commission Act 1982 a copy of the Electoral Boundaries Commission report on the redivision of Victoria’s electoral boundaries is being delivered to each member’s Parliament House office by Council staff this morning.
Mr Davis: On a point of order, President, a large number of annual reports have been tabled today—176, plus others—and 89 are delayed. I note the decision of the chamber staff to circulate the Electoral Boundaries Commission report and commend that, but I am led to believe that there has been a change in practice in the provision of hard copy reports to the opposition. That may not be the case; I may be misinformed. But I understand that it is not—
Ms Crozier: We used to get one copy.
Mr Davis: We used to get one for the opposition—in fact two. I just want to register my concern at that change, because it does make this material less available. We need to then print hundreds of copies.
The PRESIDENT: Thank you, Mr Davis, for your point of order. My understanding is that this is an administrative point, but I will take it on board.
Mr Davis: President, is my understanding of a change of practice correct? Is that—
The PRESIDENT: It is not for me to answer this. I will refer it to the Clerk, and the Clerk will come back to you.
Business of the house
Notices
Notices of motion given.
Notices of intention to make a statement given.
Adjournment
Ms SYMES (Northern Victoria—Leader of the Government, Attorney-General, Minister for Emergency Services) (10:19): I move:
That the Council, at its rising, adjourn until Tuesday, 16 November 2021.
Motion agreed to.
Committees
Environment and Planning Committee
Membership
Mr DAVIS (Southern Metropolitan—Leader of the Opposition) (10:20): I move, by leave:
That Mr Rich-Phillips be a participating member of the Standing Committee on Environment and Planning.
Motion agreed to.
Members statements
Peter and Mary Hay
Mrs McARTHUR (Western Victoria) (10:20): Peter and Mary Hay are two incredible people from my electorate of Western Victoria. They have dedicated more years to their local community than some people in this place have been alive.
In July Peter Hay was recognised for his 52 years of service on the Weerite Public Hall committee of management. Peter spent nine years as committee chair and 36 years as the secretary. Peter has also been part of the Weerite rural fire brigade for over 50 years and was rightly recognised with a CFA long service medal after 45 years.
Mary Hay, meanwhile, has been the crucial driver behind the Camperdown grandstand restoration at the Camperdown racecourse, serving as its committee secretary since its formation. Mary was subsequently awarded the Corangamite Sportsmen’s Club Rick Scroggie Memorial Award in 2019 for her efforts to restore the grandstand, an annual award to recognise service to sport in the Corangamite region. Without Mary’s efforts this famous piece of rural architecture would have been lost forever.
Peter and Mary Hay epitomise what it means to be unstinting community-minded contributors in their local rural area. Thank you, Mary and Peter.
Parliament Prize
Ms STITT (Western Metropolitan—Minister for Workplace Safety, Minister for Early Childhood) (10:21): I rise today to share the great news that a student and a local school from the Western Metropolitan Region electorate have received awards in the 2021 Parliament Prize. As you know, the Parliament Prize is an annual competition delivered by the Parliament of Victoria where students are invited to consider what they would say in Parliament if they were an MP and to submit a 90-second video of their own members statement.
I am thrilled to report that local student Ivana Sobot from Wembley Primary School in Yarraville has been awarded second place in the grades 5 and 6 category. Congratulations, Ivana. I am sure everyone at Wembley Primary School is very proud of you. I am also very pleased that Hoppers Crossing Secondary College has been awarded the prestigious Alicia Katz Award, which aims to acknowledge an inspiring contribution from the school, with judges selecting only one school in Victoria to receive this award.
Across the Western Metropolitan Region there were a total of 149 entries from 31 different schools covering a range of topics, including infrastructure, transport, environment, and Indigenous and LGBTIQ+ rights, just to name a few. Well done to every student and school community in the Western Metro Region for your participation, and my thanks also to the Parliament’s community engagement unit for delivering this important program.
Day for Daniel
Ms MAXWELL (Northern Victoria) (10:23): Friday, 29 October, is Day for Daniel. This is a very important day for the Morcombe family and the Daniel Morcombe Foundation, for Derryn Hinch’s Justice Party, as their solid supporters, and for victims of crime and their families across Australia and indeed around the world. Frankly it is an important day for anyone with a heart and a genuine concern for child safety. While honouring the memory of Daniel Morcombe, who was tragically kidnapped and murdered by a convicted sex offender, Day for Daniel is proudly Australia’s largest child safety education and awareness day. More than 5500 schools and early learning centres across Australia have registered for the day. I encourage schools across Victoria to take the resources that the Daniel Morcombe Foundation provides to promote conversations about personal safety. Tomorrow, start the conversation with a child, family member or friend. It is up to all of us to keep our children safe.
COVID-19
Ms LOVELL (Northern Victoria) (10:24): Since the announcement by the Premier last Sunday regarding the reopening of Victoria from 6.00 pm this Friday night, the Premier has had more positions on retail trading than a certain well-known book on a reopened brothel’s bookshelf. On Sunday the Premier, looking very awkward as he was trying to put on his fake ‘nice dad’ smile and demeanour, told Victorians that our economy was about to open up. That was until his real ‘inner bastard’ personality could not help but come forward to announce with glee that non-vaccinated Victorians would not be allowed to shop in general retail. In fact he went as far as to say they could only access essential retail, giving examples of pharmacies, GPs and supermarkets. Then on Tuesday night, fake nice dad was back and Victorians watched in disbelief as Channel 7 announced that the government had deemed all retail essential, so there was no need for Victorians to be vaccinated or prove vaccination status to shop in retail stores. But by Wednesday the Premier’s real inner-bastard personality was back on show, as Channel 9 reported it would be a retail free-for-all for all Victorians from 6.00 pm Friday night, but as soon as we hit the 90 per cent vaccinated figure, non-vaccinated Victorians would be locked out of non-essential retail shopping. Retailers, particularly small business operators, have had enough and what they need from the government is assistance— (Time expired)
Monash University net zero initiative
Ms TAYLOR (Southern Metropolitan) (10:26): I am very pleased to speak about the net zero initiative for Monash Uni, and I note Monash Uni is aiming for net zero emissions and 100 per cent renewables by 2030 across its four campuses in Victoria. So what is the net zero initiative, you ask. Well, this initiative, which was announced recently by Ministers Tierney and D’Ambrosio, will support Monash to eliminate its fossil fuel dependency by transitioning to 100 per cent renewables as part of our government’s pledge to halve emissions by the end of the decade and achieve a net zero for all of Victoria by 2050. I should note it is an $11 million investment from our government to help Monash achieve its very ambitious but real goal under this funding.
How are they going to get there? The university will undergo a physical and digital transformation, including powering heating and cooling systems with electricity at the Clayton campus, implementing new AI systems to increase energy efficiency at all four campuses and creating a new virtual learning platform to foster collaboration between Monash and renewable energy sectors on commercially viable net zero solutions. Guess what, there is more. It is going to create 100 jobs in energy efficiency and construction while reducing reliance on natural gas and maximising usage of renewable electricity across the university’s Victorian campuses. I have to commend both Monash Uni and the state government, our state government, for their shared commitment to net zero emissions. (Time expired)
The PRESIDENT: Ms Lovell, it has been brought to my attention that during your members statement you used unparliamentary words, and I ask you to withdraw them. Just withdraw them without any comment, please.
Ms Lovell: I withdraw.
Illegal dumping
Mr ONDARCHIE (Northern Metropolitan) (10:28): Illegal dumping of rubbish and asbestos-ridden soil and building material has become rife in Melbourne’s north. Environmental groups are saying that the state government’s increase to the landfill levy last year from $66 a tonne to $126 a tonne has caused this recent surge. Now, I am not particularly supporting those who have done it—it is an illegal practice—but this government, through the underwhelming performance of Minister D’Ambrosio, has done nothing to curb the illegal dumping of rubbish, the illegal dumping of toxic waste right across Victoria, particularly in Melbourne’s north. The Environment Protection Authority Victoria is very under-resourced and again councils have had to pick up the tab for that. Hume council, for example, has spent more than $220 000 on cleaning up some of the mess. Almost 426 tonnes of soil, which equates to about five shipping containers, has been dumped in Melbourne, and particularly in Melbourne’s north, and much of that soil contains asbestos. It is incredible that when I ask constituency questions about the illegal dumping of rubbish to the Minister for Police and making sure that things are better patrolled, the minister refers me back to the Minister for Energy, Environment and Climate Change, who does nothing with it. The problem is—particularly for the residents and my residents of Melbourne’s north, which is a beautiful part of Melbourne—this government are all show and no go.
COVID-19 vaccination
Mr LIMBRICK (South Eastern Metropolitan) (10:29): On 14 October this Parliament did something reprehensible: it voted to suspend members of Parliament who refused to hand over their vaccination records. This was never about workplace safety. We know this because the government refused to consider the safer option of rapid antigen tests. For those Victorians who do not submit to draconian vaccine mandates, their lives become miserable and they are unable to work properly. I have chosen to work from Parliament in exile in solidarity. I thank all supporters who have urged me to return to Parliament to fight the pandemic legislation. You have been heard, but today I stand in defiance.
Scrutiny of Acts and Regulations Committee
Mr DAVIS (Southern Metropolitan—Leader of the Opposition) (10:30): I want to alert the house to the decisions of the Scrutiny of Acts and Regulations Committee. I wrote to them yesterday as the Public Health and Wellbeing Amendment (Pandemic Management) Bill 2021 came into the lower house and sought that the committee undertake a fast reference, a quick examination, to inform the Assembly before it votes on the pandemic legislation with its draconian and anti-democratic provisions. That committee has chosen not to act swiftly to inform the Assembly. I also asked the committee whether it would conduct a public inquiry in the interim between houses. There is a two-week period, a decent period of time. Public hearings could be conducted, submissions taken, so that the committee could be informed and more fully acquit its role as the watchdog, the protector of rights and liberties in this state.
Now, I received a disturbing letter from Kat Theophanous, the chair of that committee, late last night. She has rejected any prospect of undertaking such an inquiry. She has said that the committee will not meet before the Monday before Parliament resits, and in doing so will not undertake those inquiries and public steps that are needed. I say democracy has got to be preserved, and it is time that this weak watchdog barked and actually did its job and actually spoke up on behalf of the liberties of Victorians and protected people.
Community volunteer organisations
Mr BARTON (Eastern Metropolitan) (10:32): As we come out of this lockdown this Friday and businesses can start to return to work, I think it is important to reflect on the work of those in the community who have spent this tough time helping others. We know that thousands of families were relying on food banks and free meals during this lockdown. Many of them had never had to reach out for help ever before. We have had volunteers cooking meals, packing them, serving them and delivering them. We also had many volunteers calling up members of our senior community and asking them how they are going, providing possibly the only social interaction that person will have that week. The impacts of these selfless volunteers cannot be overstated. Without them we would all be worse off.
In my electorate I would like to thank a few organisations specifically for the critical service they have provided: Wellington Care Centre, Restore Community Care, Outer East Phone Chat, CityLife Community Care, Box Hill Community Information and Support, and the St Vincent de Paul Society. There are many more and we cannot name them all. Lockdown has affected us all. It takes very special people to focus on caring for others in such a trying time.
Business of the house
Notices of motion
Ms TAYLOR (Southern Metropolitan) (10:33): I move:
That the consideration of notices of motion, government business, 665 to 668, be postponed until later this day.
Motion agreed to.
Bills
Terrorism (Community Protection) Amendment Bill 2021
Second reading
Debate resumed on motion of Mr LEANE:
That the bill be now read a second time.
Dr BACH (Eastern Metropolitan) (10:34): I rise to speak on the Terrorism (Community Protection) Amendment Bill 2021. The purpose of this bill is to introduce a range of reforms in Victoria by creating, in particular, early intervention pathways and a multi-agency approach to address and prevent radicalisation towards violent extremism. At the outset let me say that these are measures that the opposition parties support, and we will not be opposing this legislation.
I do want to make a point that the Leader of the Government has told us that there will be some amendments, and in fact as we speak the Shadow Attorney-General is receiving a briefing on those amendments, so we will have more to say on the amendments in the committee stage.
The shadow minister, the member for Kew in the other place, made the point in his contribution on this legislation that these types of laws are so important, especially as we remember, 20 years on now, the horrific terrorist attacks in New York and so many other terrorist attacks that have impacted Australians. I think we are all now sadly all too aware that terrorism, that this type of political violence, is not something that only occurs in far-flung places but has been brought home to Australians time and time again.
Ten Australians lost their lives on 11 September in 2001. Like the member for Kew, in 2001 I was finishing my final year of schooling, and that was such a seminal moment—well, of course for all Australians, for all Victorians. For those of us like the member for Kew and me, who were at that point on the cusp of adulthood, it was such a seminal moment because we had been brought up in a world post the parting of the Iron Curtain and the crumbling of the Berlin Wall in which we had been led to believe that a Western way of life with an emphasis on freedom and democracy was the way in which the world was moving—inevitably moving, according to the famous academic Francis Fukuyama, who wrote in the 1990s about the end of history. Well, we received an awful shock. The entire world received an awful shock in 2001, and since then the reality of terrorism and radicalisation has been rammed home to us time and time again. The member for Kew talked about this in his contribution—that terrorism has come very close to us here in Australia. He mentioned the Bali bombings, for example.
Well, it would be remiss of me not to note that since his contribution only a few weeks ago, the impacts of terrorism have come very close to the member for Kew. Over the period of my friendship with the member for Kew he has spoken to me on a number of occasions about how important it was for him and his development to spend some significant time as a young man in the United Kingdom interning in the office of Sir David Amess, and he had spoken to me about Sir David’s commitment to his constituents and his surgeries. Surgeries are ubiquitous for politicians in the United Kingdom. We do not really have anything that is entirely comparable here—street corners, perhaps. Of course we try to get out into our electorates as much as possible—it has been difficult during the period of this pandemic—but in the UK politicians routinely find a public place, not their own office but another public place, a neutral public place, and send out an electorate-wide invitation for everybody and anybody to make an appointment and come and see them. The member for Kew accompanied Sir David on his surgeries during the period of his internship.
Of course, just a matter of days ago, on the 15th of this month, Sir David was killed, allegedly murdered, at his surgery—stabbed to death by a young British citizen who had, according to the metropolitan police force, been radicalised. Now, in many respects, looking at the alleged perpetrator’s characteristics, he was as British as bangers and mash. He was soccer mad, for example. And yet he had been, so say the police, radicalised. So these are matters that I am very pleased that the government is seeking to focus on, because if we can do more to seek to intervene early, especially with vulnerable young men—I am afraid the vast majority of perpetrators of terrorism are young men who are marginalised, who are at risk of the kind of propaganda that some use in terrorist organisations to prey upon vulnerable people—then we will be the better for it.
Now, turning to some of the specifics of the bill, the government tells us in more detail that the purposes of this bill, as I have said, are not only to introduce reforms to terrorism laws to create these early intervention pathways and a multi-agency approach but to do that by amending the Terrorism (Community Protection) Act 2003 and making consequential and related amendments to other acts. These include the Children, Youth and Families Act 2005, the Health Records Act 2001, the Magistrates’ Court Act 1989, the Privacy and Data Protection Act 2014 and the Public Interest Monitor Act 2011. The bill also amends the Victorian Institute of Forensic Medicine Act 1985 to update a reference to a repealed act.
The main provisions of this bill in amending a whole series of other acts are to establish the Countering Violent Extremism Multi-agency Panel—I will refer to that simply as ‘the panel’—to provide for the voluntary case management of people who are radicalising towards violent extremism or are at risk of doing so; to provide for the making of support and engagement orders (SEOs) to address the underlying causes of persons radicalising towards violent extremism, and I have touched upon some of them but will go into a little more detail in the fullness of my contribution; to expand the scheme that provides for the protection of counterterrorism intelligence; and to require a further review of the operation of the act.
I have raised the incidents that I have to seek to draw the attention of the house to the importance for us in Victoria to have laws in place to prevent these sorts of dreadful attacks. Other members, and members of the government in particular, have spoken about a recent attack in Brighton. The importance of doing so was also drawn upon and included in the recommendations delivered by the government-appointed Expert Panel on Terrorism and Violent Extremism Prevention and Response Powers, which I will call ‘the expert panel’, whose ambit was to review the operation and effectiveness of Victoria’s laws to prevent, monitor, investigate and respond to acts of terrorism and also violent extremism.
One of the ways that this bill seeks to do that, as I have said, is by establishing the Countering Violent Extremism Multi-agency Panel. The panel is set to be established as a statutory unincorporated entity to provide coordinated case management between departments and agencies in both the voluntary and support and engagement order schemes. By focusing on providing support and fostering engagement, the voluntary case management scheme and the SEO, supported by the panel, will provide an alternative pathway for responding to radicalisation rather than resorting to criminal justice interventions, and that is something that I entirely support.
We know, and it has been brought home to us even today through some of the annual reports that have been tabled in Parliament, that for young people, for young Victorians, prison does not work. Perhaps that is too definitive. Prison works for young people in the most anaemic sense. It is really important for those who are a danger to society that action is taken by the state in order to neutralise that threat, and for the last 250 years the preferred approach right across the Western world has been incarceration. However, we also know, based on information in annual reports published today and based on a whole series of other data, that when we put vulnerable young people in prison, overwhelmingly what we do is further criminalise them, and so we on this side of the house and other members have been talking about the need for a much greater focus on intervening early and on seeking to prevent crime before it happens. So I am pleased that this particular element forms part of the government’s bill.
Individuals in our community may be vulnerable to radicalisation for a whole series of complex reasons. These include social isolation, links to the use of alcohol and other drugs, mental illness, unemployment and homelessness. Oftentimes we see that these factors do not sit in isolation with vulnerable individuals. The interventions contained in this bill adopt a therapeutic approach through individually tailored plans that seek to address the underlying causes of a person’s radicalisation, and again I say that sounds like a very good thing. The person will then be connected—this is the government’s plan—to a personalised range of multi-agency programs to assist them with these issues and to foster community connectedness. If we are seeking to ensure that we provide the best possible support, especially to young men who are at risk of radicalisation, it is through greater connectedness.
I would simply raise a point here that for so long here in Victoria, despite the best efforts of many in the community sector, despite the best efforts of many who work within relevant government agencies and notwithstanding which party is in government at the time, providing a connected response to the whole series of different vulnerabilities that individuals may face has not been something that we have a particularly good record of doing. I am pleased that the government says this will be a focus of the bill. I would caution that this work is incredibly complex and that certainly we have a long way to go before we can truly say as a state and as a society that we have systems in place to provide a comprehensive suite of supports to vulnerable individuals, certainly those at risk of radicalisation. Nonetheless my hope and our hope on this side of the house is that this targeted support and intervention will deliver better outcomes both for individuals and for the broader community.
There are one or two areas of concern that I would seek to highlight, and then following my engagement with the shadow minister—which I will go and do now, noting that members of the department and the Minister for Crime Prevention’s office are kindly giving him a briefing on the amendments as we speak—I may well have more to say during the committee stage. While the panel is certainly an innovation that we support, there is no precedent for an early intervention program of this nature. It has been, as I understand, created from scratch, and that is not a criticism—not at all. We should be open to innovation, especially given, as I say, that in our state, despite the best efforts of so many in the community sector, so many in government departments and, I do not doubt, so many in government as well, we need to do far better—and this has been the case irrespective of the particular colour of the party of government at the time—in providing comprehensive supports to vulnerable Victorians. So we should be open to innovation. I suppose if we are to accept that as a proposition, we should also accept that we should be open to ongoing review of those innovations to ensure that they are acting to the greatest possible extent in the way that we hope.
I am not aware of the exact criteria to decide if an individual is at risk of radicalisation, and the expert panel noted that there is no definitive list of behaviours. So again, that is a real challenge but one that I am informed members of the government and the bureaucracy are alive to. If somebody is at risk and refuses to participate, is there increased monitoring placed upon them? That is an issue that I would like to explore and the shadow minister would like to explore. If that is the case, how will this be managed? I dare say it may be a community expectation that further monitoring could be put in place. There are any number of examples from recent history and from not-so-recent history of the monitoring of vulnerable individuals being done in such a way and, notwithstanding with the very best of intentions, it actually inflaming situations.
This work is delicate. I do not make these points in any way to criticise the government’s scheme, because we support the government’s scheme. We have been speaking about this for some time. I know that my friend and colleague the former Shadow Attorney-General, Mr O’Donohue, even in my short time in the house, has spoken so often about the need for a focus on prevention and early intervention. This is a shared passion for the new Shadow Attorney-General. It is something that I have spoken about. So we are pleased to see these particular elements in this bill. We are hopeful, as we know the government is hopeful, that this bill, notwithstanding the novel nature of some elements of it and the need for ongoing evaluation and review, will be efficacious as we seek to work alongside vulnerable Victorian communities to ensure that normal young people who, I think, with good supports, and if they feel connected to the broader community, could overwhelmingly go on and make a really positive contribution to our state do not become radicalised. We know the shocking impacts of that.
Those of us of course who are members of Parliament felt the loss of Sir David and the shocking situation very keenly. Members of this place across the aisle have spoken recently about the manner in which it is becoming common for some members of our community to speak to and engage with politicians. I think it is touching upon a broader societal trend, sadly. Therefore for a whole host of reasons we will not be opposing this bill. We support a whole range of elements in it. I will be very interested now to go and speak with the shadow minister to determine what he has learned from his briefing, and I will make some further points at the conclusion of the debate in the committee stage.
Dr KIEU (South Eastern Metropolitan) (10:52): I rise to speak to the Terrorism (Community Protection) Amendment Bill 2021. It is a sad fact that we are living in a world where terrorism has been at the forefront, affecting the way of our lives. Since the 2001 attacks in New York many, many incidents of terrorism have spread out all over the world. I will not go through all of them, but I note that recently we had the incident in the UK where a lawmaker was assassinated and murdered during his work. Also recently there were incidents in Christchurch and in Sydney. And if not for the work and intervention of our security agency, there would have been more in our own country.
During COVID-19 lockdowns there have been many opportunities for those extremists to radicalise and recruit people. They could be motivated by political, religious or ideological motivations. Religious motivation, which has nothing to do with a religion’s teaching, is the biggest threat—85 per cent, according to the federal police, and ideological is around 15 per cent. But it is not only those two. There is also an issue, a concern, that has been raised by ASIO about single-cause terrorist acts. Those are the people who have been radicalised or motivated by a single cause, such as multiculturalism, racism or globalisation and other causes that are anti-science and conspiracy theorist. The measures that we need to face those threats are more important than ever.
Terrorism is a fact of life of course. It crosses jurisdictional boundaries, and that necessitates that we as a country and Victoria as a state maintain a national and cooperative approach to counter it. We have the Terrorism (Community Protection) Act 2003 to cover those areas where Victoria continues to have some legislative responsibility. In that act we have a statutory review provision and also a sunset provision that requires us to remake the legislation to enable its ongoing operation, and we need to review that by 1 December this year—that is set out in the sunset clause. We have an expert advisory panel consisting of the Honourable David Harper and a former AFP deputy commissioner.
I am very pleased to see the support from the opposition for this bill. But on the other hand we also note that in the turmoil of the coalition caucus the new Leader of the Opposition, the Honourable Matthew Guy, has removed the ministry for counterterrorism. I do hope that that is not a reflection of the diminution of that very important role that the government and the opposition have to deal with.
I just want to highlight the main points of the bill. The bill will amend the Terrorism (Community Protection) Act 2003 to establish a countering violent extremism voluntary case management scheme, create a support and engagement order scheme to address the underlying causes of persons radicalising towards violent extremism, establish a statutory framework for the Countering Violent Extremism Multi-Agency Panel and establish a standalone information-sharing scheme to support the functions of the Countering Violent Extremism Multi-Agency Panel. In addition the bill will extend the sunset clause of the Terrorism (Community Protection) Act 2003, which currently expires on 1 December 2021, and renew the related statutory review clause, as recommended by the review. It will also amend the Victorian Institute of Forensic Medicine Act 1985 to clarify appointment requirements for the Victorian Institute of Forensic Medicine Council.
The amendments in the bill will implement key recommendations from the expert panel and also review the operation and effectiveness of our laws to prevent, investigate and respond to acts of terrorism and violent extremism. The expert panel also identified the gaps and barriers to multi-agency coordination, particularly within the state and with the commonwealth. We will introduce two early intervention pathways before a person commits a criminal act. For people who are identified as radicalising or at risk of radicalising towards violent extremism, in order to disengage them from those acts we will have early intervention reforms: the countering violent extremism scheme, which is a voluntary case management scheme; and another scheme for those who do not want to participate in the voluntary scheme, which is a support and engagement order from the courts.
Under the voluntary case management scheme, individuals will consent to receive support and participate in a countering violent extremism (CVE) program. It is a preferable pathway and will be attempted whenever possible. If those identified people will not participate in that scheme, Victoria Police may choose to seek a support and engagement order (SEO) from the court in order to address the underlying causes that may increase an individual’s vulnerability to radicalisation towards extremism and violence. At the moment the police may make a detention decision of up to four days for adults and up to 36 hours for children aged 14 or older. In order to support, and prevent some detention of, children we will have additional safeguards to protect them to the greatest extent practicable without rendering the scheme inoperable.
In the review also was a recommendation to remove the definition of ‘terrorism’—namely, to remove the causes, either of political or ideological or religious motivation. But it has been noted by the commonwealth that such removal is not suitable for a definition of ‘terrorism’ as distinct from other acts of violence and extremism, so we will not remove that definition as recommended. We will have instead introduced a uniquely Victorian pathway—either the CVE or the SEO. This is the main part of the bill, along with the creation of the multi-agency panel and a single point of sharing information between the agencies so that we can have early intervention and the prevention of any possible, or potential, acts of terrorism before a person or persons commit any criminal act.
In summary, on the basis of the review, the bill will extend the sunset clause of the terrorism act 2003, which will expire on 1 December this year. The act currently deals principally with powers that enforcement agencies will use when a person has radicalised to the point where a terrorist act is being planned or is about to occur, which may be very late and also difficult to detect, so a range of new reforms in the bill will now provide a framework to help divert vulnerable people away from radicalisation before they present a threat to our community and to protect our community safety. I hereby commend the bill to the house, and I am very pleased to see the support from the opposition.
Dr RATNAM (Northern Metropolitan) (11:04): I rise today to speak to the Terrorism (Community Protection) Amendment Bill 2021. I do so as one of a long line of Greens MPs who have spoken up about the slow but steady erosion of human rights in legislation such as this. The bill before us does two main things. Firstly, it introduces new provisions for early intervention pathways and a multi-agency approach to addressing radicalisation towards violent extremism, and secondly it extends for a further 10 years the Terrorism (Community Protection) Act 2003.
While we understand the need to protect the community against violent extremism, the Greens do not support many aspects of the Victorian Terrorism (Community Protection) Act. One of the key issues in the act that the Greens have raised consistently in this place is the use of preventative detention orders and preventative police detention. I have put on the record our continued opposition to these measures. Preventative detention orders allow a person to be detained in order to prevent a terrorism act from being carried out or to preserve evidence of a recent act. However, these have steadily expanded over the years, with various amendments lowering the thresholds for detention orders, extending orders to children, allowing for police detention orders to be made without Supreme Court oversight and removing the prohibition on questioning during police detention.
As my Greens colleague Sue Pennicuik noted in the debate on the amendments to the principal act in 2018, there is limited evidence for why extra detention powers are needed beyond what is already available under the Crimes Act 1958 and within federal legislation. As they are expanded these extra powers are consistently becoming more repressive and less consistent with fundamental rights and principles of justice.
We know that it is people from minority backgrounds and other people in vulnerable situations within our community who feel the disproportionate effect of expanding police powers and who are most likely to be wrongly targeted and wrongly detained. We have seen this very clearly in the policing of the COVID lockdown and restrictions, where it was the most vulnerable communities, people of colour from non-English-speaking backgrounds and residents in low socio-economic areas, who were disproportionately given COVID fines or targeted by police.
The Greens continue to be concerned about the creeping extension of police powers in Victoria and the creation of bigger prisons and handing of police powers to untrained PSOs. We want to see more of a focus on early intervention and prevention and the adequate provision of social services instead of the law and order responses that this government tends to favour.
I note that there are some prevention-focused measures in this bill that seek to increase engagement in the community and to enhance community safety. These are the voluntary countering violent extremism case management scheme, civil support and engagement orders and the Countering Violent Extremism Multi-agency Panel. We appreciate that with these new mechanisms the government is seeking to create a system to manage early intervention for people at risk of radicalisation. However, we have had raised with us from stakeholders such as Liberty Victoria serious concerns about potential overreach in some of these provisions. In particular Liberty Victoria has pointed out that experts agree it is very difficult to determine the very small group of people who hold extremist beliefs that will transition to violence. They go on to say, and I quote, that because of this:
… there is a high likelihood that individuals will be placed on a scheme even where there is little or no actual risk of them radicalising or committing acts of violence.
This is an important point, because someone who is arbitrarily referred to the scheme without real cause may believe that they are being discriminated against simply because of an attribute such as their ethnicity or religion. In such circumstances the scheme risks ostracising and marginalising vulnerable children, particularly children from minority groups.
Combined with the risks of identifying people for the case management scheme, Liberty Victoria pointed out that there are unjustifiable infringements to privacy and freedom of association for people who have not only not committed any crime but who have not even contemplated doing any act. Liberty Victoria conclude that the scheme will lead to an increase in mistrust among some sectors of the community and that it is open to significant abuses of power. The scheme is subject to annual reviews and reporting, and this continual reporting is important to mitigate risks of abuse of these serious powers.
We are glad to see that the bill specifies that the legislated reviews of the act—both of the new case management scheme and of the act as a whole—must be undertaken having regard to the views of the community and of relevant entities and independent experts. In the past the reviews undertaken of the act have been narrow and with limited broader community awareness or participation. It is so important that the government consults widely on this legislation and hears from a range of stakeholder groups and experts and from the broader community. But it is something that they are not always great at doing, and we are concerned that the two-stage review process undertaken in 2020 and 2021 was done at a time when stakeholders’ and the community’s attention had been rightly focused elsewhere. Yet this bill seems to think that this review was sufficient to extend the act for another decade and sets a sunset of 2031, with the next review to be 2028.
I can see how it might be convenient to put a full review of the act on the backburner and say that we should not worry about these laws until well after we have dealt with this pandemic, but this would be a mistake. Issues do not go away just because no-one is paying attention to them. It is true of climate change, it is true of housing and homelessness and it is true in this case as well.
A lot has changed in Victoria in just 18 months, and a lot will change in the coming years. We are anticipating a new police integrity regime in place and a reform of the mental health system, and we hope to see significant changes to the criminal justice and judicial systems in the coming years. Our legislative process is one of continuous improvement, and for laws like these with significant implications for fundamental rights we need to be constantly revisiting and reviewing them to check that they remain appropriate. We will be introducing amendments to bring forward the expiry of the act to 2026 and the review date to 2024, and I am happy for those amendments to be circulated now.
Greens amendments circulated by Dr RATNAM pursuant to standing orders.
Dr RATNAM: I would also note that the nature of terrorist threats has changed over the last 20 years and will likely continue to change over the next decade, and while the act was created in 2003 in response to anxiety about religious-based extremism, in Victoria in 2021 the growing terrorist threat is coming from the rise of the far right in our state. It has been a challenging two years for our community, and life under a pandemic has proven to be a perfect target for far-right groups, groups who have exploited people’s feelings of anxiety or their isolation during COVID restrictions to spread hatred and encourage distrust and fear. I have seen this clearly in the sheer vitriol that has been posted on social media, emailed to my office or left on my voicemails this week in relation to the revised pandemic legislation. The exhaustion of living under changed restrictions and the anxiety of a public health crisis have been co-opted by groups pushing an anti-democracy, nationalist agenda. People have been swept up in misinformation campaigns designed to promote fear and distrust of government and to further isolate us from each other—the goals of the far right.
With this changing context it is disappointing that we are debating the extension of a system and a policing approach that is not actually that effective in reducing violent extremism when we should actually be talking about what we can do to create approaches and programs that can be more effective. The feedback I have received to date from experts in this field tells us that we should instead be investing in community-building approaches that reduce social isolation and marginalisation. There are a few things that different types of violent extremism have in common, and they are the common denominators of exclusion, isolation, marginalisation and feelings of powerlessness. People who are struggling to find meaningful work, who do not feel like they belong or who have been left vulnerable because of the inequalities of our economic system tend to be the people who gravitate to these extremist movements because it gives them a sense of purpose and feeling of belonging. Knowing this, governments should be investing in programs, services and structural reforms that address these known factors in violent extremism and not in extending laws that only serve to continue to impinge on people’s civil rights and further stigmatise and marginalise culturally diverse communities. Right now our focus must be on bringing our community together again and strengthening our connections to each other, reuniting us where we have been divided and restoring trust and compassion within our community.
Mr QUILTY (Northern Victoria) (11:13): I will be brief. The Liberal Democrats will not support this bill. This bill extends the authorisation of special police units’ powers. It allows preventative detention. These powers are sold as anti-terrorism powers, but they can be applied to a wide range of situations. These powers allow warrantless searches and extended detention without access to a court or a lawyer. Criminal barristers warn that this kind of detention allows for sleep deprivation and interrogation while isolated. Greg Barns is one such barrister. He spoke against these powers when they were introduced. He says:
Anywhere where these powers exist, those are the sort of abuses that routinely occur …
And:
Governments and their advisors say that terrorism will never beat us but yet again, we see a gross diminution of human rights being proposed, the rule of law being trashed …
If we cut down the law to get to the devil, we will have no law to protect ourselves when the devil turns around to meet us. As we have seen all too clearly over the last 18 months, the totalitarian right in Victoria did not begin with the pandemic. For years governments have been pushing these illiberal measures, carving out loopholes in rights. There are always good reasons for it, temporary sacrifices for the duration of the emergency—the emergency that never ends. It is this creeping rot that has emboldened the government to act in the way we have seen in recent days.
Victoria but also Australia and Western democracies in general have been on a downward spiral. Our freedoms are being steadily eroded. We cannot defeat attacks on our society by destroying the principles that make our society worth protecting. We will not consent to further steps along this path. Instead we will push back. Unlike some MPs and parties who apparently pick and choose when they are worried about human rights and creeping police powers, the Liberal Democrats are consistent defenders of the rights of Victorians. The Liberal Democrats believe in freedom over safety, and we reject this legislation.
Ms PATTEN (Northern Metropolitan) (11:16): I rise to make a few comments on this legislation. I do not often say it, but I tend to agree with Mr Quilty, unusual as that may be. I think he does make some good points. This is concerning legislation, and certainly I echo a number of the points that Dr Ratnam made in her contribution about this. This kind of pre-emptive action does not work. It is not based on any evidence, and I think it has actually the greater threat of further radicalising people, of further isolating people. And it is that isolation, that sense of exclusion from our community, that tends to be the precursor for any form of radical extremism that leads to violence. I do support the need for terror legislation, and certainly I respect the recommendations of the expert panel on terrorism, but it is a kind of bracket creep that we are experiencing again, particularly when it comes to children.
In making some comments today I would really like to thank Liberty Victoria, and in particular their outgoing president, Julia Kretzenbacher. She really has been so wonderful in that role as president of Liberty Victoria, and I am sure many of you have had many dealings with her. I have to say I worked closely with her in the process of getting the spent convictions legislation and bill up earlier in the term.
The objectives of this bill say that they are seeking to increase engagement in the community and enhance community safety. That is very laudable. That is exactly what we should be doing. Early intervention is exactly what we should be doing. Community building is exactly what we should be doing. But I really am not certain that parts of this bill do that. In fact I think they do the opposite. As I said at the outset, we should be very wary of any intervention that may alienate a person or sections of a community, because it could have the opposite of the intended effect.
The scheme has the appearance of collaboration, but its structure is geared towards the making and granting of applications for persons who have not been found guilty of anything—of any crime—and now they may be placed on orders with restrictive conditions. This really could be fraught. It is a sort of volunteer program, but if you do not volunteer you get a court order. It is the view of Liberty Victoria that such a scheme is an unjustified intrusion on the rights of individuals to freedom of association, personal autonomy and privacy. As they wrote to me, they have serious concerns as to the breadth of the criteria for a person to become a prospective participant or a participant under this bill.
The bill targets persons who may be radicalising towards violent extremism and the definitions of what is captured include:
A behaviour engaged in with any of the following intentions may, in certain circumstances, indicate that the person engaging in that behaviour is radicalising towards violent extremism—
I will just say that again: ‘in certain circumstances’. Now, I have no idea what those certain circumstances are, and we may explore that in committee. But the bar is pretty low. Engaging in that behaviour is radicalising towards violent extremism by having ‘the intention of advancing a political, religious or ideological cause’. I would probably say most of the MPs in this chamber would be doing that. The lack of definition around ‘certain circumstances’ really does mean, as a result, that the potential for everyone in this room to be captured is not probable but it is certainly possible. New section 22AG(3)(a), as I quoted above, could be interpreted so broadly as to capture conduct engaged in by large numbers of people within our community, even where there is absolutely no identification of any particular act, they have not done any act in preparation, they have not committed any offence, they are not in possession of any item that may lead to violence—and they do not even need to be connected with anyone for the preparation of a particular act. They do not need to be doing any of that, yet they can still get captured by this definition and I think that is incredibly problematic.
It means that the act could be capable of capturing individuals where there is little or no risk of them in fact radicalising towards extremism without intervention. I get the idea of pre-empting terrorism—we want to stop things before they happen, of course we do, and it is challenging. But how do we assess capacity for violence? We cannot. It is impossible to empirically validate the level of threat posed by extremist groups. Based on past events, experts agree that only an infinitesimally small minority of people who hold extremist beliefs actually transition to violence—extremely, extremely, extremely rare. There is no empirically robust method of identifying these individuals and knowing who they will be.
The underlying assumption that supports these pre-emptive policies, laws and severe punishments is that there is a radicalisation process that people step through. They do one thing, then they do another, then they do another and then they commit a heinous violent crime of terrorism. It is a radicalisation process described as a slippery slope or a conveyor belt along which individuals gradually become increasingly entrenched in their radical ideas and ultimately transition from cognitive extremism to a behaviour of violent extremism. However, almost every expert agrees that that transition to violence is not linear, nor is it predictable.
Because of these difficulties, the flip side is that there is a high likelihood that individuals will be placed on this scheme even when there is little or no actual risk of them radicalising or committing acts of violence. And if that happens, then I query whether there is a real risk that targeting individuals in this way, as I said at the outset, will actually have the opposite effect. It will make individuals feel alienated and persecuted, which then may compound any previous low risk into becoming actually a higher risk. So these sections of this bill actually could have the opposite effect of making us less safe, not more safe.
I would say that we have a very good Attorney-General in this state, but I would not like to be in her position in having to prosecute this bill. I have got concerns about this bill, and I will certainly look forward to exploring some of those concerns in the committee process.
The ACTING PRESIDENT (Mr Melhem): Before I call Ms Taylor, the next person on the list after Ms Taylor is Dr Cumming. If you are watching proceedings, Dr Cumming, please make your way to the chamber.
Ms TAYLOR (Southern Metropolitan) (11:25): I know that my learned colleague Dr Kieu has already enunciated a lot of the key elements of this bill, so I do not wish to protract the debate or overlap his discussion but rather just speak to a couple of the issues that have been raised in the chamber and really reiterate something that I think is very critical in this whole debate, because it has to be nuanced for all the right reasons. I completely understand why people quite rightly raise concerns about making sure that we strike the right balance with this legislation, because at the end of the day we are trying to prevent some of the worst kinds of behaviour that we have seen across the globe. I would want to emphasise that a united approach behind our national framework has been established to prevent and disrupt terrorist activity and to protect the Victorian community from violent extremism—particularly as the threat level associated with far-right extremism, which I note has been referred to in the chamber, continues to escalate in Australia.
According to ASIO’s latest threat environment assessment, individuals in Australia continue to be radicalised and the online amplification of radicalisation messages is reaching ever younger targets, which is obviously really disturbing. Just to think that there are vulnerable children who might in any way be influenced by such negativity, such destructive behaviour, is very disturbing. We cannot turn a blind eye to it and say, ‘Oh, well, it’s a younger age group, so therefore we can’t take heed of that’. But at the same time there have to be a lot of checks and balances in this domain, and there are. And I am happy to refer to those.
Specifically if I can go to the issue of preventative detention, I note that there were some concerns flagged about that. We note that the police detention decisions were only introduced in 2018, and prior to this—and it has been flagged in the chamber—preventative detention could only occur via a preventative detention order made by the Supreme Court. You might ask why there has been a change, and I will just speak to the change. The Justice Legislation Amendment (Terrorism) Act 2018 amended the preventative detention scheme to address—and this is the very critical point—deficiencies identified by the expert panel on terrorism and violent extremism prevention and response powers. I am going to speak to the recommendations, but one thing that I will say is that we should not underestimate the innovative elements of this legislation. I am very careful with that word as well because it can go on many tangents, but it really is quite groundbreaking in terms of seeking to prevent people undertaking and engaging in activity which not only would be potentially very destructive to the community but can really destroy their own lives as well. I mean, ultimately if such people can be guided away from destructive behaviour, it is going to be in the end to their benefit, surely.
In line with recommendation 2 of the expert panel report, the police detention decisions scheme, among other reforms, was introduced to address issues including the need for police to be able to respond quickly and effectively to threats that may emerge with little or no warning and about which they may know very little, because unfortunately the extremely dangerous element of terrorism is that you do not have the luxury necessarily of much forewarning at all. And here is that line between keeping communities safe at the end of the day—the fact that a person in detention may be key to police progressing their investigation; the complex nature of terrorism-related investigations and the need for police to collect and analyse large amounts of data and information to substantiate changes; and the time required to prepare an application for a preventative detention order. And there is a lot more detail in that regard. It is certainly a very technical area, as it should be, for all the right reasons. Just if I can zone in, the review also noted the intent that these powers are reserved for true emergency situations, which is reflected in practice. The preventative detention powers have not been used since the 2018 reforms, so I think we can see by that that history is often one of the best educators in terms of how legislation is actually reacted to or implemented or responded to. If I can offer some comfort to the chamber in that regard, I would like to do so. Finally, the review has also found that significant safeguards and oversight mechanisms in relation to children are appropriately calibrated, and I am sure that further information on that will come out through the committee stage.
The ACTING PRESIDENT (Mr Melhem): Before I call the minister, I did call Dr Cumming to come to the chamber. I am still bound to ring the bells because I have not been advised that she is not speaking. I did check with the Clerk. I thought we had changed the orders, but I have been advised we have not. Can the bells be rung? Dr Cumming, if you are listening, please attend the chamber.
Bells rung.
The ACTING PRESIDENT (Mr Melhem): The time has elapsed, and obviously Dr Cumming did not make it to the chamber. I remind members that if they are on the speakers list they should make sure they are in the chamber. I think that is a bad practice and we need to look into it. It can make life a bit difficult for other members.
Ms SYMES (Northern Victoria—Leader of the Government, Attorney-General, Minister for Emergency Services) (11:35): Obviously this bill is going into committee, so we can go through some of the detail during that stage, but at the outset I would like to thank those members that have contributed to this very important reform. This is world-leading legislation. This is having a new approach to terrorism—to those that are at risk of developing extremist views and actions. It is about early intervention and therefore a lower threshold to potentially very concerning behaviour—a therapeutic response which not only brings about a focus on ensuring community safety but also intervening in the lives of people who may find themselves attracted to extremist views and actions and indeed helping them to ensure that this is not a course that they embark on. So it is really good reform. It is unfortunate that we need it—it really is—but we know that threats are real and unfortunately Australia and Victoria are not immune.
In summary, we know through other speakers that the bill amends the Terrorism (Community Protection) Act 2003 and other acts to establish the countering violent extremism voluntary case management scheme. The advice is probably no more than 30 people might be subject to consideration for this scheme—so they are low numbers but important. It creates the support and engagement order scheme to address the underlying cause of persons radicalising towards violent extremism—even smaller numbers again, but it is really important that we get that targeted approach, wraparound services and support for potential offenders with the aim of community safety. The bill also establishes a statutory framework for the Countering Violent Extremism Multi-agency Panel to support the functions of the Secretary of the Department of Justice and Community Safety and establishes a standalone information-sharing scheme to support the system. We will go into discussions about the sunset clause because I know that is of interest to Dr Ratnam. Also the bill will amend the Victorian Institute of Forensic Medicine Act 1985 to clarify appointment requirements for VIFM, which is a small but important amendment.
I will take the opportunity in the summing up to circulate some amendments which will only be considered following a suspension of the standing orders, which will be voted on after the second-reading debate, which we will deal with at that time. But effectively what we will be seeking to do through these amendments is somewhat related to the terrorism bill—we actually hope not, because they are about jury trials being able to be safely recommenced in Victoria. They are very important because they will enable courts to get through the backlogs as soon and as quickly as possible. I will be seeking the support of the chamber to suspend the standing orders to include the amendments in the bill so that we can get this done as a matter of urgency. They have been curated in consultation with the courts and will provide some discretion to the juries commissioner to ensure that the safety of jurors performing that important work is of utmost importance.
Government amendments circulated by Ms SYMES pursuant to standing orders.
Ms SYMES: With those remarks, I am very happy to proceed to the committee stage. I know there are a few questions that members are interested in going through. Again, I thank the members that have contributed to this very important bill, and I do thank those who have gone on the record supporting it, particularly Dr Bach for his comments in relation to what this bill aims to do and hopefully will achieve.
Motion agreed to.
Read second time.
Instruction to committee
The ACTING PRESIDENT (Mr Melhem): I advise the house that I have considered the amendments proposed by Ms Symes, and in my view it is likely that they are not within the scope of the bill. In certain circumstances an instruction to the committee of the whole under standing order 15.07 is sufficient to empower the committee to consider amendments. The practice of the house is that an instruction motion can only instruct the committee to consider amendments reasonably connected to the subject matter of the bill. In this case the amendments exceed that threshold, and therefore standing orders will need to be suspended in order for the committee to consider these amendments.
Ms SYMES (Northern Victoria—Leader of the Government, Attorney-General, Minister for Emergency Services) (11:40): I move:
That standing orders be suspended to the extent necessary to allow the committee to have the power to consider amendments and new clauses to amend the Juries Act 2000 to provide that the juries commissioner may exempt a person or class of persons from selection to be summoned for jury service based on health, safety or welfare concerns.
In moving that, I will just make a few remarks in addition to the summing up. There is an urgent need to give courts certainty about their ability to ensure jurors are fully vaccinated, and so that is why we have asked for the agreement of the upper house to allow the passage of these amendments in this way in this bill, because the justice bill that is in the house this week is a terrorism bill. So effectively I am asking for agreement to use it effectively as a vessel to make this very small but important change. It has been subject to consultation with the Criminal Bar Association, the Victorian Bar, the Law Institute of Victoria, the Supreme Court and the County Court. It has come about from quite a few changes and different models considered in the last few days. So I do apologise that it has only been finalised in the last day or so. We have sought to engage members of this chamber and the opposition shadow minister in the last 24 hours, and thank you to the shadow minister’s office for taking on a briefing in relation to this matter. I am hoping that we can get through this through the important Terrorism (Community Protection) Amendment Bill 2021, but it is just a small and important amendment to assist the courts to get on with their important work.
Motion agreed to.
Committed.
Committee
Clause 1 (11:44)
Mrs McARTHUR: I have got questions relevant to various clauses. Do you want me just to go through them and see where they land, Minister?
The DEPUTY PRESIDENT: The Attorney-General is happy to take them on clause 1.
Mrs McARTHUR: Thank you. Attorney, my question firstly relates to new section 22AG. Could opposition to vaccines, vaccine mandates, COVID restrictions or any other related view be considered a political cause or an ideological cause for the purpose of new section 22AG(1)(a)?
Ms SYMES: What clause are you on? I am sorry, Mrs McArthur.
Mrs McArthur interjected.
Ms SYMES: Thank you, Mrs McArthur. Obviously finding the clauses when we are not going in order—I appreciate your—
Mrs McArthur: My apologies.
Ms SYMES: No, no. There is a lot in clause 6. The answer to your question is that it would depend on the circumstances. ‘Right-wing extremism radicalising behaviour’ is extremely broad and difficult to define but is something that would be depending on the circumstances of each particular case—how concerning particular behaviour was, underlying threats, the evidence that police in particular have had brought to their attention. This is all about ensuring that those that are radicalising towards violent extremism in a terrorism sense can be dealt with early—early intervention, diversion and therapeutic responses. We are not intending to confine the definition, because it is very broad behaviour that could ultimately be of a concern to police in particular.
Mrs McARTHUR: Thank you, Attorney. Can you confirm then that opposition to vaccines, vaccine mandates or COVID restrictions could in your definition be considered right-wing extremism?
Ms SYMES: No, Mrs McArthur, I cannot confirm that.
Mrs McARTHUR: Thank you, Attorney. The definition of ‘radicalising towards violent extremism’, upon which the ability for the courts to grant support and engagement orders (SEOs) relies, includes ‘the process of coming to support the commission of an act’ that is defined as a ‘terrorist act’ in the principal legislation. One of those actions in the principal act—an action that ‘creates a serious risk to the health or safety of the public or a section of the public’—could be considered a terrorist act per section 4(2)(e). Under new section 22AG(1)(a), the definition in the bill can be satisfied if the act is advancing a political cause. Does the Attorney believe that the process of coming to support the encouragement of flouting of public health directions or perhaps pandemic orders, should a future bill pass, might constitute radicalising towards violent extremism, given that the government might argue that it is an act which creates a serious risk to the health of the public?
Ms SYMES: Mrs McArthur, the advice I have through the experience of those involved in this area of law enforcement and intelligence gathering is that it is expected that there would be up to five individuals that may be subject to an order to be considered by the court—so behaviour that is concerning and may lead to terrorist activities and harm to the state. It is not designed to pick up people who have an alternative view to that of the government or have concerns with any particular laws that we make. It is about threats to the state.
Mrs McARTHUR: Thank you, Attorney. Can you define ‘threats to the state’?
Ms SYMES: Mrs McArthur, in relation to my answer to your previous question, it is terrorism acts that may be of concern to police that would cause harm to individuals or property. This is a bill that has been crafted on the experience of those that unfortunately have suspicions of people who may hurt themselves or hurt others, and this is designed to divert them away from such behaviour.
Mrs McARTHUR: So, Attorney, that would exclude protesters that are protesting against, for instance, pandemic laws at the moment unless they were—what—involved in perhaps producing a bomb or something like that?
Ms SYMES: As I have previously outlined, Mrs McArthur, it is not my intention to define the activities that could be determined as at risk of radicalising or people becoming attracted to extremist behaviour and actions, but merely attending a protest would need other circumstances, facts and intelligence around it to create a concern for someone to be considered appropriate for diversion into either the involuntary scheme or the order scheme through the courts.
Mrs McARTHUR: Attorney, why isn’t it important to define what areas of radicalism you intend to incorporate into this legislation?
Ms SYMES: Mrs McArthur, it is difficult to confine instances of radicalisation—radicalising behaviour. It is not a term that is easily defined. It is not something we seek to or want to confine. This is about preventing harm to individuals and the state. It is designed to pick up behaviours that police at the moment are a little bit hamstrung in being able to deal with. So they might have suspicions about someone and cannot act until somebody does something awful, and this is a way to make sure that they can pick up those individuals where they may have surveillance on some of their internet activities or the like—you mentioned bomb-making. So just concerns—being able to intervene early, acting on information that someone else might bring to their attention. That threshold is lower so that you can assist people to get the support they need so that they are prevented or dissuaded from entering into further activities that may result in terrorist-type activities. It is also a feature that it is a particular area of behaviour that people are susceptible to being groomed into, so somebody identified as at risk of being groomed by some of these groups may be an appropriate person to divert to these programs under the scheme should they display any of those concerning behaviours at that lower sort of test—that is, not having to wait for someone to break the law before they can be appropriately dealt with.
Mrs McARTHUR: Thank you, Attorney. I am just wondering if in this radicalisation of behaviour which could result in violent activity towards others or property of others you would include, for instance, animal activists.
Ms SYMES: I think my answer would be similar to that to your question around whether people attend protests. I think it comes down to the particular circumstances of each case, and people that are referred into these programs would be referred particularly by people that are—unfortunately—experts in concerning behaviour that has the capacity to escalate into more dangerous behaviour.
Mrs McARTHUR: Thank you, Attorney. In the COVID-19 Omnibus (Emergency Measures) and Other Acts Amendment Bill 2020, which passed last year, the definition of activities that involve an immediate risk to the health or safety of a person was expanded to include breaches of public health directions. The government clearly believes that breaches of these directions create a serious risk to the health of a section of the public. So, Attorney, could the government, under this legislation, apply to the court for support and engagement orders for those who are in the process of coming to support the encouragement of Victorians flouting these directions?
Ms SYMES: No, Mrs McArthur. The government would not make applications. That is not the role of the government, and the behaviour or activity as you have described it does not fall within the remit of this bill.
Mrs McARTHUR: Thank you, Attorney. In new section 22AG(1), coming to support actions that fall within section 4(3) of the principal act are excluded from constituting the process of radicalising toward violent extremism. Section 4(3) of the principal act is qualified by a prohibited intention of creating a serious risk to the health or safety of the public or a section of the public. In other words, a protest that is deemed to have the intention of creating a serious risk to public health is not excluded from new section 22AG. So, Attorney, do you believe that the definition in new section 22AG could therefore apply to support for protests that are anti vaccine, anti vaccine mandate or anti COVID restrictions given that the government believes they create a serious risk to public health?
Ms SYMES: Thanks, Mrs McArthur. It might be useful for you to provide some of these questions in advance, because you are comparing different bills. As I have said, I am open to answering questions in clause 1, but when you have specific clauses you want information on that creates a bit of a challenge. But I think I have answered your question in relation to it not being my intention, and it would be inappropriate for me to seek to use the committee stage to define and confine the definition of what might be concerning behaviour that the experts may consider may result in somebody being of concern in a terrorism context.
Mrs McARTHUR: Thank you, Attorney. So then for new section 22AG(2)(b), which provides that a person may be radicalising towards violent extremism even though they have not ‘done an act in preparation for, or in the planning of, a terrorist act’, could you, Attorney, provide some examples of specific actions that might demonstrate that they are radicalising towards violent extremism that do not include actual preparation or planning?
The DEPUTY PRESIDENT: Attorney, sorry, we are going to have to interrupt for question time, so you might get that advice.
Ms SYMES: That would be better to give me time for a detailed response to that question, because I have got some hypothetical case studies which may help you understand the application of the laws that we are proposing.
Business interrupted pursuant to sessional orders.
Questions without notice and ministers statements
COVID-19 vaccination
Ms CROZIER (Southern Metropolitan) (12:01): My question is to the Minister for Small Business. Minister, the chief health officer directives require that a business must collect, record and hold vaccination information. Additionally, training is required for businesses to employ COVID check-in marshals. Minister, in New South Wales there is not a specific COVID-19 marshal required. Instead businesses are asked and trusted to, and I quote, ‘take reasonable steps’ to identify a patron’s or staff’s vaccine status. Minister, what is the government’s advice as to the additional costs to businesses to maintain and abide by the chief health officer’s directives?
Ms PULFORD (Western Victoria—Minister for Employment, Minister for Innovation, Medical Research and the Digital Economy, Minister for Small Business, Minister for Resources) (12:01): I thank Ms Crozier for her question. The costs to our business community of the pandemic and the restrictions that have been required to manage outbreaks and indeed now to manage our reopening have been significant. In terms of how those are quantified, there is economic analysis that occurs each day of lockdown and accounts by economists and commentators throughout the pandemic. Conversely there was some interesting data from the National Australia Bank about the I think $350 million of extra expenditure in the week just gone compared to the week before. Obviously the impacts are significant. I think most analysts would agree and most economists would agree that the consequences of letting the pandemic run would be profound for our business community. Of course there are some small businesses that have started and grown and thrived through this period, and there have been others in sectors that are well known and familiar to all members in this place that have been very significantly impacted. They are now, I think, overwhelmingly very, very pleased to be opening up.
In terms of the COVID marshal arrangements that apply in some business settings for some businesses, they are typically an existing staff member, and these roles are performed in addition to the person’s usual duties. As is the case when a young person turns up to the bar and is asked to demonstrate that they are over 18, it is about that onerous to require someone to check in. As members know, I have had the pleasure of living in regional Victoria throughout this period. We have been open for quite a bit longer than Melbourne and more so on quite a number of occasions, so I can certainly share with the house observations about the relative ease and the preparedness of our business community to do this. They understand that vaccination, that vaccination mandates and that checking the status of patrons and customers is absolutely essential for their being open.
Ms CROZIER (Southern Metropolitan) (12:05): Minister, thank you for that response and the acknowledgement of the impacts that you mentioned on so many businesses that have done it extraordinarily tough. We know that many businesses will not survive this pandemic. With such excessive penalties for non-compliance, is the government considering reviewing the harsh requirements and penalties that will be applied, for example, to a business for failing to have a COVID check-in marshal in place at all times?
Ms PULFORD (Western Victoria—Minister for Employment, Minister for Innovation, Medical Research and the Digital Economy, Minister for Small Business, Minister for Resources) (12:05): The penalty regimes that are applied as part of the Public Health and Wellbeing Act 2008 are obviously predominantly under the remit of the health minister and the directions that are given legal effect by the chief health officer, but Ms Crozier is asking about the impact of those on small businesses. Most small businesses are not required to have a marshal. A separate appointed person performing that role is more typically applied in larger organisations. But, as I indicated, if you have a business with 10 or less employees or 20 or less employees, depending on which definition of ‘small business’ you would like to apply, then managing the comings and goings of patrons and customers is just an everyday part of the business, and it is being well managed by people who are committed to the system being safe for all.
COVID-19 vaccination
Dr RATNAM (Northern Metropolitan) (12:06): My question today is to the minister representing the Minister for Health. The City of Melbourne in my electorate has seen a significant reduction in population over the last two years due to the pandemic. This includes thousands of international students who have returned home, students from regional or outer suburban areas who have returned to their family homes and other residents who left the CBD and inner city during the pandemic. This means that, although the vaccination rates in the City of Melbourne look low, they are likely a significant underestimate. This is also a possibility in other inner-city areas with high numbers of young people. Understandably my constituents are keen to know what the accurate vaccination rate in the City of Melbourne is as we start to open up, especially as things like travel to other states may be contingent on these vaccination rates. Does the government have any more accurate data on population numbers and vaccination rates in the City of Melbourne, or are they still working from the 2019 population statistics?
Ms SYMES (Northern Victoria—Leader of the Government, Attorney-General, Minister for Emergency Services) (12:07): Good question, Dr Ratnam. This is a topic of conversation that has been going on within government when the rates are surprisingly low for these local government areas. As you have identified, there are a number of reasons in terms of accurate data about the current residence of people that may have moved on. So, yes, it is being looked at. I think I will leave it to the Minister for Health to provide you with the details, but certainly there have been conversations about trying to get a true picture of particularly some of the inner-city LGAs and their vaccination rates, because we know that there probably is a reason that they are lower than what they probably truly are.
Dr RATNAM (Northern Metropolitan) (12:08): Thank you, Minister. I really appreciate that the government is looking at it and look forward to finding out a little bit more. Furthermore, in relation to vaccination uptake in the area, the City of Melbourne has one of the youngest populations in the state. It also has a very transient population, which may not be connected to GPs or other health services or community groups to help them get information about the vaccine. However, given the concentrated geographical area, this presents an opportunity to have pop-up vaccine clinics right where people are shopping, working, dining and living as we open up. Will the government to commit to running mini pop-up vaccination clinics in areas that young people in the CBD and inner suburbs frequent, such as the Melbourne Central shopping centre and other areas popular with young inner-city residents?
Ms SYMES (Northern Victoria—Leader of the Government, Attorney-General, Minister for Emergency Services) (12:09): The answer to your question is yes. I will get some specific details, which will be great for you to have to help advertise it once there are some pop-ups available in your electorate.
Ministers statements: business support
Mr LEANE (Eastern Metropolitan—Minister for Local Government, Minister for Suburban Development, Minister for Veterans) (12:09): I am very keen today to update the house on the COVIDSafe Outdoor Activation Fund, which last week was announced, a $54.5 million outdoor economy package to help businesses, councils and communities breathe new life into local neighbourhoods. Forty million dollars will be allocated to councils through the COVIDSafe Outdoor Activation Fund to help them transform even more outdoor areas so Victorians can get out and support their local businesses safely as we reach double-vaccination thresholds. I am very pleased to report that through this fund councils will be able to support a wider range of businesses and industries and put in place permanent infrastructure so that the community can enjoy outdoor spaces this summer and beyond.
This funding will be delivered in two streams. $20.5 million will be available to enable councils to support all businesses that want to utilise outdoor space and expand their capacity safely when they open up. This funding can be used to waive permit fees to assist businesses that wish to expand their operations and utilise a nearby outdoor area. And $19.5 million will be available to councils to establish new outdoor precincts to support main streets and shopping strips to enable more creative performances and local events and to help outdoor community spaces. In order to receive funding, councils must demonstrate that any costs incurred or loss of revenue as a result of the activation of outdoor spaces will not be levied on to local businesses.
This is all about supporting our businesses to open up and encouraging Victorians to get out and support their local businesses. Can I also acknowledge Minister Pulford’s involvement in this funding—her passionate advocacy for this funding to be available—and say what a fantastic minister Minister Pulford is. Her passionate advocacy actually helped to deliver this package.
Agricultural machinery
Ms BATH (Eastern Victoria) (12:11): My question is for the Minister for Workplace Safety. Published in the Weekly Times this week: WorkSafe has ‘walked away from three years of negotiations’ with the Victorian Farmers Federation and farmers who have proactively been calling for an ag-specific safety course for the use of telehandlers on primary production properties. Minister, your government funded consultants in these negotiations, and I ask: what is the total cost of taxpayer-funded consultants for these failed negotiations?
Ms STITT (Western Metropolitan—Minister for Workplace Safety, Minister for Early Childhood) (12:12): I thank Ms Bath for her question. Of course it is an incredibly important area. Agriculture is a high-risk industry and over the past 10 years has had one of the highest numbers of fatalities of any industry. Perhaps in the answer that I give I can allay some of the concerns that Ms Bath has in relation to this matter, because I am committed to making sure that there are sound arrangements in place for the regulations and the licensing arrangements and training around telehandlers. I do note that there have been some serious incidents in the last few weeks even with telehandlers.
The licensing regime is really designed to reduce the risk of serious injury and fatalities, because there are some requirements around those who operate equipment over 3 tonnes having to be able to demonstrate the requisite skills that they would need and the competencies necessary for the safe operation of this plant in our agricultural sector. WorkSafe is currently looking at several options to address the licensing requirements and training available for telehandlers, and I am advised, Ms Bath, that the regulator is engaging with sector representatives, including reviewing any impact that altering these arrangements may have on safety.
I do acknowledge the feedback from those in the sector around the concerns around the arrangements, and I have written to the Victorian Farmers Federation about these matters. I can confirm that—
Ms Bath: On a point of order, President, I appreciate the minister is responding to the general discussion around telehandlers, but I did ask a specific question in relation to the cost of consultants that has been going on for three years.
The PRESIDENT: The minister has still got over a minute.
Ms STITT: Ms Bath, I can confirm that I have requested that WorkSafe establish a stakeholder reference group to explore the options for a standalone telehandler-licensing arrangement for the sector, but I have to say that it is incredibly important that any training requirements or ongoing licensing arrangements in relation to telehandlers have to be fit for purpose. I am committed to that work being done in consultation with key stakeholders, but any changes that do come cannot be at the expense of workplace safety. And that is, I am sure, something you would agree with.
Ms BATH (Eastern Victoria) (12:15): I note the minister did not even mention the cost, so I am assuming that she is going to provide that information in a very short space of time. Minister, given your government has walked away from this issue, leaving farmers to operate in a high-risk environment despite proactively, for three years, asking for ag-specific training, will you now assure Victorian producers will not be targeted and prosecuted by WorkSafe inspectors for the use of telehandlers that they cannot get proper training for?
Ms STITT (Western Metropolitan—Minister for Workplace Safety, Minister for Early Childhood) (12:15): I just spent 4 minutes explaining to Ms Bath that we are taking steps to address this incredibly dangerous plant in agricultural settings—that we will work closely with stakeholders, that I have written to the Victorian Farmers Federation about this and that there will be further work undertaken, including a specific stakeholder group set up for these discussions. Ms Bath’s supplementary question completely ignores my answer to the substantive question and asserts a whole lot of stuff that is completely at odds with my answer.
Health justice partnerships
Ms PATTEN (Northern Metropolitan) (12:16): My question is for the Attorney-General. Since 2015 the Mental Health Legal Centre and Bolton Clarke homeless persons program have delivered a unique health justice service to the most vulnerable people in our society. Much of their work has been to help women with PTSD from domestic violence and people with acquired brain injuries navigate legal issues. We know our most vulnerable are the most likely to be caught up in the justice system. Their service provides legal advice, financial counselling and social workers to help people in prison, but this service will stop in December because the government has withdrawn their funding. The health contract for the justice system is set to expire in December. I am wondering if you can tell me whether that contract will go to another health organisation such as Cohealth or a security firm such as Serco.
Ms SYMES (Northern Victoria—Leader of the Government, Attorney-General, Minister for Emergency Services) (12:17): Whilst I welcome Ms Patten’s question, I do not have any advice on the specifics that she has raised. I believe the matter would be more appropriately directed to the Minister for Corrections, or indeed the Minister for Mental Health perhaps, but I think more corrections. How about I take it on notice and get some further information? I can get some information specifically about the funding directly for the community legal centre.
Ms PATTEN (Northern Metropolitan) (12:18): Thank you, Minister. That would be appreciated. The funding is coming out of the justice department, and you are at the head of that. By way of supplementary: since March 2020 the demand on this service has more than doubled, so the need for investment in these outreach services is absolutely crucial, so while you are looking at that funding, could you also consider whether it is adequate? These are prisoners who cannot access Medicare and cannot access the NDIS, so they are completely reliant on Justice Health.
Ms SYMES (Northern Victoria—Leader of the Government, Attorney-General, Minister for Emergency Services) (12:18): I thank Ms Patten for raising this important issue. I agree with you that the services that people receive in prison are solely what help them set up for when they are out of prison, so it is pretty important to ensure that they get accurate advice and support, particularly to deal with their legal issues and their mental health issues. I will certainly be able to get some further advice and come back to you.
Ministers statements: business support
Ms PULFORD (Western Victoria—Minister for Employment, Minister for Innovation, Medical Research and the Digital Economy, Minister for Small Business, Minister for Resources) (12:19): As of yesterday, Victorian businesses are able to apply for vouchers to help them take advantage of open-air trading opportunities as the state prepares for the next big step of reopening on Friday at 6.00 pm. More than 7000 vouchers valued at $2000 are available to help pay for the hire and purchase of furniture and equipment and other costs as part of the government’s new $54.5 million outdoor economy package. The COVID-safe outdoor activation voucher program is open to business, community organisations, not-for-profits, charities and trader associations to set up street trading and invigorate local areas.
Mr Finn: Does it include umbrellas?
Ms PULFORD: Successful businesses will be able to use their voucher for expenses including purchasing and hiring marquees, screens—yes, Mr Finn—umbrellas, obtaining insurance and promoting outdoor operations. Restaurants, cafes, hotels and bars are eligible to apply, as are hairdressers, beauty services, dance studios, gyms and retail shops, including Brunswick fashion label Kindling, which has created a welcoming space for customers to browse and try on clothes in its courtyard. The courtyard had previously been used as a break area. Applicants to the program must provide a plan detailing how they will be creating these additional business activities and opportunities and demonstrate that the voucher payment has been spent on eligible items over the next three months.
The outdoor economy package complements the $40 million COVIDSafe Outdoor Activation Fund Mr Leane was referring to just a few moments ago, which is about transforming outdoor areas into wonderful, vibrant spaces. It has been a delight to work with Mr Leane on the development of this package. For over 15 years now—at the risk of offending the rest of you—he has been an absolute favourite colleague. He is a terrific minister. We are working together on lots of different things, and it has been a delight to work together on this one.
Fire services response times
Mr DAVIS (Southern Metropolitan—Leader of the Opposition) (12:21): My question is for the Minister for Emergency Services. Minister, in 2018 the then Minister for Emergency Services, James Merlino, promised response time data for the fire services would be released every quarter to, and I quote, ‘improve transparency and better inform local communities’. Despite this promise, data is only current to 30 December 2020. That is 10 months of missing data. Minister, why is the Andrews Labor government hiding this data?
Ms SYMES (Northern Victoria—Leader of the Government, Attorney-General, Minister for Emergency Services) (12:21): Thank you for your question, Mr Davis. I will take that on notice and see how quickly I can get you some data. I have no intention of sitting on data if it is available.
Mr DAVIS (Southern Metropolitan—Leader of the Opposition) (12:22): In that context, Minister, will you make the commitment to Victorians that from here on in the response data will be released on time every month, every quarter?
Ms SYMES (Northern Victoria—Leader of the Government, Attorney-General, Minister for Emergency Services) (12:22): I am happy to do my best in ensuring that data is available in a timely fashion.
Drug Courts
Ms MAXWELL (Northern Victoria) (12:22): My question is to the Attorney-General. Attorney, court reports from Mildura are filled with cases linked to drug use and abuse, particularly relating to ice. Mildura desperately needs a dedicated drug and alcohol rehabilitation centre. Drug Courts are also proving to be quite successful in linking therapeutic interventions, such as rehabilitation, into the justice process. Given the pressing issues of drug-related offending in the Mallee, could you please advise what, if any, consultation is underway for establishing a Drug Court in the Magistrates Court of Mildura?
Ms SYMES (Northern Victoria—Leader of the Government, Attorney-General, Minister for Emergency Services) (12:23): I thank Ms Maxwell for her question and the opportunity to talk about Labor’s introduction of Drug Courts into the state of Victoria. Of course many of you are aware that the Drug Court model was brought to Victoria, brought to Melbourne, from the United States by former Attorney-General Rob Hulls, and the first site opened in Dandenong. The model was subsequently expanded to Melbourne, with two Drug Courts operating in this location. We further provided $35 million in the 2019–20 state budget to establish the County Court drug and alcohol treatment court pilot and expand the Magistrates Court Drug Courts to Ballarat and Shepparton. We are big supporters of the Drug Court. I have recently visited the Dandenong Drug Court and spoken to participants of that court, and they are brilliant.
The Drug Courts in Ballarat and Shepparton are the first regional locations to have the program, with hearings expected to begin in the coming months. The investments over many years that I have run through I think certainly demonstrate that we are committed to the Drug Court model and its widely celebrated successes. Noting that we are still in the process of standing up the first regional Drug Courts, the findings of the rollout will be extremely critical to consider our next steps.
Ms MAXWELL (Northern Victoria) (12:24): Thank you, Attorney. The 2014 evaluation of Drug Courts recommended collection of longitudinal data on a range of patterns including reoffending for both completing and non-completing clients. This data could be imperative to supporting an evidenced-based approach to assess the need for such a Drug Court in Mildura. Could you provide an update on the collection of this data and public reporting of the results?
Ms SYMES (Northern Victoria—Leader of the Government, Attorney-General, Minister for Emergency Services) (12:25): In relation to the 2014 evaluation, they were independent consultancies, both from 2005 and 2014, and certainly showed not only that this investment is good but that the cost-benefit ratio community dividend is five to one, which is fantastic. The evaluations also found a 32 per cent reduction in unemployment rates, a 70 per cent reduction in the number of prison days required and a 21 per cent reduction in reoffending rates. We are constantly evaluating the government’s funded initiatives, but I would reiterate that we know that Drug Courts work. They provide a wonderful opportunity for people to deal with their underlying causes of crime and put them back onto the right path in terms of their lives.
Ministers statements: early childhood education
Ms STITT (Western Metropolitan—Minister for Workplace Safety, Minister for Early Childhood) (12:26): More young children across the state will have access to better kinder facilities thanks to the second round of grants from the $30 million refurbishment and minor grants program. Grants worth more than $2.71 million will fund 32 projects at centres offering a funded kindergarten program across the state, in addition to the $12 million already provided for 105 projects earlier this year. Thirteen projects will receive grants of up to $500 000 for major works and refurbishments, while 19 centres will receive grants of up to $50 000 for minor projects. Projects include improvements to indoor learning areas, playgrounds, staffroom upgrades, kitchen refurbishments, toilet upgrades, painting, fixing leaks, extending verandas, landscaping, and fixing or installing new fences. Whether it is upgrading an ageing facility at Hepburn Kindergarten or upgrading the outdoor play space at Surrey Hills Preschool, these projects are all about providing better facilities and stimulating the economy with construction jobs that can get underway quickly right across Australia. It is all part of our commitment to improving early learning across Victoria with nation-leading reforms and a record $5 billion this decade to provide three-year-old children with access to an additional year of funded kindergarten programs.
Independent Broad-based Anti-corruption Commission
Mr DAVIS (Southern Metropolitan—Leader of the Opposition) (12:27): My question is to the Attorney-General. Attorney, I refer to sections 7, 7A and 52 of the Parliamentary Committees Act 2003 insofar as those sections relate to public interest disclosures about the conduct by or in the Victorian Inspectorate and note that under this act the President of the Legislative Council has a series of roles. I ask therefore: how can the President perform these roles with complete integrity when his name has appeared so frequently in sworn evidence before the Independent Broad-based Anti-corruption Commission in relation to corrupt employment practices by giving factional allies taxpayer-funded roles in his electorate office?
Ms SYMES (Northern Victoria—Leader of the Government, Attorney-General, Minister for Emergency Services) (12:28): Mr Davis, that is just another way of asking a series of similar questions that you asked on Tuesday. Merely being mentioned in any forum, whether it is the media, a public hearing or elsewise, does not rule you out of anything. It does not confirm inappropriate behaviour. It does not even confirm that you are under investigation, which you try and assert. So of course there is no issue here.
Mr DAVIS (Southern Metropolitan—Leader of the Opposition) (12:29): With respect, Attorney, we disagree. Minister, New South Wales premiers have recently and earlier done the right thing and resigned not just from their roles as Premier of New South Wales but also from the New South Wales Parliament as a result of allegations—
A member interjected.
Mr DAVIS: Actually it is. Why is the situation so different in Victoria, where it has been proven that Mr Elasmar corruptly authorised 70 days of field work by Luke Maxfield, money repaid by the ALP, and he now faces repeated mentions and concerning allegations in the IBAC?
Ms SYMES (Northern Victoria—Leader of the Government, Attorney-General, Minister for Emergency Services) (12:30): Mr Davis, I refute the assertions in your question. In relation to New South Wales, the former Premier of that state stood down for a breach of the ministerial code that she brought in. She did not stand down because somebody said something about her, which is what you are trying to do here. I stand by my comments. There is no reason for the President to respond to the fact that someone has mentioned him somewhere in some public forum. Let us allow IBAC to undergo their hearings and investigations without political interference and commentary.
COVID-19
Mr BOURMAN (Eastern Victoria) (12:30): My question is for the minister representing the Minister for Health, which is Minister Symes, I believe. There has been a lot of confusion around different gun clubs about how they need to operate, particularly with the changes in the requirements coming up, because not all gun clubs are created equal. Not all pistol ranges are the same. Not all are open air; some are indoors, some are partially indoors. There are all sorts of things. Not all rifle ranges are the same, nor are all shooting ranges. The government needs to clarify the operations of these sporting clubs, as they may also come under community sporting clubs. So my question is: will the government urgently contact the relevant shooting bodies and clubs to ensure they know and therefore can comply with the relevant rules?
Ms SYMES (Northern Victoria—Leader of the Government, Attorney-General, Minister for Emergency Services) (12:31): I can seek a detailed answer for you, but I would say that I have had similar interactions with golf courses—clubhouses versus outdoor sport et cetera—and I know quite a few particular clubs are requiring their members to be vaccinated in accordance with their own decisions that the clubs have made. I think it is probably more appropriate for the gun clubs to interact with the Department of Jobs, Precincts and Regions from a community sport perspective, which can ensure that they are provided with advice that is tailored to a sporting club from a department that would have had more experience with those organisations. They can help them interpret any of the health advice. A lot of the decisions will be a matter for the gun clubs themselves, but the advice to give them confidence to make those decisions is something that I think we can facilitate through DJPR.
Mr BOURMAN (Eastern Victoria) (12:32): I thank the minister for her answer. You kind of covered off on my supplementary, but I will run through it anyway. Obviously vaccine requirements vary given the different circumstances. As I said, some are indoor, some are outdoor and so on. We just need to know the vaccine requirements. It is going to be down to an individual club, so will the government actually help individual clubs figure out their requirements?
Ms SYMES (Northern Victoria—Leader of the Government, Attorney-General, Minister for Emergency Services) (12:32): I am very happy to make representations to the Department of Jobs, Precincts and Regions, because they have certainly developed fact sheets and advice for businesses, and the community sport part of that department has been very active in this regard as well. So I am sure that we can make that available. Perhaps I can let Minister Spence’s office know that you are after further information and get that facilitated.
Ministers statements: Monash University net zero initiative
Ms TIERNEY (Western Victoria—Minister for Training and Skills, Minister for Higher Education) (12:33): Our environment matters, and we want to secure its future for generations to come. That is why I was proud to announce an $11 million investment to help Monash University slash its emissions to net zero by 2030. It will form part of this government’s pledge to halve emissions in Victoria by the end of the decade, ahead of our net zero target by 2050. Our investment will help Monash transition to 100 per cent renewables across its four campuses. The university has already reduced its emissions by 40 per cent, and currently more than half of its energy is clean and green.
The next phase will take Monash through a complete physical and digital transformation: powering heating and cooling systems with electricity at the Clayton campus; implementing new artificial intelligence systems to increase energy efficiency at Clayton, Caulfield, Peninsula and Parkville; and creating a new virtual learning platform to foster collaboration between the university and renewable energy sectors on commercially viable net zero solutions. By protecting our environment we are also creating opportunities for Victorians. One hundred jobs in energy efficiency and construction will be created as part of this project, as well as great research and learning opportunities.
This project is setting an example for other universities, and it would not be possible without the unprecedented $350 million Victorian Higher Education State Investment Fund, which has helped local universities with game-changing projects throughout the pandemic. The Monash net zero project is great news for Victorians and great news for Victoria’s clean, green future.
Written responses
The PRESIDENT (12:35): Regarding questions and answers today: Dr Ratnam to the Minister for Health, two days, question and supplementary; Ms Bath to workplace safety, one day for the question; Ms Patten to the Attorney-General, two days, question and supplementary; Mr Davis to emergency services, Ms Symes, one day for the question; Mr Bourman on the health issue, two days, question and supplementary.
Constituency questions
Northern Metropolitan Region
Mr ONDARCHIE (Northern Metropolitan) (12:36): (1490) My constituency question today is for the Minister for Energy, Environment and Climate Change. It has been almost two years since home owners in Bundoora and Mill Park were forced to flee their homes as flames whipped past their homes and scorched more than 40 hectares of land during the December 2019 Plenty Gorge bushfire. The Plenty Gorge fires have been forgotten about with the global pandemic, but many still remember that fire season. I witnessed how the fire ripped down the Plenty Gorge, threatening residents’ homes in Mill Park, and it was a frightening experience for many in the local area. It was not far from where I live and very close to many of my friends’ homes. Many people in that area are still recovering from the damage, but locals have reported to me there is a new sign of life coming through the vegetation, and it is time to support a regeneration of that area. My question to the minister is: will the government commit $275 000 to the City of Whittlesea Worcester Park bushfire regeneration program, Bundoora, so my residents can have a cleaner and safer Plenty Gorge and bring life back to those residential estates?
Western Metropolitan Region
Dr CUMMING (Western Metropolitan) (12:37): (1491) My question is to the Minister for Housing in the other place, and it is from a resident, Eddie Merrifield, from West Footscray. Will the minister ensure that the communications with social housing tenants allow a reasonable time for people to respond? Mr Merrifield received a letter from the executive director of the Department of Families, Fairness and Housing. A review is being undertaken to inform future social housing changes and ‘ensure renters are at the centre of future decisions’. This letter invited him to take part in this review and to make a submission. While the letter may have been dated 29 September, it was not received until 8 October because of the current postal delays due to COVID. Unfortunately the feedback was required by 11 October. Mr Merrifield would like to know if these deadlines could be changed so he could respond to the department.
Western Metropolitan Region
Mr FINN (Western Metropolitan) (12:38): (1492) My constituency question is to the Minister for Planning, and I refer the minister to considerable disquiet among residents of Keilor Downs who have had a proposed social housing development in Copernicus Way in Keilor Downs. I have received a number of emails from constituents, some expressing concern about the size of the development, all expressing anger about the lack of consultation with local residents. We know that the Andrews government does not hold consultation in high regard—that is somewhat of an understatement—and I am keen to ensure that the people of Keilor Downs are heard on this occasion. In raising this matter, I commend Cr Maria Kerr of Brimbank City Council for her advocacy for her community on this and many other issues. I wish we had more councillors just like her. Minister, the concerns of Keilor Downs residents must be aired. Will you join me and Cr Kerr at a meeting of locals so that they can have their say on this proposed development?
Western Metropolitan Region
Ms VAGHELA (Western Metropolitan) (12:39): (1493) My constituency question is directed to the Minister for Education, Minister for Mental Health, Minister for Disability, Ageing and Carers and Deputy Premier, the Honourable James Merlino. My question relates to the portfolio responsibilities of disability, ageing and carers. Every day more than 736 000 Victorians provide extraordinary support and care for those who need it the most. We celebrated National Carers Week from 10 to 16 October this year to recognise and celebrate Victoria’s carers. Carers support their family members or friends who need care due to chronic illness, mental illness, disability or old age. The coronavirus pandemic has also added to their work as carers. The Andrews Labor government is showing its thanks to the selfless carers through the supporting carers locally grants program. My question to the minister is: can the minister please provide me with an update on how the supporting carers locally grants program will benefit the carers of the Western Metropolitan Region? We are delivering $2.6 million to support carers to help them reconnect when it is safe to do so. I thank all the carers for the selfless unpaid support they are providing.
Southern Metropolitan Region
Mr HAYES (Southern Metropolitan) (12:40): (1494) My constituency question is to the Minister for Planning. Residents have reported to me a commitment that the Labor government gave prior to the 2018 state election to the people of Glen Eira for mandatory height limits. Can the minister please advise why there has been a turnaround on this commitment, with only discretionary height limits being discussed?
Western Victoria Region
Mrs McARTHUR (Western Victoria) (12:41): (1495) My question is for the Minister for Health and concerns the obligations on farmers and business owners in relation to the entry of contractors and workers onto their property. Specifically I refer to the powers currently being used by AusNet representatives under section 93 of the Electricity Industry Act 2000. Farmers on the route of the Western Victoria Transmission Network Project who have refused access to their property now face the use of these section 93 powers. Chief heath officer directions consider all farms as workplaces and potential transmission sites, so my question to the minister is: are landowners required to monitor forced access by contractors to record attendance and establish the vaccination status of these workers potentially in close contact with their own employees? Can they deny access to contractors of undetermined or non-vaccinated status? If they do not, are they liable to penalties under the directions?
Eastern Metropolitan Region
Mr BARTON (Eastern Metropolitan) (12:42): (1496) My constituency question today is for Minister Pearson acting as Minister for Government Services. I have been contacted by a number of my constituents who have faced difficulties with the new technological requirements of coming out of lockdown. They have found it a stressful experience attempting to sign up for the Medicare ID on the MyGov app and then linking it to their phone and then linking it to the Service Victoria app. Last year I was informed by my local neighbourhood house that many of their older participants were not coming in for their usual classes due to the stress associated with using a QR code. So my question is: given how much of our COVID normal relies on technology use, what is the government doing to ease the somewhat stressful experience for our senior citizens?
Southern Metropolitan Region
Ms CROZIER (Southern Metropolitan) (12:43): (1497) My constituency question is to the minister responsible for level crossing removals, Minister Allan in the other place, and it is in relation to concerns about graffiti on the Toorak Road sky rail that is just getting worse and worse. The question I ask is: who is responsible for cleaning that up and when will they conduct that clean-up that is needed on that sky rail? On a broader point as I make this point, I do note the graffiti around the city, around my electorate, in public places and on these particular infrastructure projects like the sky rail that I have mentioned. I would appreciate if the minister would follow up and get that graffiti removed.
Northern Victoria Region
Ms MAXWELL (Northern Victoria) (12:44): (1498) My question is to the Minister for Police regarding the budget commitment of $28.9 million to build Benalla’s new Victoria Police station. News in May this year that Benalla would get a new police station was met with both delight and relief by members of the force and the community. This station is scheduled to be completed in 2024, and as part of the design process and bulldozing of the current station I hope the government will also scope requirements for new court facilities. A number of serving police members and members of the public who I have spoken with are keen for an update on the build, so my question is: will the minister provide an update and confirm Benalla is still on track for a brand new police station as the government has promised?
Eastern Metropolitan Region
Dr BACH (Eastern Metropolitan) (12:45): (1499) My question is for the Minister for Local Government. Will he work with Banyule council to instigate a forensic deep dive into all council expenditure during the tenure of its former corrupt mayor? I have long said in this place that Mr Rick Garotti is as crooked as a paperclip. Some people have attacked me for doing so; however, I have been proven correct. I think the element of his testimony last week that most appalled my constituents in and around Ivanhoe was the uncovering of the manner in which he and Mr Somyurek and others have used and abused different ethnic groups. When journalists came forward to ask questions about Labor corruption, Mr Garotti and Mr Somyurek went ‘full racism’ on them. Members of ethnically diverse communities in my electorate are appalled. They are appalled by what they have learned from Mr Garotti himself. I now have further information from Mr Leane about grants programs, and I thank him for that. There is a need for a forensic deep dive.
Southern Metropolitan Region
Mr DAVIS (Southern Metropolitan—Leader of the Opposition) (12:47): (1500) My constituency question is for the Minister for Transport Infrastructure and for the Treasurer, I suppose—they are both interested in this matter—but particularly the transport infrastructure minister. Announcements have been made today about signing contracts with a consortium, the Spark consortium, for the North East Link at $11.1 billion. But of course the minister should come clean and publish all of the costs that relate to this project. They are much greater than $11.1 billion. That is the size of the contract, but we know from the reports tabled today that the Victorian Transport Fund—at page 33 of the Department of Treasury and Finance report—has paid out already $849 million to 30 June. That is almost $850 million additional, plus all of the costs surrounding the environment effects statement and all of the other matters. The minister should come clean and release a full list of all costs paid to date.
Sitting suspended 12.48 pm until 2.03 pm.
Bills
Terrorism (Community Protection) Amendment Bill 2021
Committee
Resumed.
Clause 1 further discussed (14:03)
Ms SYMES: Mrs McArthur, I have thought about the themes that you have been raising over the lunchbreak and got some information that I think might cover off some of the themes that you are exploring. I think we talked about terrorism threats, and I wanted to bring to your attention that a terrorism act is defined under Australian law as an act or threat intended to advance a political, ideological or religious cause. It is done by coercing or intimidating an Australian or foreign government or the public, and the action must cause serious harm to people or property, create a risk to the health and safety of the public or seriously disrupt trade, critical infrastructure or electronic systems. So just to bring the emphasis to the seriousness of the actions and the result of those actions, they must cause serious harm and serious risk and be seriously disruptive.
We talked about the types of behaviours that would amount to radicalisation. The best way to probably take the house through that would be to discuss the tools that are used to assess the risk of behaviour of terrorism or violent extremism. There are several structured professional judgement tools in existence, including the violent extremist risk assessment version 2R, known as VERA 2R, and RADAR, which can be used to support risk assessments in relation to violent extremism and terrorism. Radicalisation to violent extremism is complex, and to date all research, both domestically and internationally, agrees that there is no single pathway that can predict or is always the same in each case. While the tools are evidence based and verified, there are no tools that can definitively define or predict such activity or likelihood of such activity. As we have discussed, it is difficult for me and would be inappropriate for me to define or rule in or out what activities may or may not fall within the remit of the legislation or amount to concerns around terrorism or behaviour, but there is significant research in detail behind these considerations.
In addition to the tools that I have mentioned, law enforcement agencies also use a range of other tools, known as the extremism risk guidelines, ERG22+; the significance quest assessment test, SQAT; the Islamic radicalisation, IR46; the regional resiliency assessment program, RRAP; and the vulnerability assessment framework, VAF. For example, the VERA 2R, which is most well known, I guess, here in Victoria, was developed and informed by over 200 sources of references drawn from terrorism and violent extremism research and risk-assessment methodologies. It was revised in 2011, 2016 and 2018, because it is continually updated as a result of intelligence and emerging information in trends in violent extremism. They look at feedback from terrorism experts, national security analysts, law enforcement analysts and professionals using the VERA tool with convicted terrorists in high-security prison settings. The VERA 2R assists an analyst or a psychologist to evaluate an individual at any given point in time. This is because we are dealing with dynamic indicators, where individuals will change over time in either their commitment, intention, social contact or networking.
Risk pathways of violent extremist individuals can be tracked through time to determine increasing or decreasing risk patterns and establish a trajectory of risk and a trajectory of each indicator displayed. Repeated assessment can be undertaken if the individual’s environment changes, if there are observed behavioural changes or to track change during a disengagement program. The VERA 2R has a comprehensive set of risk indicators, so it is difficult for me to go into the specific details of this complex tool. I am not an expert in the analysis methods, but I can assure you, Mrs McArthur, that there are people who, as I have said, are very good and unfortunately very experienced in having to apply these risk assessments to individuals to protect Australia and Victoria.
I think one of your questions before the break also went to concerns about what happens if someone refuses to engage in the voluntary case management order. Did you ask about that?
Mrs McARTHUR: I do not think so. But anyway, go on.
Ms SYMES: Would you like an answer to that?
Mrs McARTHUR: Press on.
Ms SYMES: If an individual does not consent to participating in the voluntary scheme, the referrer, Victoria Police, would need to be advised, and this would allow Victoria Police to assess if the refusal to consent is indicative of an escalation requiring any of the following: it could consider attempting to re-engage with the purpose of obtaining consent; Victoria Police could further intervene with the community integration support program, which is CISP, or with the network for intervention and tailored engagement program; Victoria Police could continue to monitor as per national security persons-of-interest protocols; or it could escalate it to the additional order that is provided for in this bill, the support and engagement order.
Mrs McARTHUR: Thank you, Attorney, for that very comprehensive review of my question. I hope I do not inadvertently repeat something. Please excuse me if I do. I might have missed some of the detail.
Ms PATTEN: For all our sakes.
Mrs McARTHUR: We are all in that boat, Ms Patten, so thank you. I will just go back to a question from before the break, Attorney, if possible. New section 22AG(2)(b) provides that:
(2) A person may be radicalising towards violent extremism … even though they have not—
…
(b) done an act in preparation for, or in the planning of, a terrorist act …
Could the Attorney please provide some specific examples that might demonstrate that a person is radicalising towards violent extremism that do not actually include preparation or planning, which you said you might be able to before the break?
Ms SYMES: Good question, and obviously it is a good opportunity to outline to the house the very reason that this bill has been brought to the chamber. I have a hypothetical example based on a real-life example. Obviously because of the small numbers it is really important to make sure that we give a very strong flavour of what we are dealing with without going into exactly what has happened in real life, but this is taken from a real-life example with a few alterations. It is a case summary of a 16-year-old male.
As a young child, his family immigrated to Australia from Iraq after his older brother was killed during a bombing episode that involved US forces. Recently he has been feeling depressed and isolated and has begun to spend increasing time online talking to older people on social media. He has begun to form connections with ISIS sympathisers and is showing signs of radicalisation. At school he has been subjected to bullying and racism and as a result feels disconnected and has lost interest in school. His experiences of trauma have contributed to his grievances and increasing radicalisation. He has struggled to cope through these experiences, and his mental health has deteriorated. This is an individual that could be brought to the attention of the department and the multi-agency panel and therefore considered for a program under the scheme.
A case management response to a young person as described could involve targeted service responses, such as working with his school to provide further support to reduce bullying, and restorative conversations between students to foster inclusion; ensuring that the young person and their family are referred to mental health services to provide appropriate treatment; working closely with the family in the family home to develop protective relationships; and the setting of appropriate boundaries through multisystemic therapy. It could also include things like cognitive behaviour therapy; parental skills training and structural family therapy, which is intensive, clinical and evidence-based; providing the family with some education about safe internet practices for young people and helping them install them on the home computers; and connecting the young person with a religious leader for mentoring and learning about the Koran and its teachings, for example. Options to directly address radicalisation would be to connect him with a specialist psychologist to address his needs and help him find new outlets for responding to the concerns that he is harbouring. This is a coordinated approach that is designed to support disrupting a young person’s risk of becoming radicalised and promoting prosocial identity.
Mrs McARTHUR: Thank you very much, Attorney, for that example. So, Attorney, under new section 22AG could interacting with social media posts that are considered to be supportive of actions that create a serious risk to public health be deemed radicalisation towards violent extremism?
Ms SYMES: Mrs McArthur, as I said, I am not going to provide my opinion or confine the definitions in the bill. It would be a case-by-case situation. As I identified with the example of the young man, there are a range of factors that people would consider in relation to a person’s risk of becoming radicalised.
Mrs McARTHUR: Thank you, Attorney. Earlier you rightly corrected my question by responding that the government does not apply to the court for a support and engagement order. Could I just correctly re-ask the question? In the COVID-19 Omnibus (Emergency Measures) and Other Acts Amendment Bill 2020, passed last year, the definition of activities that involve an immediate risk to the health or safety of a person was expanded to include breaches of public health directions. The government clearly believes that breaches of these directions create a serious risk to the health of a section of the public. So, Attorney, could the court grant support and engagement orders for those who are in the process of coming to support the encouragement of Victorians flouting these directions?
Ms SYMES: Mrs McArthur, it is not something that I can rule out, but in and of itself attending a protest and breaching a public health order is unlikely to, on its own, amount to behaviour that is considered at risk of violent extremism or radicalisation. But that is not to say that a person engaging in those activities may not have a range of other concerning behaviours that would amount to something that could be considered relevant and appropriate for that individual to be connected to either the involuntary scheme or the order scheme, on a case-by-case basis. If what you are trying to ask is: would a protester who breaches a public order automatically qualify for the program? No.
Mrs McARTHUR: Thank you, Attorney. So, with respect, you noted earlier about how you do not wish to define or confine the definitions of terms in the bill. In the Office of the Chief Parliamentary Counsel’s handbook, TheLegislative Process, it states that a purpose of the committee stage is to give members of the house the opportunity, and I quote, ‘to seek an explanation from the sponsor of the bill as to the effect of particular clauses’. So, Attorney, I am not asking for specific, confined, exhaustive definitions. I am just seeking an explanation as to the effect of new section 22AG and whether it applies to the circumstances to which I have been referring. So if you do not mind, Attorney, could you please clarify whether you are advised that the process of coming to support the encouragement of flouting of public health directions or perhaps pandemic orders, should a future bill pass, might constitute radicalising towards violent extremism?
Ms SYMES: Mrs McArthur, I do believe I have answered this question, and it is why I took the chamber to examples of the risk assessment tools that law enforcement agencies, police and federal police in particular, look to—to identify concerning behaviour that may be on a trajectory or may come together with a range of other behaviours in order to form a view that there is a concerning pattern of behaviour that places this person of interest to officials. As I have identified through the case example, there can be a low threshold to ensure that people can be diverted to appropriate support. But again, this is about terrorism acts; this is about radicalisation. The behaviours that you have described in and of themselves would need to be assessed through this prism and would need to involve a conclusion that that person was heading down the wrong path. Merely attending a rally or a protest, regardless of the cause, might attract some attention, but in itself it would need to be reviewed in the whole range of behaviours that that person may be involved in. It could be a relevant factor. It is not for me to exclude from the legislation considerations of any activities. It may be relevant.
Mrs McARTHUR: Thank you, Attorney. Four years ago members of the Antifa movement approached Sky News commentator and Herald Sun columnist Andrew Bolt on Lygon Street in Carlton and violently attacked him. Pursuant to new section 22AG(1)(a), this action was clearly committed in the advancement of a political or ideological cause as it was not a random attack on a stranger. So, Attorney, could support for or celebration of the Antifa movement and their violence constitute radicalising towards violent extremism under the definition in new section 22AG?
Ms SYMES: Mrs McArthur, I am not going to refer to specific cases and the charging practices of police. Obviously violence involving particularly assault could attract a range of charges that police may seek to apply. Again, I have gone through the behaviours that could be considered under this bill to be indicators of terrorism, leading to terrorism activities or identification of people at risk of radicalisation. No behaviours are ruled out, but it is all to be considered in a case-by-case situation by the relevant law enforcement authorities. It is not for me to say what could be excised from this legislation. Identifying a range of behaviours that would identify someone as appropriate for early intervention predominantly is the whole purpose of this bill—to ensure that people are given the best opportunity, the best support, to ensure that they do not go on to a life of offending, particularly in this instance, specifically related to acts of terrorism.
Mrs McARTHUR: Thank you, Attorney. Earlier in one of your answers you referred to extreme right-wing organisations, support for which might constitute radicalisation towards violent extremism. Attorney, could you please provide some examples, not an exhaustive list but some examples, of extreme right-wing organisations, support for which might meet the definition in new section 22AG?
Ms SYMES: I thank Mrs McArthur for her question, although I do not believe it is my role to detail specific groups and specific organisations. Obviously this is information that Victoria Police are well aware of. This is information that they continually monitor. They continually monitor people that are connected to these groups to ensure that the safety of Victorians is protected.
Mrs McARTHUR: Thank you, Attorney. So you cannot provide examples of extreme right-wing organisations. I take it therefore that you would be including extreme left-wing organisations, but will you be unable to provide examples of those too?
Ms SYMES: Mrs McArthur, I think my answer applies to all organisations that people may seek to be involved in. If membership of those groups or participation in forums run by particular groups results in concerning behaviour that amounts to radicalisation or creating a risk of resulting in a terrorism act towards the state of Victoria, all of this intelligence is relevant to law enforcement agencies. I am not going to detail my knowledge of different groups that are under the watch of Victoria Police. There have been media reports of certain groups that have caused them concern. That is a matter for Victoria Police.
Mrs McARTHUR: Thank you, Attorney. Earlier you noted that you did not want to confine the breadth of the definition of ‘radicalising towards violent extremism’ in new section 22AG. How broad is this definition, then, and how broad are these powers under the bill?
Ms SYMES: Mrs McArthur, I think that was why I took the house through the violent extremist risk assessment version 2R, which supports risk assessments in relation to violent extremism and terrorism. Radicalisation to violent extremism is extremely complex. There is a lot of research both internationally and in our state which shows that there is no single identifier that rules that somebody is at a definitive risk of becoming somebody that engages in behaviour that could amount to terrorism. I think that that is a good way of explaining to you why it would be inappropriate for me to seek to define radicalisation when it is something that even those that have been involved in this area of policy continually update and evolve. This is a piece of legislation that we need to be in place for several years. It would be inappropriate to not allow it to be flexible and respond to current risks and future risks.
Mrs McARTHUR: Thank you, Attorney, for that answer. That is a very good segue into my next question. Last year one of my constituents, Zoe Buhler, was arrested for being accused of inciting freedom-day protests against the Andrews government’s COVID restrictions. If this legislation had been in force last year, could Mrs Buhler have been subject to a support and engagement order for encouraging people to flout COVID rules, which the government deemed would cause a risk to public health?
Ms SYMES: I will not be commenting on individual cases.
Dr BACH: Attorney, at this point I might ask you just a question or two, if that is all right, about your amendments. On this side of the house we do understand the need for a measure such as this. I am looking at new clause 30B(1)(4):
The Juries Commissioner, in the Commissioner’s discretion, may exempt a person or class of persons from being summoned …
and so forth. Our view is—as is yours, I dare say—that given that we are in the public health position that we are, despite the quite incredible nature of the exclusion of a certain class of person from engagement on a jury, a mechanism such as this is necessary. What I would query, however, Attorney, is how you came to the position that you did—how the government came to the position that it did—regarding the repeal of these powers. New clause 30D provides that these powers will be repealed on 26 October in 2022. I wonder if I could seek some more information from you about how the government determined that that time period was the correct time period.
Ms SYMES: Thank you, Dr Bach, for your question. It is a good question, and we did think about the timing. I considered whether it should be an enduring right for the jury commissioner. I guess when I was originally looking at this I was a little surprised they did not already have the discretion, considering there are a range of reasons that people are ineligible to sit on juries. But given it is a new change, we want to make sure that we are giving the courts the time to see how it goes, and the specific timing lines up with the sunsetting of a range of other initiatives that were introduced in the Parliament to help the courts deal with the pressures from the pandemic. It just lines up with the end of some of those other measures. The court security legislation is a good example.
Dr BACH: I understand. Is there a public health imperative? I suppose that is the question that I am getting at, noting your initial comments. And I thank you for your candour regarding your views on these sorts of powers. Is it the government’s position that there is likely to be a public health imperative, as we accept there is right now, for a measure such as this all the way through until October 2022? And you may have already answered this by implying as much in reference to a range of other government measures.
Ms SYMES: No, which is why we have done it this way rather than a blanket exclusion. That is why there is discretion for the juries commissioner. It was open to us to consider a blanket exclusion, but we decided that it would be more appropriate, rather than a blunt instrument from the government, to instil the power in the juries commissioner so that he can have conversations with the courts and react to the epidemiology at the time, the current health risks. We hope that these are temporary and that no-one would be excluded based on the grounds of public health once we are through the pandemic. The intention of this is to enable juries to get back. By the very nature of being on a jury you are obliged to be in close contact with people and have intensive conversations with them, so it is about protecting the individuals that are doing that important work for the justice system by being on the jury.
The DEPUTY PRESIDENT: If there are no further questions on clause 1, I ask the minister to move her amendment 1, which is a test for her remaining amendments.
Ms SYMES: I would like to formally move my amendment:
1. Clause 1, page 2, after line 17 insert—
“(ba) to amend the Juries Act 2000 to provide for the Juries Commissioner to exempt a person or a class of persons from selection to be summoned for jury service based on health, safety or welfare concerns; and”.
As we know, this is in relation to the Juries Act 2000, and I thank the house for allowing me to bring them as amendments out of scope to the terrorism bill. I would like to put on record that the courts already have a range of public health measures in place to help safeguard jurors, court users and the staff and that these are amendments about giving additional discretion to address public health concerns related to COVID-19 in the context of jury trials. Currently the juries commissioner cannot prevent persons who pose a health and safety or welfare risk from being summoned for jury service, and this may present, as I have discussed, risks to other jurors or potential jurors and indeed court staff and court users.
The amendments will allow the juries commissioner the discretion to exempt a person or class of persons from being summoned for jury service if there is a good cause to do so based on health, safety or welfare considerations to the person, that class of persons or the community. The power will be discretionary, and the juries commissioner will need to determine whether an exemption is warranted based on the particular facts and circumstances. For example, the commissioner may decide that persons who are not fully vaccinated against COVID-19 may pose a particular health risk based on relevant advice at the time. The juries commissioner may consult with the chief health officer to enable their decision-making to be based on current relevant health advice.
These amendments are based on similar provisions in New South Wales which have operated effectively since March 2020. There is a sunset date, as I have gone through with Dr Bach, to allow the operation of the amendments to be considered at that time about whether there is any further need for them to be ongoing. The juries commissioner, as I said, will be taking on this role. He has a statutory role created by section 60 of the Juries Act and is responsible for providing the operation and administration of Victoria’s system of trial by jury and so is appropriately placed to take on this additional responsibility and to ensure that courts are best assisted to get on with, as we know and was discussed in this place, a backlog, particularly in relation to matters that require the attendance of juries.
So I do commend the amendments to the house, and again I thank the house for enabling me to use the terrorism bill as an appropriate vessel to ensure that we can, hopefully, allow this amendment to be enacted as soon as possible.
Dr BACH: Can I flag at this point, Deputy President, notwithstanding the fact that I understand the initial amendment is set to be a test for the remaining amendments, that whilst the opposition will support Ms Symes’s amendment, when it comes to amendment 4 I will move an amendment to her amendment, and could I perhaps ask at this point that my amendment to her amendment be circulated.
The DEPUTY PRESIDENT: Do you want to speak to that now?
Dr BACH: Yes, please, if it is deemed appropriate by you. I take what the Attorney says about the decision-making regarding the time period. Nonetheless we on this side of the house have a different view. We think that it is appropriate at this time to introduce this quite extraordinary power to exclude a certain class of person from engagement on juries. We have come to that position because, as the Attorney said—and we are in full agreement with the Attorney—we are desperate to get jury trials back up and running again. There is a huge backlog. We want to get things back up and running again, and we do understand right now, despite our very high vaccination rates, there would be a block upon that, we believe for a short period of time—after having sought what advice we can today—should there be persons sitting on juries who are not vaccinated.
Yet we do not accept that that should be the case or that that power should remain all the way through until the end of October next year, and so, as members of the house will see when my amendment is circulated, we are seeking to bring that date forward to the end of February next year. This is a sensible path forward. It is a prudent path forward. It would enable jury trials to recommence, but it would then mean that at a sensible time, when on current predictions over 90 per cent of Victorians are fully vaccinated, this extraordinary power is removed. Of course it is a key tenet of the rule of law—perhaps the key tenet of the rule of law—that an accused person is able to be judged by a jury of his or her peers, and so the exclusion of a class of persons is a very serious matter. We concur that it is necessary right now. We believe, however, that that should only be the case for a shorter time period. Hence we will support this amendment, and yet when we come to amendment 4, I will move that amendment to the amendment.
Ms PATTEN: I do have a query about this, because I have only just glanced at it. Would this absolutely exclude anyone who was not vaccinated? It is a ‘may be excluded’. Is that correct?
Ms SYMES: Yes. I thank Dr Bach for his amendment to my amendment. I think probably just the other point that I would make about your question, Ms Patten, is that it is effectively a deferral, not an exclusion, as well. So if it is determined by the jury commissioner that you are not vaccinated and therefore should not participate at this time, it does not get you out of jury duty; it just prolongs it for a little while.
I have got some sympathy for an earlier time frame because, you know, we would love for it not to be required at an earlier date, but the complication that your amendment would create, Dr Bach, for the courts is that there is a lengthy lead time for the summonsing of jurors. So your time frame would create difficulties over possibly December and January, which would be difficult for the courts and the jury commissioner to manage. I do not think it would be particularly workable in the form that you have put it.
As I have said, there was nothing particularly special about the October dates, but they were dates that had previously been agreed to by this chamber for dates for the sunset of other COVID-response changes for the courts, such as the security measures in the courts. They all sunset in October, so we have lined it up for ease and convenience, I suppose, but also to make sure that all of the changes will come into the courts at the same time so it makes their life a little bit easier. That was predominantly around the October use, but picking up Ms Patten’s view, this is a discretion for the juries commissioner. The juries commissioner will consult with the courts to see how they are going. This is about the courts wanting to get on with their job. This is about making sure that they can provide a safe workplace and a safe environment, particularly for jurors, so there will be ongoing conversations about when this discretion is exercised and when it is not. It does not mean that it is in force until October, it just can be enforced until October under our proposed amendments.
Amendment agreed to; amended clause agreed to.
Clause 2 (14:41)
Ms SYMES: I move:
2. Clause 2, line 22, after “Part 4,” insert “Part 4A”.
Amendment agreed to; amended clause agreed to; clauses 3 to 5 agreed to.
Clause 6 (14:42)
Ms PATTEN: My question goes to new section 22AG(3), and this is the concern I raised in the second reading:
A behaviour engaged in with any of the following intentions may, in certain circumstances, indicate that the person engaging in that behaviour is radicalising towards violent extremism …
All of the experts are saying that that is incredibly difficult to assume, but I just wondered if you could give me some examples of what you mean by ‘certain circumstances’ or if you could clarify what ‘certain circumstances’ means in that section, because ‘certain circumstances’ is not defined anywhere in the bill.
Ms SYMES: I think what would help with answering this question, Ms Patten, is how the court will determine whether someone is radicalising towards violent extremism.
Ms PATTEN: This is more about laying out the reasons you would ask someone to go into a voluntary program or be volunteered to a program. It is:
A behaviour engaged in with any of the following intentions may, in certain circumstances, indicate …
So I guess I am still trying to clarify what those certain circumstances would be. The example that you were giving to Mrs McArthur earlier was of a young man who is starting to go onto websites that are supporting ISIS. I guess I am asking for greater clarification on it.
Ms SYMES: In this section we talk about ‘any of the following intentions may, in certain circumstances’, so they would not always. The example that I gave of the young man was useful to explain the intention of the legislation. It is a really low threshold. We are wanting to engage with people who have not committed any crime, and that is why for those really low level—just concerning, bubbling along—behaviours it is voluntary. This is about picking up people and wrapping supports around them in a non-punitive matter, so that is why it has to be broad but not prescriptive. Because not in every circumstance is a kid that looks up how to build a bomb—it might be just an interest to understand—connected to any behaviour. You do not want to capture everything that could on its face appear alarming. It may not very much be alarming. You do not want to be putting all of those kids through the multi-agency advisory panel, or people through the MAP, to identify whether they should be appropriate for a voluntary scheme; it is just that they may be if there are enough other information and concerns around. This may pick up situations where parents go, ‘I’m really worried’, and they seek help. You might be able to refer your own young person to this scheme, or a teacher could, for example. So it is just designed to be broad. The threshold is low. It is why it is voluntary, because it is about making sure that we can help people, not necessarily confine people to a box that says they are going to be a terrorist. It is not about that. It is about ensuring people are provided with the support they need to have positive engagements with society.
Ms PATTEN: Thank you, Attorney, for that. It would appear from this that, if you were referred under this new section to take part in a voluntary program or to be assessed by the MAP, you could refuse. But it also appears in this new section that if you refuse that becomes a reason for a court order to be made to force you. I do not know whether this is possible, but are there examples of circumstances where a person refuses and that would be the end of it? Because it seems in looking at the legislation that that would not be the end of it. Once someone has been referred, then they are on that trajectory to do that program whether they volunteer or not.
Ms SYMES: Not necessarily, no. It could be a concerning factor, but I think if someone does not want to consent, they could be re-approached down the track. Police could continue to keep an eye on them. They could be a national security person of interest and be monitored even before an SEO application. There are lots of other ways, but for the low-level thresholds it would be about referring people to other services: so, ‘Look, we’ve got this program for you; we think it’d be really good’, and get the parents onside, get the school onside. It is about having an assessment of that person. They may not sign up to the scheme, but they might agree to engage in mental health treatment independent of being formally under the scheme. It would still be an entry point for people to seek help—not necessarily agreeing to sign up.
I guess we have not done this before. We want to see how it goes. It is world leading. This is about trying to grab people before they potentially head down somewhere where it is much harder down the track and we are waiting for them to do something that causes harm to themselves or someone else. So we hope that people will accept the recommendations.
The estimates are it will be under 30 people that are referred for consideration for this voluntary scheme, which is good in one way, so we do not anticipate there will be a lot of numbers. How will people feel when they are asked to agree to this? We do not know the answer to that yet either, but it will be designed in a way where we will be encouraging people to do it in a non-criminal sense. It is like, ‘You know, we think you could do with some help. Would you like some support?’. We want agreement. It is not designed to be a stick approach; it is a support approach—so yes and no. Again, it depends on the certain circumstances of where on the range the behaviour sits and probably the age of the person as to what is appropriate.
Ms PATTEN: This is probably just by way of comment. I think that low bar is why people are genuinely concerned as to how this may be used. Yes, your examples are fine, and that does sound fine, but the intrusion into people’s privacy through these orders, the amount of information that is being collected under this new section and that information being shared, asking people to provide details of when they travel, who they talk to and where they are residing, is a very low bar, and I think that that is actually the concern that we have with the bill.
Clause agreed to; clauses 7 to 22 agreed to.
Clause 23 (14:52)
The DEPUTY PRESIDENT: Dr Ratnam, I invite you to move your amendment 1, which is a test for your remaining amendment.
Dr RATNAM: I move:
1. Clause 23, line 14, omit “2028” and insert “2024”.
Just speaking to some of the context, and I spoke briefly in my second-reading contribution, these amendments simply bring forward by five years the next review of this legislation and the sunset clause so that the next review is due to commence in 2024 and the act sunsets in 2026. There are a number of reasons why a five-year review and sunset clause are appropriate. Previous reviews have not been open to broad community consultation, which has now been changed. It should not be another decade before the whole community can have their voices heard on issues so important to the cohesion and safety of the community.
The new provisions in the bill, while attempting to provide greater support for early intervention, could have serious implications not just for individuals but for whole sections of the community. The nature of the extremist threat is changing, and the context under which these laws were first proposed has changed significantly. At the same time, the discretionary powers provided to police and PSOs and governments, ostensibly to deal with this threat, expand almost every year. An earlier review will assist in understanding if these laws continue to be relevant in this changing context.
These laws offer significant powers to law enforcement that infringe human rights. More regular reviews and the sunsetting of these powers are much more appropriate than once in a decade. We have already become very close to assuming a new normal where powers such as these are uncontroversial. That should never be the case.
Ms SYMES: I thank Dr Ratnam for her explanation of her amendments. I will start at the outset. When I was first being consulted on this bill by the department as the new Attorney—‘You’ve got this coming up’—I asked the same question: ‘Why is it 10?’, because I had similar concerns to what you have identified. However, I have been convinced that the sunset clause of 10 years is appropriate, bearing in mind that the review starts at seven years. It balances the enduring reality of the terrorist threat in Victoria with the need for ongoing scrutiny to ensure significant powers in the act remain necessary. In striking the balance the government has carefully considered the recommendations and findings of the Review of the Terrorism (Community Protection) Act 2003: Stage Two Report. That report was informed by input from law enforcement, national security agencies, legal stakeholders, community representatives and an expert advisory group comprising persons with police, judicial and academic backgrounds. The sunset provisions are also supported by the Honourable David Harper, former AFP deputy commissioner Leanne Close and academic expert Lydia Khalil. In determining the new sunset and review periods in the bill, the government considered the review’s finding that sunset and review clauses are important safeguards that enjoy strong stakeholder support and are necessary to ensure scrutiny and protect against normalisation of the extraordinary powers in the act. The recommended 10-year sunset and seven-year review periods are balanced and appropriate because they recognise that the threat of terrorism is enduring, expanding and diversifying, unfortunately. The act’s powers are likely to be required for the foreseeable future.
Australia’s terrorism threat level remains at probable, meaning that credible intelligence assessed by our security agencies indicates that individuals or groups have the intent and capability to conduct terrorist attacks in Australia. The powers in the act are used infrequently, requiring a sufficient period to gather necessary operational evidence for reviews to be comprehensive and meaningful. The administrative burden imposed by statutory reviews on agencies and stakeholders and the review also recommended mechanisms to bolster the continuous monitoring of the act’s powers so that issues can be identified ongoing and not just wait for a review at the seven-year mark.
The recommendations that were to bolster that oversight and that ongoing monitoring include a recommendation for regular scenario exercises to test how the provisions of the act operate in practice—coming to that point where fortunately they are not used a lot, but we want to make sure that police are well versed in the act and the requirements of it, particularly the oversight and safeguard provisions. So that is why there was a recommendation to have the scenario exercises, particularly in the application of powers to children and other vulnerable persons. The Department of Justice and Community Safety will monitor the outcomes of the scenario exercises relating to children particularly, along with any changes in the terrorist threat environment, policy and practical experience in other jurisdictions, and will continue to consult with key stakeholders.
I think the amendments that you are putting forward, Dr Ratnam, will reduce the review period to three years. That is when effectively the formal review would have to start. As I have said, I questioned this is well. Your changes are certainly well meaning, but we cannot support them because basing the review and sunset processes so closely will not enable us to get a true picture of how the act is working and whether we should make changes in the future or indeed reduce the scope of the powers that the terrorism act covers.
Ms PATTEN: I will be supporting Dr Ratnam’s amendments and I think for the very reason that the Attorney put forward in remarking on clause 22—that is, that we have not tried this before. This is completely unknown. We are talking about very low burdens before intervention, and we are talking about quite significant interventions in people’s privacy. I think a review at the five-year mark actually makes a lot of sense, given the unique and possibly innovative nature of the bill itself.
Ms SYMES: Just to clarify, Ms Patten, on the specifics you have raised: the amendments that Dr Ratnam and I are talking about are to the Terrorism (Community Protection) Act, so the existing act, not the amendments that are brought in to introduce the voluntary scheme and the SOEs. They will be subject to an administrative review within three years anyway. The conversation we are having is about the rationale for the existence of this act, which will sunset if we do not pass this today. Unfortunately the advice is that we still need these laws, and so therefore this bill seeks to extend that act for another 10 years. Introducing the new mechanisms is sort of a separate thing. If we were not doing that, we would still be in a position where we would have to extend based on the advice this terrorism act go for another 10 years, and the debate is whether the review should be after three or after seven.
Ms PATTEN: Thank you for that clarification, Attorney, but I would still suggest that the terrorism legislation, not only this section but all sections of the act, is pretty heavy and also has got very low burdens of proof. I take your point that it is not relevant to this section, but it could be to, say, the rest of the act, so on those grounds I will still be supporting the amendment.
Committee divided on amendment:
| Ayes, 4 | ||
| Cumming, Dr | Patten, Ms | Ratnam, Dr |
| Hayes, Mr | ||
| Noes, 29 | ||
| Atkinson, Mr | Grimley, Mr | Shing, Ms |
| Bach, Dr | Kieu, Dr | Stitt, Ms |
| Barton, Mr | Leane, Mr | Symes, Ms |
| Bath, Ms | Lovell, Ms | Tarlamis, Mr |
| Bourman, Mr | Maxwell, Ms | Taylor, Ms |
| Crozier, Ms | McArthur, Mrs | Terpstra, Ms |
| Davis, Mr | Meddick, Mr | Tierney, Ms |
| Elasmar, Mr | Melhem, Mr | Vaghela, Ms |
| Erdogan, Mr | Ondarchie, Mr | Watt, Ms |
| Finn, Mr | Pulford, Ms | |
Amendment negatived.
Clause agreed to; clauses 24 to 30 agreed to.
New part heading and new clauses (15:07)
Ms SYMES: I move:
3. Page 146, after line 9 insert the following new Part heading—
“Part 4A—Amendment of the Juries Act 2000”.
4. Insert the following New Clauses to follow clause 30 and the Part heading proposed by amendment 3—
‘30A Questionnaire
In section 20(1) of the Juries Act 2000, after “period” insert “or whether the person may be exempted under section 27(4) from being summoned for jury service”.
30B Summons
(1) After section 27(3) of the Juries Act 2000 insert—
“(4) The Juries Commissioner, in the Commissioner’s discretion, may exempt a person or class of persons from being summoned if, in the Commissioner’s opinion, there is good cause to do so based on health, safety or welfare concerns relating to the person, that class of persons or the community.
(5) In deciding whether there is good cause to make an exemption under subsection (4), the Juries Commissioner—
(a) may consult with the Chief Health Officer within the meaning of section 3(1) of the Public Health and Wellbeing Act 2008; and
(b) may make any enquiries and request any documents or other information the Commissioner considers necessary to determine whether a person or class of persons should be exempt from being summoned for good cause based on health, safety or welfare concerns relating to the person, that class of persons or the community.
(6) If the Juries Commissioner exempts a person or a class of persons under subsection (4), the Commissioner must notify the person or any person who belongs to that class of persons about the exemption.
(7) The Juries Commissioner—
(a) is not required to issue a summons to a person or class of persons exempted under subsection (4); and
(b) may recall and cancel any summons issued to a person who is exempted under subsection (4) after the issue of a summons to that person, whether the summons was issued before, on or after the commencement of this subsection and regardless of when the decision to exempt is made.
(8) An exemption under subsection (4) may be made at any time before a person becomes a member of a panel.
(9) For the avoidance of doubt, a person cannot waive an exemption made under subsection (4).”.
30C Obligation to answer questions or produce document
In section 68(2) of the Juries Act 2000, after “jury service” insert “, whether the person may be exempted under section 27(4) from being summoned for jury service or whether a summons should be recalled or cancelled under section 27(7)(b)”.
30D New section 101 inserted
After section 100 of the Juries Act 2000 insert—
“101 Repeal of powers to exempt from being summoned
(1) On 26 October 2022—
(a) in section 20(1), omit “or whether the person may be exempted under section 27(4) from being summoned for jury service”;
(b) in section 27, subsections (4) to (9) are repealed;
(c) in section 68(2), omit “, whether the person may be exempted under section 27(4) from being summoned for jury service or whether a summons should be recalled or cancelled under section 27(7)(b)”.
(2) This section is repealed on 27 October 2022.”.’.
Dr BACH: I move:
1. In proposed clause 30D, in proposed section 101(1) of the Juries Act 2000, omit “26 October” and insert “28 February”.
2. In proposed clause 30D, in proposed section 101(2) of the Juries Act 2000, omit “27 October” and insert “1 March”.
Members of the house have these amendments. I spoke to them briefly in the committee stage. In short, it is an incredible thing to allow powers to a person, the juries commissioner, albeit an appropriate person in this case of course, to exclude certain classes of people from engagement on juries. As I said in the committee stage, it is a key tenet of the rule of law—arguably the key tenet of the rule of law—that those of us who are accused have the ability to be tried by a jury of our peers. We do accept that at present there is a public health need to exclude some persons—people who are not fully vaccinated—from engagement on juries. The Attorney was good enough in the committee stage to articulate for the benefit of the house that really the purpose of this provision is to enable the juries commissioner to do just that. We do not believe, however, that this power should be actionable for any longer than it absolutely has to be. At present it will not be repealed, under the Attorney’s amendment, until 26 October next year. We believe that a constructive and a prudent and a safe way forward would be to alter that date through until 28 February next year. That is the purpose of the amendments that I move to the Attorney’s amendment.
Ms SYMES: The government will not be supporting Dr Bach’s amendment to our amending clauses. It is not extraordinary to exclude people from jury service. There are a range of reasons that people cannot attend juries. I cannot be a juror. There are a lot of options for people to be excluded if they are primary carers, run small businesses or are self-employed, so I would not describe this as extraordinary. However, as I have explained in the debate, this is predominantly around ensuring that jury trials can get back to operation as quickly as possible, which is why it is an amendment to this bill. We are literally hitching onto the back of a bill that is in the Parliament so that this can become available to the jury commissioner and the courts as soon as possible so that they can recommence their important work.
It is important to note that it is a discretion for the juries commissioner, so even though the power would be enabled by this provision until October—it would sunset in October—it is a discretion. He does not have to use it until then. The date of October was chosen to align with sunsetting of other COVID measures that have been put in place to ensure that the courts can operate in a COVID-safe environment and continue to administer justice.
The other issue I have with Dr Bach’s amendment is that the empanelment and the selection of jurors to the panel involves a lead time. So a sunset clause of February or March that Dr Bach is proposing could in fact cause some problems for the courts, being so soon, and October is a more appropriate length of time to make sure that we can hopefully get beyond the health concerns that we are currently under. So I would ask members to vote against Dr Bach’s amendment and to facilitate this provision as quickly as possible so that juries, particularly in the County Court, can get back to work.
Mr DAVIS: I thank the Leader of the Government, the Attorney-General, for her comments and note Dr Bach’s amendment is a carefully thought through one. In the circumstances that we have dealt with this today the time lines have been very truncated, and I thank the clerks in particular and the parliamentary counsel. But we are troubled about limitations on juries and we are troubled that some may not be able to attend juries under these particular powers. These are ancient protections, ancient rights, that are actually being tampered with here. We understand that there has been a pandemic, and we are quite respectful of the need to actually have a period here, but this does contemplate a long period into October next year. For more than a year we will be in this position. There is no reason why we cannot do this to the end of February, and if at that point it is clear that the COVID situation is still such, a further extension could be provided at that point. It is not absolutely necessary to push this to October at this point. We see it as that every step should be made to bring things back to normal and to ensure that rights are not curtailed any longer than they need to be.
Mr BOURMAN: I will not be supporting the amendments. I have not really had a chance to digest them.
A member interjected.
Mr BOURMAN: Yes, I understand. You mentioned that, and it is not a criticism. I am also not supporting the government’s amendments, so do not feel too special about it. Without giving it consideration, I think it could be a mistake for me.
Ms PATTEN: I actually thank Dr Bach for speaking to me about these amendments earlier, and I appreciate the lack of time you had with them. But I have actually been satisfied by the Attorney’s response to this—that this is not a compulsory exclusion and that this may be used by the commissioner if the commissioner thinks that that is necessary. So I am satisfied with that, and I would hope in a number of months no-one would consider that a necessary reason for exclusion.
Mr DAVIS: I think it is also important to note that the use of rapid testing should be expanded in our courts as a mechanism to ensure that as many as possible can participate in these trials. Again the government does not appear to have maximised the use of such opportunities, and that also concerns us.
Ms SYMES: At the risk of dragging this on, there are just a few points that I want to clarify. This is a deferral, not an exclusion. There will be the opportunity for the commissioner to consider people’s specific situations. For example, people with medical exemptions will not necessarily be excluded from participating in the jury. It has also been enacted in New South Wales, and I do not believe they even have a sunset, but I could be wrong. I will double-check, but I do not think they do. I think it is permanent at this point in time. I would also say that the issue with the timing proposed by the amendment is that there are only two sitting weeks next year before probably that date, probably around about that, which would again put us in this situation where I am asking you today to indulge me on getting something through that has not gone through the normal processes, and I would prefer to avoid that as much as possible.
Mr DAVIS: Can I just, at the risk of extending this, make the point that that is precisely the issue here. If we had seen this much earlier, people may have had a different view. With respect to New South Wales, I think the trust in the New South Wales government is much greater than the trust in this government in Victoria.
Committee divided on Dr Bach’s amendments:
| Ayes, 13 | ||
| Atkinson, Mr | Davis, Mr | Lovell, Ms |
| Bach, Dr | Finn, Mr | Maxwell, Ms |
| Bath, Ms | Grimley, Mr | McArthur, Mrs |
| Crozier, Ms | Hayes, Mr | Ondarchie, Mr |
| Cumming, Dr | ||
| Noes, 20 | ||
| Barton, Mr | Melhem, Mr | Tarlamis, Mr |
| Bourman, Mr | Patten, Ms | Taylor, Ms |
| Elasmar, Mr | Pulford, Ms | Terpstra, Ms |
| Erdogan, Mr | Ratnam, Dr | Tierney, Ms |
| Kieu, Dr | Shing, Ms | Vaghela, Ms |
| Leane, Mr | Stitt, Ms | Watt, Ms |
| Meddick, Mr | Symes, Ms | |
Amendments negatived.
Dr BACH: I move:
That progress be reported and the committee have leave to sit again once the Scrutiny of Acts and Regulations Committee have considered and reported, by no later than 16 November 2021, on the:
(1) amendments proposed by Ms Symes to the Terrorism (Community Protection) Amendment Bill 2021; and
(2) the amendments proposed by Dr Bach to Ms Symes’s amendment 4;
and the compatibility with the Charter of Human Rights and Responsibilities Act 2006, in particular the restrictions on jury membership.
We have had a lengthy debate and there have been a series of amendments, so I will not detain the house unnecessarily. What we had sought to do with our amendments was to lessen the time period that the changes that the Attorney had outlined would be operational, as we believe that there are significant implications to excluding classes of persons from engagement in juries. What this motion would do, if successful, is of course allow some further scrutiny. The Attorney has acknowledged, and again I thank her for her candour, that there has not been a normal process for these changes. We have no desire to be anything but entirely constructive on the bill as it comes before the house and with these amendments as well.
There are particular issues of course with jury membership. I would like members of the house to please note that we have written into this motion the fact that the Scrutiny of Acts and Regulations Committee must report by no later than 16 November to allow us to consider this matter again when we are next back. Our process today and the exact wording of this motion have been carefully considered to cause the least possible disruption, because we are very keen, as we have said on a number of occasions, to ensure that jury trials recommence as quickly as possible. I do not need to recapitulate the points that Mr Davis has made today and that Mr O’Donohue has made in this place on any number of occasions regarding the use of rapid testing and other technologies. Given the significance of this change nonetheless, a brief period of time for SARC—to quote one of my colleagues—to have a short, sharp report and a short, sharp look at these matters we believe is incredibly important.
Ms SYMES: I will not be supporting the procedural debate and proposal to send this bill to SARC. I am a little perplexed that the opposition purport to support the intention of the bill, notwithstanding they had issues about the timing. I am not sure that the question of the timing is a reason to hold up this amendment from being able to go through the chamber today and enable the courts to recommence their jury trials. I would put on record that there are two jury trials underway at the moment in the Supreme Court. These reforms are predominantly around facilitating the recommencement of jury trials in the County Court, which is where the vast majority of jury trials are held, and also it involves a lot more interaction of people coming and going from that court as opposed to the ability of the Supreme Court to bubble their trials effectively in their larger spaces. There are a number of conversations that I continue to have with the courts about how we can best support them to get through their court backlogs. The jury commissioner discretion to exclude unvaccinated jurors is just one of the measures that we have been exploring. Testing regimes are something we are discussing as well.
My concern about sending this to SARC—even though the opposition have indicated support for this amendment—is that it does nothing more than hold it up. The reason I am using the terrorism bill and did not wait for another bill in due course is that I was hoping to give some certainty to the County Court in particular to be able to get back to their jury trials. I think I have explained the reasons for the timing, and if that is the only thing that you want SARC to examine, then that would not justify the reason to hold this up to enable it to go to that committee, notwithstanding the important work that they do. I have sent around to all members the letter that I did send to SARC, which goes through the rationale for the changes that we have sought to make through this amendment and their interaction with the human rights charter.
Mr DAVIS: I again just want to support Dr Bach’s position here. This is a very modest, sensible step that actually enables these matters to be looked at quickly by SARC. We do not want to hold this up any more than is necessary, and that is the first available date after today. SARC could do its work in just a week or two, and we would have a stronger position to proceed.
Committee divided on motion:
| Ayes, 13 | ||
| Atkinson, Mr | Davis, Mr | McArthur, Mrs |
| Bach, Dr | Finn, Mr | Ondarchie, Mr |
| Bath, Ms | Hayes, Mr | Patten, Ms |
| Crozier, Ms | Lovell, Ms | Ratnam, Dr |
| Cumming, Dr | ||
| Noes, 20 | ||
| Barton, Mr | Maxwell, Ms | Tarlamis, Mr |
| Bourman, Mr | Meddick, Mr | Taylor, Ms |
| Elasmar, Mr | Melhem, Mr | Terpstra, Ms |
| Erdogan, Mr | Pulford, Ms | Tierney, Ms |
| Grimley, Mr | Shing, Ms | Vaghela, Ms |
| Kieu, Dr | Stitt, Ms | Watt, Ms |
| Leane, Mr | Symes, Ms | |
Motion negatived.
Ms SYMES: I believe we have canvassed these issues extensively. Everyone looks as though they know what we are talking about.
Mr BOURMAN: I am not a fan of mandating these things, so I will not be supporting these amendments either.
New part heading and new clauses agreed to; clause 31 agreed to.
Long title (15:36)
Ms SYMES: I move:
5. Long Title, after “other Acts” insert “, to amend the Juries Act 2000 to provide for the Juries Commissioner to exempt persons or classes of person from being summoned for jury service”.
Amendment agreed to; amended long title agreed to.
Reported to house with amendments, including amended long title.
Ms SYMES (Northern Victoria—Leader of the Government, Attorney-General, Minister for Emergency Services) (15:37): I move:
That the report be now adopted.
Motion agreed to.
Report adopted.
Third reading
Ms SYMES (Northern Victoria—Leader of the Government, Attorney-General, Minister for Emergency Services) (15:37): I move:
That the bill be now read a third time.
The PRESIDENT: The question is:
That the bill be now read a third time and do pass.
House divided on question:
| Ayes, 29 | ||
| Atkinson, Mr | Grimley, Mr | Shing, Ms |
| Bach, Dr | Kieu, Dr | Stitt, Ms |
| Barton, Mr | Leane, Mr | Symes, Ms |
| Bath, Ms | Lovell, Ms | Tarlamis, Mr |
| Bourman, Mr | Maxwell, Ms | Taylor, Ms |
| Crozier, Ms | McArthur, Mrs | Terpstra, Ms |
| Davis, Mr | Meddick, Mr | Tierney, Ms |
| Elasmar, Mr | Melhem, Mr | Vaghela, Ms |
| Erdogan, Mr | Ondarchie, Mr | Watt, Ms |
| Finn, Mr | Pulford, Ms | |
| Noes, 4 | ||
| Cumming, Dr | Patten, Ms | Ratnam, Dr |
| Hayes, Mr | ||
Question agreed to.
Register of opinion on question
Noes: Mr Limbrick, Mr Quilty.
Read third time.
The PRESIDENT: Pursuant to standing order 14.27, the bill will be returned to the Assembly with a message informing them that the Council have gone through the bill and have agreed to the same with amendments.
Liquor Control Reform Amendment Bill 2021
Second reading
Debate resumed on motion of Ms PULFORD:
That the bill be now read a second time.
Mr ONDARCHIE (Northern Metropolitan) (15:45): I rise this afternoon to speak on the Liquor Control Reform Amendment Bill 2021. This bill amends the Liquor Control Reform Act 1998 to implement the outcomes of the government’s review of that act. The review considered many ways to reduce red tape and regulatory burden, to modernise the laws applying to the liquor and hospitality industries in Victoria and to ensure the effectiveness of the act’s harm minimisation requirements and measures.
The government first started a review of the principal act in 2016—five years ago. Clearly, they are working at the speed of light. This review started five years ago, and it has just come to the chamber now, in 2021. The idea behind the review was with an intent to reduce red tape and to reduce the regulatory burden on liquor and hospitality industries.
The review was expanded following recommendation 93 of the Royal Commission into Family Violence, which called for a review to consider family violence and alcohol-related harms, including consultation with people with expertise in the relationship between family violence and alcohol use. The resulting bill is very wideranging in scope, and it has been highly contested by those wanting changes in favour of harm reduction and those who seek greater certainty for industry.
Let me talk you through the main provisions of the bill that is before us today. Clause 4 replaces the term ‘misuse and abuse of alcohol’ in the principal act with a new definition of ‘harm’ which includes ‘harm to minors and vulnerable persons, family violence and antisocial behaviour’. Clause 7 introduces a new licence category for online-only vendor packaged liquor licences to accommodate the growth in online liquor sales. Clauses 8 to 10 extend ordinary trading orders for general licences as well as licensees of restaurants and cafes, from 11.00 pm to 1.00 am as of right, without the need for a specific licence condition.
Clause 14 creates a new licence category for online-only sale of liquor, and clause 17 sets out standard conditions for online orders and empowers the minister to impose additional conditions on the sale of packaged liquor, including requirements that orders are only delivered to the person who placed the order. The person who placed the order must be present at the time the liquor is delivered, and the person responsible for the delivery must verify the age of the person who placed the order by requiring the person to produce an evidence-of-age document. And I will talk more about that later in my contribution.
Clause 18 empowers the minister to authorise a licensee or classes of licensees to supply packaged liquor off premise during a state of emergency. Each transaction cannot be more than 1.5 litres of alcohol—that is two bottles of wine or 12 bottles of beer or cider or pre-mixed spirits or a bottle of prosecco or something like that. Clause 22 requires applications for packaged liquor outlets with a floor space of 750 square metres or more to be the subject of a community impact assessment, requiring consultation within a 5-kilometre radius on the positive and negative social impacts of the proposed application on the local community.
Clause 42 creates additional offences relating to the delivery of online orders, including extending an obligation to the delivery person, who must not deliver an online order to someone who is intoxicated or in their view at substantial risk of intoxication. Clause 52 introduces new powers for parties to seek a review of the commission’s decisions at VCAT and provides another cheaper avenue and allows for more streamlined processes for industry, as opposed to having to go to the Supreme Court. And clause 57 delivers on the government’s commitment during the 2018 election to abolish the dry zone in the City of Boroondara and the City of Whitehorse.
There are some concerns with this bill, one of which is that a RIS, a regulatory impact statement, has been completed but the government will not release that RIS because they are citing ‘cabinet in confidence’. Labor’s election commitment in 2018 to repeal those dry zones has not been very well understood by those communities. The government were unable to say to us whether they had consulted with the councils that were impacted. They were unable to tell us whether they had been to the City of Boroondara or whether they had been to the City of Whitehorse and talked about what that commitment meant. There is a concern that allowing online-only liquor vendors to trade on Christmas Day or on Good Friday would put small retailers like, for instance, the local IGA at a bit of a risk and a competitive disadvantage. It is unlikely to be well received by those small businesses, and I suspect—I just suspect—that churches might have something to say about it as well.
This is another concern that I have: the bill also requires the person who makes an online order to be the one who is there to receive it. What does that mean to the gifting business? It presents a really serious challenge to places like wineries, people who provide hampers and the packaged liquor industry—for example, places like Dan Murphy’s, who I think on all estimates do about 50 000 gifting orders delivered from their stores alone, and many of those are for a single bottle. For example, I have done it during the time of lockdown. It was one of my sons’ birthday. He lives quite a distance from me. I ordered something through Dan Murphy’s, a single bottle of alcohol, to be delivered to his premises as a ‘happy birthday’ from his mum and dad. Now, he would have had to have been home and the recipient of that gift according to this bill that is before us today. So how is that going to work? Can his partner receive it on his behalf? Can his neighbour receive it on his behalf? Can we leave it by the front door?
This is going to hurt businesses that deliver hampers et cetera. You know, if you send a gift to somebody, you might send a whole range of things in a hamper—some fruit, some chocolate, some flowers and maybe a bottle of wine to go with it as well. Well, according to this bill, that is going to make that very difficult to occur, so there are some anomalies in here. Imagine the wineries and cellar doors who take these orders. You might recall, and I see Mr Finn nodding here, the old Reader’s Digest wine club, where you could join the wine club and every month in a particular week you would get a selection of your reds or your whites or a combination of such—the Australian does it as well now; there are a whole range of them—delivered to your home. Well, how would this work under this bill? They say, ‘It doesn’t affect them’. Imagine the impact on wineries and cellar door sales and those who provide hampers and a range of things through this bill. It has not been well thought out.
We have done a lot of consultation on this. We have talked to Retail Drinks Australia, Endeavour Group, Supa IGA, the Master Grocers Association, the Australian Hotels Association, Wine Victoria, the Alcohol and Drug Foundation, the Centre for Alcohol Policy Research, Alcohol Change Vic, the Foundation for Alcohol Research and Education, the Uniting Church, the Woman’s Christian Temperance Union and to our own colleagues, our own MPs representing their local areas, just to see what the feedback is. And it seems to me that the opposition has done more consultation on this bill than the government has, because there are plenty of people saying, ‘We hadn’t heard. They haven’t spoken to us about it at all’.
Mr Finn: They never consult stakeholders.
Mr ONDARCHIE: Picking up on Mr Finn’s interjection, it seems this is a bit of a track record for this government. They do not consult on anything; they just go and do, which is very disappointing.
Opposition amendments circulated by Mr ONDARCHIE pursuant to standing orders.
Mr ONDARCHIE: We have, as the state opposition, a number of amendments to this bill. I will speak in greater detail to these amendments in the committee stage of the bill should the house allow it, but let me just say these amendments do a number of things. They will require a three-year review of the operation of the temporary liquor licence. They will remove the repeal of the dry zones. They will oppose clause 14(1)(b), which allows for online-only liquor vendors to trade at a time on Christmas Day or on Good Friday determined by the commission and specified in the licence. And our amendments will amend new section 18C(2), with respect to the supply of liquor to allow a nominated person to receive the order if the order is a genuine gift. There is a range of things which I will talk about in the committee stage of the bill, and I thank the house for the opportunity to speak to it today.
Ms WATT (Northern Metropolitan) (15:55): I have been certainly waiting to speak today to this bill, which introduces some significant amendments and is one that ensures that the act is effective in minimising harm from alcohol while also continuing to support a responsible liquor industry. I will begin by thanking the many groups that have contacted me in anticipation of this bill before us, both alcohol and drug advocacy groups, health organisations and those from the liquor and hospitality industry. In particular I thank the Foundation for Alcohol Research and Education, who took the time to engage with me the on this issue and shared their concerns with the act as it stands. I also wish to thank the office of Minister Horne and indeed Minister Horne herself for taking the time to listen to my thoughts on this bill and the feedback that I shared with her from the stakeholders that I met with.
Alcohol sales have increased, especially during 2020. We know that an increase in the amount of alcohol flowing into homes in Victoria is likely to fuel an increase in harms, including assaults, family violence and long-term health and mental health problems. It is why it is so important that the act is strengthened. It is an opportunity to reduce the impact of alcohol-related harms in our community, particularly for women, children and Aboriginal and Torres Strait Islander communities.
While the act’s primary objective is to reduce harm, ‘harm’ is not currently defined within the act. While it may seem like a minor step, including a definition of ‘harm’ in the act is an important and needed step. When the regulator, the Victorian Commission for Gambling and Liquor Regulation (VCGLR), makes a consideration, this added definition will provide greater clarity and certainty for it when considering the act in its decisions.
I am really glad to see that ‘family violence’ will be included within the definitions. This was a key recommendation from the Royal Commission into Family Violence. The royal commission recommended that a review of the Liquor Control Reform Act 1998 consider family violence and alcohol-related harms, and with this bill there are a number of other harm minimisation provisions that will be included in the act.
This bill will specify types of advertisements and promotions that are not in the public interest and can therefore be banned. This includes advertising that promotes violence or advertising that directly or indirectly appeals to minors or is of a sexual, degrading or sexist nature. A power to prescribe advertising or promotions that would be subject to the ban, allowing flexibility to respond to any emerging advertisement of concern, will also be inserted.
The bill will also require large packaged liquor outlets to undergo a more rigorous application and objection process, including a community impact assessment. The bill will reform the application and objection process for applications considered to be high risk. Large packaged liquor outlets with a floor space greater than 750 square metres will be considered a high-risk application for the purposes of the act. Large packaged liquor outlets have been associated with an increase in liquor-related harm in local communities. A high-risk application will undergo a more rigorous liquor application process that ensures that the risk of harm is more clearly and comprehensively considered. This will include the requirement to submit a community impact statement which requires consultation with the community and fully considers the impact on the community. Further to this, the bill will allow any person to object to the application on the grounds of harm as newly defined in this bill. Combined, these measures will ensure that the impacts on the community are appropriately considered for high-risk applications.
This government recognises the significant impact that COVID-19 has had on the industry, and we know that it has not been easy. The amendments to the act that are introduced in this bill are in addition to a significant amount of initiatives from the Andrews Labor government to support our hospitality and liquor sector. This includes support packages for the licensed hospitality sector of over $200 million, helping the industry reopen once we hit the golden vaccination target and providing planning exemptions that facilitate more outdoor dining so that our favourite local pubs, cafes and restaurants can trade in a COVID-safe way and bring back an increased number of patrons to their venues. The government has also waived liquor licence fees for 2020 and 2021. Responsible service of alcohol training has been moved online to provide greater flexibility for employment in the hospitality and liquor sectors during this time. This bill amends the act to make support for the industry easier to access and ensure the VCGLR can more efficiently provide support to businesses in the industry. The amendments provide much-needed flexibility to respond to circumstances created by a state of emergency and to support licensees affected by such circumstances.
I know especially in the City of Melbourne that there are a large number of licence-holders who are struggling, and I have been fortunate enough to have had conversations with so many businesses in my electorate of the Northern Metropolitan Region who are wanting that additional level of flexibility to provide liquor in new and innovative ways. For example, this bill provides the minister with the power to authorise licensees who would otherwise not be able to to provide packaged liquor to consumers. Local and small businesses applying for permission to supply packaged liquor in addition to their existing licence has been a very common occurrence, and I am sure that many of us in this place and indeed across the Victorian community have called on one of their favourite local venues to get a delicious takeaway meal along with packaged liquor. I know that liquor licensees in my electorate will be really glad that this extra layer of red tape is being reduced, allowing them to diversify their sales and adapt their business during the state of emergency.
The global coronavirus pandemic has also highlighted the need for the VCGLR to be able to respond quickly to emerging industry issues. Since the beginning of the global coronavirus pandemic last year, we have seen a number of new ways in which businesses are engaging with consumers. The hospitality industry especially has been really difficult. It has had a really difficult run in these last 18 months. I know where I live in Brunswick this is especially visible. The hospitality industry more than most have had to innovate in order to continue to engage with their communities, especially in the online supply and delivery of alcohol.
Across Australia online alcohol sales tripled in fact during 2020. These increases in online alcohol sales have been during COVID-19, where the convenience of online alcohol delivery has been appealing to so many. Woolworths, who own BWS, Dan Murphy’s and Jimmy Brings, reported in their 2020 annual report that alcohol deliveries have increased 161 per cent. While the industry continues to modernise, it is important that the Liquor Control Reform Act 1998 continues to modernise and adapt with it. This bill better regulates the online supply and delivery of liquor and creates a new licence category for online-only sellers. The regulation introduced in this act largely reflects the existing industry best practice that is already being adopted across most of the industry.
Additionally the bill creates a brand new liquor licence category of online-only vendors of packaged liquor for businesses with no retail premises who are entering the online market. I have heard from a few people in the industry over the last few months about the importance of this new category, and not just during the coronavirus pandemic. Many of the new ways in which we interact with business, again, will stick around in the future as well. I know the industry will welcome the change and the new opportunity that comes with it.
This bill is also about making the online supply of liquor safer. There will now be prohibitions on liquor suppliers delivering to persons who appear to be intoxicated and prohibitions on same-day unattended deliveries and unattended deliveries on any day if it is the customer’s first order. The act will require ID and age verification procedures so that suppliers can verify and confirm that a customer is 18 years old or over. We know that there is a potential for online ordering of alcohol to be harmful. Indeed before coming to this place I served on the VicHealth board, among other community health organisations. Online on-demand liquor delivery was an issue that I remember plenty of discussions around—around the risks that it brings and the need for the act to bring reform and regulation to the emerging forms of alcohol supply. Bringing in harm minimisation strategies so that this new and adopted method of liquor supply can be safe is important, and I am happy to see that these are being brought in. I am also aware that these already largely reflect the best practices that exist within the industry, but it is also important that these practices are incorporated into the act.
There are a number of other measures that reduce red tape for the industry alongside the harm minimisation items in this bill. The bill will allow restaurant and cafe on-site and general licences the ability to supply liquor on premises for an additional 2 hours until 1.00 am as of right, without the need to apply for a further approval from the VCGLR. This bill also introduces a new power for the VCGLR to hold compulsory conferences for licensees and objectors. This will provide a less formal process for the parties to discuss matters at issue and attempt to reach an agreement, reducing the need for a lengthy and more expensive review hearing. There is also significant red tape reduction for local producers who make sake and mead within our state. An addition to the act through this bill will permit sake and mead producers to supply their product from a cellar door or at promotional events, just like the producers of beer, wine, cider and spirits. Creating this consistency within the industry is really important. It is also why this bill will insert a power to prescribe other products for which its producers will be eligible for a licence category, providing flexibility within the act to capture other licensed products as they emerge. Not only does this ensure consistency across the industry, it provides potential liquor producers certainty and it allows them to emerge in the liquor market in the future.
This bill will also deliver on the government’s election commitment to abolish dry area polls in the state, which exist and are compulsory within a small number of suburbs in the cities of Boroondara and Whitehorse. We know these polls are costly and outdated, and their repeal will bring these parts of the city in line with the rest of Victoria and ensure liquor licensing laws are consistent throughout the state. Indeed consistency is the theme of this bill, and I have heard loud and clear from those in the industry and those that have taken the time to contact me over the past couple of months that we need consistency in our liquor licensing laws in this state. Whether it be between local government areas or indeed between different forms of liquor, the industry needs stability, it needs certainty and consistency, and this bill delivers just that.
Other red tape reduction measures include the simplification of the process for an owner or mortgagee to cancel a licence that exists after the licensee has vacated their premises. Currently the process is a long and onerous one, where an owner of the premises has to be endorsed on the licence before they can apply to cancel it. With the passage of this bill the act will allow the mortgagee or owner of a premises to apply to the VCGLR to cancel the licence, obviously with a number of safeguards in place.
Finally, this bill will introduce an important amendment to the act that strengthens and clarifies the operation of liquor accords. These accords are effective tools in minimising harm from the misuse and abuse of liquor, and this bill introduces several improvements to their operation. For example, these include clarification on police consultation, the requirement for accords to be published on the VCGLR website and the introduction of a new offence requiring accord members to keep information confidential.
To sum up, this is a really important piece of reform work. Not only does it acquit an election commitment, it also addresses a key recommendation from the Royal Commission into Family Violence. I know there is work still to be done in this space; however, this is a step in the right direction in addressing harm caused by alcohol-related violence while balancing the needs of businesses in our community as they recover from the COVID-19 pandemic.
Sitting suspended 4.08 pm until 4.24 pm.
The ACTING PRESIDENT (Mr Bourman): Before I call Mr Meddick for his contribution on the Liquor Control Reform Amendment Bill 2021, I wish to advise the house of the procedure for co-sponsoring house amendments to a bill. Whilst there is no formal procedure under the standing orders of our house, members may recall that a co-sponsored bill was introduced in this chamber in November 2019 by Dr Ratnam and Ms Patten. Consistent with this practice and in consultation with the clerks, I have accepted the request for co-sponsorship of house amendments. As with the procedure for co-sponsored bills, there should be a lead sponsor for any co-sponsored house amendments to bills. This means that the lead sponsor may indicate house amendments are circulated or moved also on behalf of the co-sponsor. Also consistent with the procedure for co-sponsored bills, any further co-sponsors may speak on the house amendments and answer any queries on these amendments in the committee of the whole.
Mr MEDDICK (Western Victoria) (16:25): I understand there is support for this bill. Many would see that at a base level allowing someone to order and have delivered with their meal a nice bottle of wine or a sixpack with their pizza, looked at in isolation, sounds like a harmless and even a sensible thing to be able to do. Indeed if we lived in an ideal world, it would be—one where there are no potential existing problems to this service, one without alcohol-fuelled family violence, one without the exploitation of an underpaid workforce. I mean, we already allow this to occur in some limited capacity, right? And that is the point: the restaurant industry have proven over decades that they are responsible operators with years of experience in serving alcohol with meals. There are even new entrants to that sector who understand and abide by the strict guidelines that sector operates under. But just because one part of the restaurant trade is capable and responsible does not mean they all are. Sometimes restriction is what is needed. Sometimes a little bit of something is the only way a society is capable of handling something in a responsible way. Sometimes when we open a door too wide, we let in a host of problems.
Some of my other colleagues will speak here today of the danger of supplying an already intoxicated person alcohol via delivery under the guise of food delivery and what that can often mean in a family violence situation. I am deeply concerned about the potential for that to occur—as someone who cannot drive because they are drunk simply waits for that delivery, all the while their anger simmering away under the surface and becoming worse as they await that delivery.
We will hear what others have to say about delaying or amending the bill to ensure hours between order and delivery, but I am not convinced that that is the answer. Nonetheless, if the amendments that Mr Barton and I are proposing fail, I will be supporting any amendments that limit the capacity of this service. I want to take a moment to thank Mr Barton for coming together with me on this one. At this point in time I am happy to have those amendments circulated.
Animal Justice Party and Transport Matters Party amendments circulated by Mr MEDDICK pursuant to standing orders.
Mr MEDDICK: I want to thank Mr Barton for co-sponsoring these amendments because we share the same concerns. I want to thank our members of staff, who worked so diligently on them.
I just want to paint a picture, a story of why I cannot support the bill in its current form without at least the amendments that my colleagues will propose. Mr Barton and I propose amendments that will seek to stop the continued exploitation of one of the lowest paid worker groups in Australia. I want you to imagine the next time you answer your door to the person delivering your food on their bike or scooter for the princely sum of around $8 an hour that same person riding through the cold and rain of a Victorian winter. They step up to the door, and it is answered by a clearly intoxicated man with a group of others. Our deliverer can clearly see that this man is intoxicated and that he or she should not deliver that alcohol with the food. They may make an attempt not to, but it will become clear that if they do not they are going to suffer an assault. They are threatened, scared and just want to get away safely. So they deliver and leave, frightened. This does not generally occur inside our restaurants, where we have trained and accredited staff, and where there are other customers or even security. A responsible service of alcohol certificate is a requirement in these establishments, a system that enforces guidelines and behaviours, with consequences for those in breach and protections for those who abide by them. There is none of that for our delivery person.
I want to see these exploited workers protected. That is Mr Barton’s and my motivation; we share the concern for these workers. So we are bringing in amendments that will allow only delivery from a food outlet by someone who is directly employed by that outlet or restaurant—directly employed full-time staff; someone who is earning the right wage, who has the workplace protections afforded an employee, who holds an RSA. I do not want to see an exploited delivery person, unprotected because they are considered a contractor not an employee, threatened both by the person ordering the alcohol and the platform and outlet they are delivering for because they are doing the right thing and denying service. In my opinion this is one of those situations where we need to be careful what we wish for, and I do not want those exploited delivery workers to be the casualties.
Mr BARTON (Eastern Metropolitan) (16:31): I rise to speak on the Liquor Control Reform Amendment Bill 2021. This bill will be incredibly damaging to our community. This bill will put more alcohol in the hands of minors. This bill will increase alcohol-related harms, family violence, addiction and mental health issues, and this is coming at an extremely vulnerable time for Victorians. We have had the longest lockdown in the world. Understandably we have all coped in different ways. One coping mechanism throughout this pandemic has been alcohol. Alcohol intake increased for the first time in four years in 2020. Women in particular were drinking more than ever before. This alcohol intake during lockdowns is nothing to laugh at. Last year the coroner’s data was especially damning. We had the second-highest number of overdoses on record: 526 Victorians fatally overdosed, and of these, 154 had alcohol as a contributing factor. We had the highest rate of alcohol-only overdoses and we had the highest rate of women fatally overdosing on alcohol on record, yet this bill seems to make alcohol even more accessible. I am staggered.
This bill will make it easier for both minors and intoxicated individuals to obtain alcohol. The bill requires only that the licensee provide instructions to the person responsible for the delivery of the liquor to verify the age and ensure that the liquor is delivered to the person who placed the order. That is not good enough, and we all know that. Merely providing instructions to a delivery driver or rider is not enough to ensure that the verification of age and identity will be completed. Not only that, but the proof-of-age identification is only required to be checked on the first delivery, and any delivery after that can be left on the doorstep at the customer’s request. How many efforts have been made to put some sensible checks and balances into this bill? Not a lot.
This bill will allow minors to order alcohol on their parent’s food delivery service app and receive it with no requirement to show their face or their identification, not to mention that if they are requested to leave the order on the doorstep, there is no way for drivers to know they are delivering to a highly intoxicated individual and putting them at greater risk of injury and hospitalisation. Not only are these provisions useless in actually preventing minors and highly intoxicated individuals from accessing alcohol, but I consider them downright negligent. Alcohol-related harms do not just affect individuals and their families; they affect the whole village. We will be worse off from this bill.
I have spoken to a number of family violence organisations in preparation for this bill, and what I have learned worried me even more. Edvos, a family violence service for women and children in the Eastern Metropolitan Region, found that 62 per cent of their risk assessments identify drug and alcohol abuse as a risk factor—62 per cent of all their family violence risk assessments—and this bill will allow family violence perpetrators to Uber Eats a sixpack late at night and have it delivered within 15 minutes. These past few years I have been glad to see family violence discussed and acknowledged as the serious issue it is, yet here we are. This bill is an insult to all family violence victims. On average in Australia one woman a week and one man a month are killed by a current or former partner. The risk is especially high for women of Indigenous backgrounds, with Indigenous people being 32 times more likely to be hospitalised from family violence than non-Indigenous people. Knowing this and seeing this bill before me today, it is extremely disappointing.
Alcohol, family violence and homelessness go hand in hand. In fact, Mission Australia found that one in three clients seeking assistance from homelessness services stated domestic and family violence as the most common main reason for seeking help. I wish I could say that surprised me, but it does not. In Melbourne we are experiencing a homelessness crisis. In the Eastern Metropolitan Region you only have to look past the leafy streets to see just how many people have fallen through the cracks. There are women sleeping in their cars with their children because they fear for their lives and they have got nowhere else to go. Do not mistake me; this is absolutely connected to drug and alcohol abuse in our community.
In talking with these family violence organisations it was clear that the trip to the bottle-o is often an important roadblock. It means one person often stays sober. It also provides an important break for those drinking to sober up. This bill takes away that roadblock. The easier it is for perpetrators to get their alcohol at the door, the more likely it will fuel family violence. Drinking excessively at home is also damaging for our young people. It often leads to unhealthy patterns and choices for children as they grow up. It has adverse effects on the children’s attachment style and affects their ability to trust and have safe relationships. It is especially worrying given that the young people raised in a violent home are more likely to grow up and commit family violence themselves. We know this happens. Alcohol abuse and family violence is a damning cycle of fear, pain and disadvantage. This bill keeps that cycle going.
You have to wonder what the government is thinking, as this bill allows the CEO of a multimillion-dollar corporation to delegate his legal and moral responsibilities of refusing service to vulnerable and exploited food delivery drivers and riders. The government is going to give them a little sheriff’s badge and say, ‘You are now responsible’. We are not saying we are going to pay them a minimum wage. We are not saying we are going to pay them WorkCover. We are not going to pay any of those things, but ‘You’re going to work for these multimillion-dollar grog barons’.
Food delivery drivers are some of the lowest paid workers in this country and are known to be earning less than $10 an hour. Riders are predominantly young temporary migrants, making them more vulnerable to exploitation. We have seen time and time again that these food delivery service providers penalise or ban drivers or riders from the platform without proper review or the opportunity for dispute resolution. Drivers and riders are likely to feel a perceived pressure to deliver the alcohol, regardless of the age or condition of the person receiving it, in fear that they will be penalised or banned from the app for refusing delivery.
To anybody who wants to put up the argument that they have got a choice: when you are out there working in the middle of the night and you are only earning eight bucks an hour, you have got no choice; you are doing it because life has dealt you a crap set of cards. There will also come situations where delivery drivers and riders—on the doorstep of a heavily intoxicated and aggressive individual late at night facing the real prospect they will be refused service—will be subject to physical, verbal and racial abuse. If the driver chooses to provide the alcohol to the customer in fear of their safety, it is unclear who will be liable if the intoxicated customer commits an assault or if a minor becomes unwell and is hospitalised after consuming alcohol. Essentially these drivers and riders will be damned if they do and damned if they do not.
It is important to acknowledge that the government has failed to provide enough resources to meet the demand for drug and alcohol services even now. The Victorian Alcohol and Drug Association found that on any given day in July 2021 there were 3600 people waiting for treatment across government-funded treatment types. Right now we have thousands of individuals who desperately need help and are seeking it, but they cannot access it. Why would we want to fuel even more demand on what is already overloaded and under-resourced? We do not have the capacity to deal with the consequences of this bill. I will speak to some of the amendments a little later on.
Ms TAYLOR (Southern Metropolitan) (16:41): I note some of the concerns that have been flagged here, and I am certain that Minister Leane will address those specifically in the committee stage. What I was going to speak to were just a couple of aspects—first to note, but not to acquit in full, that harm minimisation has certainly been an important element in the development of this bill. The review of the Liquor Control Reform Act 1998 considered the effectiveness of the act’s harm minimisation measures, including the degree to which they can play a part in minimising the incidence of family violence, as recommended by the Royal Commission into Family Violence. The proposed amendments to the act included in the bill recognise family violence as a harm associated with alcohol.
I am not suggesting that that acquits all the concerns that have been flagged, but rather that direct nexus that can certainly result between family violence and alcohol is fully recognised—without a doubt, absolutely. My late grandparents—there was no family violence, I should say—were alcoholics, so I am familiar with some of the habits and the stresses and strains, incredible and undue stress, that can be caused through alcoholism and the various means that people will go to to be able to find particular addictive products, as they can, in order to meet inner traumas and other things that may be going on in their lives. I guess the only reason I am making the point is to say that the government is fully cognisant of the fact that family violence and alcohol have a proven nexus in that regard. Certainly there is the definition of ‘harm’ in this bill, which includes reference to family violence. That will not go the full way to acquitting that issue but will just in a way round out the discussion at this point in proceedings ahead of Minister Leane going to some of the significant concerns that you have raised. I just did not want to be dismissive on that point at all.
Actually my reason for speaking at this point—because I know my learned colleague Ms Watt has already spoken in depth to the important elements of the bill—was just to speak on something that is actually specific to the Southern Metropolitan Region and to note that we did make an election commitment to abolish dry zones. I think it is always important, isn’t it, to understand why we would change this measure, why we would make an election commitment. In 2018 we committed to abolishing outdated dry zone polls, and that is what the bill will deliver. These polls are required only in areas deemed dry areas, meaning that for a liquor licence to be granted, a compulsory poll of residents must be held. These dry areas are not found anywhere in the state except for a handful of suburbs in the Southern Metropolitan Region. Ashburton, Glen Iris, Camberwell, Canterbury, Box Hill, Balwyn, Mont Albert—well, some of them are in both regions, I should say, but anyway—and Surrey Hills are the only places where this extra burden is placed on business. Dry zone polls are an antiquated relic. I think they stem back to the 1920s, actually—to the era of prohibition—and date back to the anti-alcohol movement of the 1920s, like a hundred years ago.
Since 2004 the compulsory polls have cost Victorian taxpayers more than $500 000, with residents previously being fined $83 for not voting in these polls, and it is a law that does not extend to other Victorians, so we can see there is an obvious inequity in that and it is not actually achieving a particular outcome. Dry zone polls thereby impose an unfair burden—a burden on taxpayers, a burden on business and most of all a burden on residents—and we know that the licence is almost always granted anyway, in spite of the poll being undertaken. So we can see why these no longer have the relevance they once did back in the 1920s. Abolishing dry zone polls is a long overdue red tape cutting measure, and it will make it easier for businesses in my community to apply for a licence, just like everywhere else in the state, so just making sure everyone is on a level playing field in that regard. As we come off the back of the pandemic it is more important than ever that we support local businesses—I think that goes without saying. It is a sensible red tape reduction, and it will allow businesses in my community to bounce back. This change will bring these parts of our city into line with the rest of the state, making sure that liquor licensing rules are consistent wherever you are.
The final point that I did want to say on that is that there might have been concern flagged: well, does this mean that residents will no longer have an input into the licensing process? No, they can still have their say through both council processes and the regulator. So yet again, I think it should be equitable across the state. Why should it just be one region? And then they have to pay a fine if they do not vote on it—it just does not make sense anymore. It is 100 years out of date. It is time to have a level playing field, for it to be fair across the state. I did want to acquit that element of the bill, but I understand that Minister Leane will go to some of the other concerns that have been flagged in the chamber as well.
Ms CROZIER (Southern Metropolitan) (16:47): I am pleased to be able to rise and speak to the Liquor Control Reform Amendment Bill 2021. My colleague Mr Ondarchie has gone through, very thoroughly, elements of the bill in relation to what the government is wanting to achieve with bringing this piece of legislation into the house. There are a number of aspects I want to speak to, which Ms Taylor has just referenced, but I will come to those in a moment.
What this bill does is it amends the Liquor Control Reform Act 1998 to implement the outcomes of the government’s review of that act, which was undertaken some years ago, I believe. This review considered ways to reduce red tape and regulatory burden, to modernise the laws applying to the liquor and hospitality industries in Victoria and to ensure the effectiveness of the act’s harm minimisation measures. It is really looking at reducing the regulatory burden and ensuring that there is minimisation to harm caused by alcohol abuse. Mr Barton spoke about that and his concerns around family violence and the issues around alcohol abuse and family violence. As my colleague in the other place Steph Ryan indicated in the debate on the second-reading speech, she made note of the family violence recommendation that really goes to this point and which this bill is actually working towards, and that is recommendation 93. Now it is my understanding that recommendation 93 was to consider a review and that part of that review should involve consultation with people who have expertise in the interrelationship between family violence and alcohol use, and I understand that is what has happened. So that part of the bill is very clear. Clearly, clause 4, which goes to that point, replaces the term ‘misuse and abuse of alcohol’ in the principal act with a new definition of ‘harm’ which includes harm to minors and vulnerable persons, family violence and antisocial behaviour.
Now, whilst I am speaking about alcohol abuse and family violence, of course with the extended lockdowns we know that, sadly, family violence and alcohol abuse have increased, and there have been some terrible outcomes with that. This is just another impact of the extended lockdowns that have occurred in Victoria and what has happened as a result of those extended lockdowns. Of course I have spoken many times at other times in the house about the extended lockdowns impact on the mental health of children, the impact on the mental health of those business operators who have had enormous economic stress and pressures—some of those businesses that have actually gone to the wall—and of course the devastating consequences of not being able to see family and friends and loved ones and not being able to engage with your peers, especially for young children, and the impacts on kids of not being able to be at school too. So when you think about all of that, it is not surprising that alcohol use has increased and family violence has increased when there are such stressful circumstances as what we have endured here in Victoria, the longest locked down city in the world, with the harshest of restrictions and the worst outcomes. So it cannot be underestimated just how severe those impacts have been.
But returning to this bill, there are a number of other clauses which I will not go through in detail as I know Mr Ondarchie has done that extensively and also spoken to the amendments that the Liberals and Nationals will be moving in relation to this bill. But I did want to just say that clause 14, which creates a new licence category for online sales of liquor, was another issue that was raised by my colleague Ms Ryan in the other place around what that will actually mean. It does mean that holders of a licence will be able to trade on Christmas Day or on Good Friday, so those days that are very important notable days in our calendar. We all understand the importance of Christmas and Good Friday for those with Christian beliefs, and of course there are other notable days in the calendar for other faiths and religions which are equally important to those people. But Christmas Day and Easter—Good Friday—are very important. Those areas were determined by the commission, but as Ms Ryan said, there are restrictions in place and this was an area of the bill that she had some concerns about.
Now, clause 52 introduces new powers for parties to seek a review of the commission’s decision at VCAT, provides another cheaper avenue and allows for a more streamlined process for industry as opposed to having to go to the Supreme Court, so that is a good thing in terms of being able to have that streamlined process, take away that regulatory burden and reduce those costs for all those parties involved. I think that is a sensible measure, that part of the bill.
I want to speak to clause 57, which as Ms Taylor spoke of, is delivering on the government’s election commitment of 2018 to abolish the dry zones in the cities of Boroondara and Whitehorse. Of course this impacts a large part of my electorate of Southern Metropolitan Region, and when I raised it with some people in my electorate they did not realise that the dry zones were being abolished. I listened to Ms Taylor, and yes, she is right in saying these have been in place and there have been a series of polls that have been conducted over the years regarding the abolishment of the dry zones, and they have remained because largely the community have wanted them to be maintained. So whether it is a government commitment or not, it is about bringing the community with you and having the community understand that. Just because it has been in place for 100 years does not mean that it is wrong—quite the contrary. It means that it is there and the community are happy with that. So I do think this again just demonstrates how with the government it is ‘My way or the highway. We know best, we’re not listening to you and we’re going to do this anyway’. That is what we have seen, especially around this area, with the development of very worthy social housing projects that have had no consultation with the community and, appallingly, no ability for local council to have any say. With this bill that has happened again, because there has been little consultation with the affected councils.
In saying all of that, when I was speaking to the local community about these concerns, they were not aware of it. So I sent out a survey to the areas that were affected, and I got an enormous response back. We got thousands of responses back, and I am pleased to say that people were very pleased to be able to have a say and they were very pleased that they were hearing from their local representative—in this case from me—to understand exactly what was going on. It was a very simple survey, just: ‘Understand this is what the government is proposing, are you aware and do you support it?’. With those responses, there was an overwhelming response against it. Out of the responses there was something like 75 per cent that said no; they did not support the abolishment of the dry zone. Some of the comments in support were very respectful as well, and I appreciate those comments coming back from people who took the time to respond either for or against the abolishment of the dry zone.
So in support, and as others have said, of course we want to support the COVID recovery, especially for small business. We need to support small business, but I am not sure that building on every block in these areas is going to solve the economic crisis in Victoria—having new venues where they are going to support late-night liquor licences. In saying that, some of the people that responded were saying, ‘Yes, we support more restaurants with a liquor licence. We need to support local business smashed through COVID’. I could not agree with them more. And, ‘Young people need more venues in the area’. I think that is a worthy understanding as well, because young people do want to have amenity in their local areas.
But overwhelmingly, as I said, the response was, ‘No. We want our residential areas to stay a dry zone’, and, ‘It is unfair to residents to change legislation directly impacting us without consultation’. That was an overwhelming thing: they did not know. They wanted that consultation and the ability to have that consultation. ‘It is very important to maintain our dry area to minimise the trouble experienced in other areas’; ‘I am very saddened that our very hard-fought-for laws can be changed without us being aware of the proposed bill’; ‘Thank you for bringing the matter to our attention and for the interest’; ‘I think the current situation is a fair balance’; ‘The current laws have served us very well’; ‘We moved to the area because of the dry zone’; ‘Late night liquor licensing will destroy the amenity of a traditional family area’; and ‘We need to strike the balance between a safe and regulated neighbourhood and supporting local businesses who have suffered through COVID’. They are all very worthy comments, and I think they need to be put on the record, because people have taken the time. As I said, there were thousands of responses that we received, but they are just a few that I have picked out for the purposes of explaining to the house the concerns of those respondents that did respond to the survey that I sent out. I know Mr Davis and Mr Smith did too in their areas, because these are the areas that have been affected.
In that respect, as I said, Mr Ondarchie has laid out the opposition’s concerns in terms of the amendments we will be moving. He has circulated those, and I would call on the house to support them so that we get this legislation right.
Mr GRIMLEY (Western Victoria) (16:59): I rise today to speak about the Liquor Control Reform Amendment Bill 2021. It would be remiss of me to not start this debate by talking about the tragic effects that alcohol has on our community. Its impact is greater than any other drug, probably because it is so accessible. The power that alcohol companies wield over our governments, Labor and Liberal alike, is frankly a blight on Victoria’s decision-making capability and has clouded the achievements successive governments could have had with reform in this space. I spoke in this place in late June when my motion on SCRAM CAM bracelets was being debated. In that debate I spoke extensively on the types of alternative approaches our justice system can take to respond to recidivist alcohol and other drug offenders. I acknowledge that today we are not talking about alcohol-driven criminals, but my sentiments remain: there are some people that have proven time and time again that they should not have the right to drink.
What I am about to contribute may seem a little anti alcohol. I assure you that I love a beer and a wine just like the next person, but I know there are others that do not know just how to have one or two beers or one or two wines. For those who might criticise my stance today and think, ‘We need competition and we need businesses to grow’, I remind you that alcohol licences have outstripped population growth for decades. Whilst the population grew by less than 9.5 per cent in the last five years, liquor outlets grew by 17 per cent. They are flooding the market. Clearly there is plenty of booze around. A quick search of the Victorian Commission for Gambling and Liquor Regulation (VCGLR) website will tell you that currently there are 24 719 liquor licences operating—wow!
Let me continue by speaking about a man called Jimmy. Jimmy supplies alcohol; in fact Jimmy brings it to your doorstep in 30 minutes, ice cold. When you log on to Jimmy’s website, he tells you the earliest time he can deliver your order. When I logged on he told me he could be there by 11.00 am—this was under 30 minutes—with spirits, beers, wines, whatever I needed and beyond any amount I could possibly desire. I could send the alcohol to myself, or I could send it to someone else; they just needed to show ID. Jimmy also told me that every time an Aussie won gold at the Olympics he would give me 10 per cent off my order if I spent more than 60 bucks—bargain. Sadly, as many in this place may be aware, there was the death of a man in Sydney after the alcohol delivery service Jimmy Brings delivered three bottles of wine to his home almost every day in the weeks before he died. I do welcome the news that the New South Wales alcohol regulator is now apparently investigating Jimmy Brings. The man apparently spent $24 000 with Jimmy Brings on almost 300 orders in the three years before his death. I commend the code of conduct many same-day delivery groups have voluntarily adopted; however, I also do not think Jimmy knows the damage he has the potential to inflict. That is why this bill is so important. It is regulating an industry that until now has been allowed to basically do whatever it has wanted.
Just before I dive into the bill itself, we must be clear about the impacts of alcohol as a result of this pandemic. This is because there are elements within the bill that continue the status quo that was established last year through an omnibus bill. This includes the inability for home delivery of alcohol with a meal from a cafe or restaurant. A new study by Turning Point analysing Ambulance Victoria’s data makes very clear the impacts of alcohol during COVID. The Age reported on 3 August that the proportion of alcohol-related call-outs to the home, as opposed to outside the home, jumped from 60 to 81 per cent from the start of the pandemic to the end of the state’s protracted lockdown last year. This is not too surprising, given we could not leave home for most of the time to enjoy a drink, but it is still worrying given this is dangerous drinking behaviour—when you need ambos to help you. Interestingly, Ambulance Victoria were attending to a different cohort. Whilst there was less scooping up of young drunk people on the streets, which I unfortunately experienced firsthand in the police force, they were now going to people’s homes and finding people drunk and mentally unstable. The demographic had also completely shifted, with many reports of mid-30- to mid-40-year-olds, many of them women who otherwise had never had drinking issues, now becoming victims of alcohol. The reasons for this were reportedly financial pressures, boredom perhaps from losing their job or studies, juggling work, homeschooling and the restrictions of not seeing people that they love.
From the outset it is important to say that this bill does not go far enough. Dan Lubman, executive clinical director of Turning Point, said alcohol-related ambulance attendances for people in their 30s rose between 18 to 45 per cent in the middle of last year compared to the year before. Importantly, Professor Lubman also said that alcohol, especially in COVID, was a key driver of family violence, which we all know. Regardless of the very important causal link to family violence, alcohol consumption has increased greatly since the pandemic began. A Roy Morgan study released early in September shows that over 800 000 more Australians have been driven to drink in the last financial year. Nearly 70 per cent of Australian adults now consume alcohol in an average four-week period.
Given all these facts and statistics that I have just covered, I have consulted widely to come up with ways for this bill to be improved. Therefore I have drafted amendments to this bill, which I would now like to circulate if possible.
Derryn Hinch’s Justice Party amendments circulated by Mr GRIMLEY pursuant to standing orders.
Mr GRIMLEY: These amendments have come about as, although our party welcomes the changes brought by the government, we do not think the bill has enough protections within it. I will speak about these amendments later on, in the committee stage.
That leads me to where this bill has come from. This bill comes from recommendation 93 of the Royal Commission into Family Violence, which was handed down five years ago. Family violence advocates, academics and many other industry groups will tell you that this bill actually does little in terms of reducing family violence. Recommendation 93 states, and I quote:
The Victorian Government ensure that the terms of reference of the current review of the Liquor Control Reform Act 1998 (Vic) consider family violence and alcohol-related harms.
Apart from the definition of ‘harm’ that is amended in this bill, can the government explain where this bill addresses the actual involvement of alcohol in family violence? I concede that disallowing same-day delivery for intoxicated persons will go some way, but there are several flaws with how this element of the legislation will even be implemented.
Firstly, you are not mandating training for delivery people to know what intoxication is. How will they know what signs to look for? What happens when aggressive and intoxicated people pressure delivery persons to leave the alcohol? How will this be policed, when we apparently have less than 30 compliance officers to cover over 10 000 home delivery licences?
Secondly, Victoria currently has a penalty for licensees that serve alcohol to intoxicated persons, but I query how this will be enforced. In 2016, 13 000 people were fined for being intoxicated in a licensed venue, yet no licensees were fined for supplying the liquor to these people. This is despite serving alcohol to intoxicated people being clearly unlawful. So there are two issues to overcome: finding and identifying someone who has become more intoxicated through same-day delivery and also fining the licensees for doing so.
Thirdly, the current definition of ‘intoxicated’ is unclear and puzzling at best. This government bill clearly is not going to change that. If the government does not know how to define the term, how are licensees supposed to guide their contractors on how to identify this behaviour, and how are delivery persons themselves supposed to identify this behaviour?
Lastly, there is no opt-out or self-exclusion mechanism. Those who are seeking counselling or behaviour interventions for family violence and perhaps even victims of family violence as well may want to exclude themselves or be on a banned register for these tempting apps. Courts may also wish to enforce their sobriety orders through these apps to reduce the likelihood of breaking the order. But nowhere to be seen in this bill is a self-exclusion option.
The evidence clearly tells us alcohol increases the frequency and severity of family violence. It is involved in a quarter of police attendances to family violence episodes, according to this year’s Crime Statistics Agency data. This is why recommendation 93, arguably the only royal commission recommendation that points to the involvement of alcohol or other drugs in family violence, is so important. I honestly think that the government has missed a huge opportunity here and instead has played to influential alcohol companies, which is really disappointing.
Here is another example of how the bill could have been strengthened. The evidence is clear that the more retail liquor outlets you have in an area the higher family violence prevalence is. Dr Michael Livingston, Professor Peter Miller and Professor Tanya Chikritzhs are names synonymous with alcohol research. They suggest, in respective works, that if you reduce or monitor the density of new retail liquor outlets, you will reduce family violence. Livingston’s article, ‘A longitudinal analysis of alcohol outlet density and domestic violence’ in 2011 is absolutely worth reading for anyone interested in this area. It is not a new exercise either. Western Australia has a law that the government cannot issue a licence for a large packaged liquor outlet, one that is over 400 square metres, within 5 kilometres of an existing outlet in a metropolitan area or 12 kilometres in a regional area. This is practical and goes to my earlier point about liquor licences outnumbering population growth by about 50 per cent.
The Victorian government has not even touched on reforming outlet density at all, except for including community impact assessments (CIA). The bill basically says that if the ‘net economic and social impact’ of granting the liquor outlet application ‘would be detrimental to the wellbeing of the local community’ the VCGLR may—not ‘will’, but ‘may’—refuse an application. Can someone please tell me what the threshold of ‘detrimental’ is? My assumption is that it is a reasonably high threshold to meet for a bottle shop to be refused. Hopefully this query can be answered in the committee stage.
Further, we know from history that liquor licence applications are notoriously being granted by the VCGLR. Take Casey council’s battle with the commission in 2017. A 1400-square-metre Dan Murphy’s in Cranbourne East was approved, despite the council and the community arguing it would affect the amenity of the community. No wonder Casey is in the top three local government areas of the state for crime, family violence and other negative factors exacerbated by alcohol. At the time, the City of Casey mayor was even quoted as saying, and I quote:
Research shows there is a strong link between the proximity of packaged liquor outlets, alcohol consumption and incidences of family violence.
The council is concerned the adverse effects of alcohol use in our community are increasing.
Even the Chief Commissioner of Police supported the objection, saying the projected retail sales needed to be provided or he would not be able to assess if the application would be conducive to the abuse of alcohol. Interpretation of the act is in favour of liquor companies—simple as that.
How was this bottle shop approved when it would add to the existing 70 bottle shops in Casey, with 25 of those within a 5-kilometre radius? I do not know, but it is indicative of a problem that could have been fixed in this bill. In the words of a report commissioned by the Foundation for Alcohol Research and Education, the Casey example, and I quote:
… has had a potentially chilling effect on local governments attempting to refuse or object to new packaged liquor licences in the future.
In effect they are saying councils are not opposing liquor applications because they know their concerns will not be heard.
I do, however, thank the government for their work to provide for the community impact assessments. I do not hold my breath, though, that the councils and community members will have the opportunity to provide counterarguments or to object to the untruths in the CIAs provided by liquor companies. I say this because my office has spoken to councils that have dealt with the same issue in gaming. Why would alcohol be any different?
Lastly on councils, the Municipal Association of Victoria (MAV) stated in their submission to the liquor review in 2016, and I quote:
Local Government is a key stakeholder in both planning and in responding to referred liquor licence applications.
I was disappointed to learn councils themselves had not been consulted on this bill, not least councils with higher family violence and alcohol-related harm rates, like Casey or Geelong. Consultation with MAV only went as far as their submission, but as far as I am aware there was no exposure draft for their review, including of the significant changes in the venues’ licence hours and same-day delivery. After all, this review of the act was supposed to be about minimising harm and domestic violence, not about making alcohol more accessible.
Alcohol companies are notorious for targeting areas already struggling. Deakin University’s submission to the liquor control review stated, and I quote:
… alcohol outlets tend to flourish in areas of socio-economic disadvantage. For example, in regional and rural Victoria, there were six times as many packaged liquor outlets and four times as many pubs and clubs per person in disadvantaged areas.
If you do not believe me that access to liquor directly correlates with family violence, one study in the Northern Territory found that restrictions on alcohol outlet opening hours and takeaway sales on Thursdays led to a decline in admissions to women’s refuges—remarkable.
I query whether the department actually read the submission, because Deakin not only pointed out the problem but came up with a solution, which has been ignored. They recommended saturation zones based on the UK model. These zones inhibit the growth of liquor licences in high-risk areas as measured by factors such as existing outlet density and crime data. When an area has been judged as reaching saturation, no new licences are permitted and the onus is on the applicants to prove that their licence will not result in additional harms. This is similar to Western Australia’s approach but is based on evidence. Why hasn’t the government looked at that?
In terms of the compliance of licensees, I have been informed that across Victoria the VCGLR has about 15 to 20 compliance officers in the city and three or so officers in regional Victoria. That means for the whole state we have less than 30 compliance officers that cover about 25 000 licences, as it stands. This bill will add at least an additional 6500 liquor licences where alcohol can be sent to your home. If my maths is correct, we will need another 50 to 60 compliance officers to deal with the additional licences following the passage of this bill. Not only this, but the bill allows sporting clubs, of which a large proportion are home to under-age kids, to deliver alcohol. These businesses will require all the help and oversight possible to ensure compliance with these new conditions. Compliance is obviously going to be a huge issue after the passage of this bill, and I would certainly be following closely how this is proposed to be addressed by the government.
Not only does alcohol negatively impact upon family violence, but general assaults and sexual assaults are much more prevalent when we insert alcohol into the situation. There needs to be more accountability on the venues to take action against such offences and reports of offences. One way we could do this is a violent venues scheme similar to the one brought into New South Wales in 2008. This is where licensed premises are graded according to the number of alcohol-related violent incidents that may be experienced over a certain period. I envisage this could also include sexual incidents where they are reported to management. Venues with 12 or more incidents make the list, with those recording 18 or more incidents classed as level 1. Venues may then be subject to a set of special licence conditions depending on their classification. For example, for level 1 venues conditions include a mandatory 1.30 am lockout and no glass containers after midnight. Level 2 venues are subject to similar conditions but to a lesser degree, and level 3 venues are encouraged to develop or review their safety practices. Evaluations observed by Deakin University show that naming violent venues was associated with significant declines in assaults in and around licensed venues across New South Wales and improved licensee behaviour. The number of licensed premises on the New South Wales government violent venues list halved from 12 to six in the last six months of 2019.
Interestingly, the Salvation Army, the Victorian Alcohol and Drug Association, the Uniting Church and the Foundation for Alcohol Research and Education all wrote directly to the Premier in June two years ago to express their concerns about assaults in licensed venues, and they have proposed the scheme that I have mentioned. However, I welcome news from the minister’s office that they have started utilising a data-driven model where compliance officers and police will target areas or venues that have a high number of assaults or other incidents. This is great news.
If we look to New South Wales, they have just passed a similar bill to the one we see before us. However, their bill went much further in terms of safety, including providing a self-exclusion register. I will note here the Victorian bill does not even require delivery persons to have any type of responsible service of alcohol training, despite it being called upon universally. This is one of the amendments that Derryn Hinch’s Justice Party will be introducing, and we look forward to the government’s response on this. We will also be mirroring the New South Wales bill’s penalty on licensees if they financially penalise a delivery person, but I will speak to my amendments further in the committee stage.
In summary, the bill undoubtedly does some good things, specifically the definition of ‘harm’ which encompasses family violence. I think this is a great move. I am slightly pessimistic when it comes to enforcement of all these new rules, given the systemic issues which the VCGLR already has with regard to compliance by licensees. What is going to happen when we add 6500 new licences to the mix? More compliance? That is doubtful. Not that long ago, on 12 September actually, I watched a fascinating documentary on the ABC hosted by Shaun Micallef, as part of his On the Sauce program. During the show Mr Micallef stated, and I quote:
Figures suggest the easier it is to get alcohol, the harder it is to stem the flow of antisocial behaviour.
He went on to say, and I quote:
In Victoria a decade-long study found a link between domestic violence and the number of bottle shops in a neighbourhood. Basically, where there are more liquor outlets, the number of assaults rise.
These comments are a sound reflection of our concerns with this bill. This has been one of my longer contributions, but I think it just goes to show how serious our party is when it comes to family violence and alcohol-related crime. It has been disappointing speaking to organisations, who spent a lot of time in consultation with this bill, whose recommendations were completely ignored. It has been more disappointing speaking with those who had not seen the bill and yet are greatly affected by it. I hope the government will at least commit to the ministerial review that I am proposing so that in 18 months time we can see how this bill is really tracking.
Dr RATNAM (Northern Metropolitan) (17:18): I rise to speak on behalf of the Victorian Greens on the Liquor Control Reform Amendment Bill 2021. I will only speak briefly because I think other speakers have already well articulated all the main issues, as did my colleague in the other place the member for Brunswick. We are concerned the bill omits some important harm minimisation measures. The Victorian Greens consistently call for a harm minimisation approach as the best way to reduce the adverse health, social and economic consequences of drug and alcohol use, both for the individual and for the broader community. Therefore we do not support further prohibitions but rather some sensible laws to minimise the effects of excess alcohol consumption and alcohol-related violence on individuals, families and Victoria’s health system.
With the consumption of alcohol so normalised in our culture, we are always tempted to play down these issues or resort to overly naive binary notions that illegal drugs always equal bad while legal drugs equal good—that is, if our subconscious even classifies alcohol as a drug. This cognitive dissonance has led to disproportionate government resources and media focus on the sometimes sensationalist, largely futile war on dangerous illegal drugs while at the same time spruiking the social and economic benefits of alcohol, which by any social or economic measure does as much or more damage to Victoria as illegal drugs. The reality is that the negative health repercussions of alcohol abuse are at least statistically as bad as anything Victoria has experienced from COVID-19 to date and what we are trying so hard to avoid. Consider that every year in Victoria alone alcohol causes over 1200 deaths and every week, on average, over 750 hospitalisations. On numbers alone, this is comparable to the modelling of what we can expect from the worst peaks of COVID-19 that we are now confronting.
In fact we now know that the pandemic has led to higher numbers of alcohol-related emergencies and fatalities and more negative related social issues such as family violence. In this context I think it is very hard to consider all the sacrifices we are making to be able to live with COVID and not think that we should be making some very modest, sensible harm minimisation measures so we can also go on living with and enjoying alcohol.
The links between alcohol delivery and damage are not hypothetical. Recently the Sydney Morning Herald reported that the best-known online alcohol service is being investigated over the death of a Sydney man after delivering three bottles of wine to his home a day almost every day in the weeks before he died, including two identical orders that were placed within 10 minutes of each other. This service is operating in Victoria under far fewer harm reduction requirements even if this bill is passed. Therefore the Greens are proposing to strengthen two harm reduction measures in this bill to help mitigate under-age alcohol abuse and alcohol-fuelled family violence, which has escalated since the advent of rapid alcohol home delivery. I would like my amendments to be circulated now, please.
Greens amendments circulated by Dr RATNAM pursuant to standing orders.
Dr RATNAM: The bill proposes two protections against selling to minors whereby, one, a person trying to buy alcohol must tick a digital box to verify they are over 18 and, two, a delivery driver must be instructed to check a person’s ID when delivering. There is emerging evidence that alcohol home delivery services have led to higher rates of under-age drinking because these old types of verification measures have not been strengthened to recognise the growing market. Therefore my first amendment will require digital identification checks before an online alcohol sale can be made, effectively moving to update the proposed self-policing system. We have allowed 11 months for this to commence, which means Victoria’s system will come into effect at the same time as that of New South Wales, which has already committed to this reform in its liquor control law.
My second amendment aims to address the interrelationship between alcohol and family violence. We think that it is not enough for new liquor laws just to acknowledge that alcohol contributes to family violence without actually doing anything to try and limit this violence. This is especially the case when we are now experiencing a statewide emergency in terms of record levels of home-based violence at the very same time more and more alcohol is being delivered on demand directly to homes. Victim-survivors of family violence have asked that this bill set a minimum delay from the time alcohol is ordered to when it arrives on the doorstep. We think this is a pretty reasonable request because such a delay can allow a violent drinker in the house to sober up, pass out or leave the house rather than continuing to drink at home. It may allow time for family members to escape the home. There is no delay proposed in this bill, so the Greens’ second amendment requires that alcohol cannot be delivered to a person’s home less than 90 minutes after it was ordered. We have to be realistic and recognise that the protection provided by this amendment is not perfect, not least because it does not address the root cause of men’s violence in the home, but we think given the rising levels of alcohol-fuelled family violence, the relatively minor inconvenience imposed on people who cannot plan ahead of having to wait just over an hour for their alcohol to be delivered is by no means disproportionate.
I am aware that members of the crossbench have put a lot of work into trying to improve this bill, and I really want to thank them and the government for the open way that we have engaged on these issues, even if we do not always see things the same way. I look forward to the committee stage and an opportunity to look at this bill in more detail, because I really believe there is some scope to improve it by working together.
Mr QUILTY (Northern Victoria) (17:23): I will be brief. The Liberal Democrats support some measures in this bill, but the overall alcohol regulation regime is far from ideal and needs to be wound back a great deal. This bill does two sets of things. Firstly, it reduces red tape, though it does add some in as well. In aggregate it makes it easier for many companies to sell alcohol and formalises alcohol delivery regulations in a reasonable way. The bill makes a fair effort to prevent children accessing alcohol without ruining the point of alcohol delivery services. Services are required to check licences on the first order but not on every order after. Like most deliveries, if someone is not home, they can leave the delivery somewhere safe, but the recipient has to specify where it should be put. We are in favour of adults having access to alcohol as an adult choice, but we recognise that teenagers rarely have the life experience to make informed choices about drugs, and we support the balance this bill strikes between the freedom of adults and the protection of children. In other areas you can see that the industry voices were listened to and that some of the more egregious and pointless burdens have been removed. Governments generally have no idea how industry works and often make careless blunders in drafting regulations, so this is not a terrible job for once.
In other cases the regulations are not careless, they are just stupid. Certain areas of Victoria are still considered dry. Pubs are still banned as a relic of the temperance movement, and this bill removes these bans, so there are many positive aspects to the bill. However, the second set of changes are new burdens or a proliferation of the current ones. Many of the alcohol regulations are still too strict. They fail to treat adults as adults, and they aim to protect people from their own choices. The bill makes it more difficult to set up large liquor stores—stores that offer large ranges of stock and cheap prices. This is a pointless restriction that fails to learn from the errors of prohibition and temperance. There is no need for the government to tilt the rules against these stores. If people do not want these shops, they will not go there, and if they do want them, the government has no role in limiting them.
The bill also pushes condescending restrictions on advertising. You cannot use sex to sell beer in Victoria. We are far too sensitive for anything as vulgar or as working class as that. Particularly insulting are the clauses that allow the Minister for Consumer Affairs, Gaming and Liquor Regulation to ban certain advertising promotions, as though we need our government policing our propriety. This will of course be used to stifle speech that the government does not approve of. It is another demonstration that our major parties in this country do not support freedom of speech.
Unfortunately most of the worst aspects of the bill are merely clarifications of legislation that already exists. They do not change all that much, and that is the problem. We need a government that treats Victorians like adults. We will support the legislation, as the positives outweigh the negatives, but we hope for a less condescending approach to alcohol in the future.
Ms PATTEN (Northern Metropolitan) (17:27): I am not going to speak for long on this bill, because I think everybody has fully acquitted the legislation and there is no point repeating those words. I would like to focus on the amendments that I am proposing to this legislation, and they go to some comments that Mr Quilty just made in regard to some of the restrictions on advertising.
Fiona Patten’s Reason Party amendments circulated by Ms PATTEN pursuant to standing orders.
Ms PATTEN: My initial amendment deals with alcohol advertising, as I mentioned. It is the use of the word ‘sexual’ in relation to alcohol advertising, and it is the conflation again that somehow something that is sexual is automatically bad and that it is automatically dangerous. I think this is really unfortunate. Currently the legislation says that restaurants, businesses that sell liquor and liquor companies cannot use advertising or promotion that is directly or indirectly sexual, degrading or sexist. Now, I have no problem if you want to prohibit degrading and sexist advertising. That makes sense, and I am supportive of that; I think that is absolutely in line with community attitudes. But to prohibit an advertisement to an adult for an adult product because it may be directly or indirectly sexual? Now, for a start, what is ‘indirectly or directly sexual’? But why would we do that? The dictionary definition of ‘sexual’ is:
relating to the instincts, physiological processes, and activities connected with physical attraction or intimate physical contact between individuals.
‘Sexual’ can mean holding hands. It can mean a loving look. It could mean a candlelit dinner. It is the kind of expression that is a normal part of our lives. I mean, for goodness sake, none of us are here without sex. I know we do not like to think about it. But our parents did it, and that is why we are here. Alcohol may have been involved as well, but I am not going to go there. What I am just trying to get to is that sex is a normal part of our lives and that it is not by its nature bad or negative and to be prohibited. We do not prohibit sexual expression for films, for food, for fashion, for cars—for anything—for the climate. We do not prohibit the use of sexual expression. So why would we prohibit it for restaurants, bars and alcohol retailers? To suggest that sexual is negative again I think is out of step. As a feminist I find it kind of appalling that you would conflate ‘sexual’ with ‘sexist’ or ‘degrading’. We can be sexual without it being sexist or degrading, without it being appalling to us and without it denigrating anyone. We can have sexual advertising that is positive, that is life affirming, that is pro women and that is pro equality. I just think it is completely out of step, and that is why I have put up an amendment to simply remove the word ‘sexual’ from there so that the prohibition would be on advertising or promotion that is directly or indirectly degrading or sexist. I think that is a very simple amendment, particularly when you think, ‘What would be indirectly sexual?’. What would advertising that was indirectly sexual be? I am not sure.
Mr Ondarchie interjected.
Ms PATTEN: Like you, Mr Ondarchie, I am struggling. In fact I just find it a bit of an extraordinary overstep on our human rights. While I may not have the same passion as the freedom fighters out there in the rebel Parliament, I have been a campaigner for freedom of speech for probably more years than they have. As I said, I am fully supportive of a ban on degrading or sexist material, but the section as it is currently drafted just goes way too far. It would have a really perverse impact on those businesses that are licensed by the Victorian Commission for Gambling and Liquor Regulation to provide sexually explicit entertainment. So they have got a sexually explicit licence, but if this legislation goes through unamended they may not be able to advertise their business, because by their very nature they are sexual. Certainly limit advertising so it is not sexist or degrading, but really this would have a very chilling and censorial effect, and particularly when you think about the LGBTI community. That is about celebrating sexuality. One of my favourite late-night venues from when I was allowed to do this was Poof Doof. Excellent night—I can thoroughly recommend it. But would that be indirectly sexual? It may well be. I think it is certainly important that this amendment be successful. In fact I think the advertising prohibition would look a lot stronger if it was dealing with sexist or degrading material. That would actually send a very strong message there.
My second amendment goes to new section 109C and removes the requirement for a delivery person to refuse to deliver if the customer is at risk of becoming intoxicated. Now, we have heard from a number of the other speakers, and Mr Grimley in particular, about not even having responsible service of alcohol training embedded in there so that delivery drivers know how to not serve an intoxicated person. But how would you know how to not serve someone who is at risk of intoxication? We do not apply that to any other retailer of alcohol. We do not require restaurants and bars and bottle shops to not sell to a person if they think that person is at risk of intoxication. If someone orders a bottle of whisky and has it delivered to their home and they drink that whole bottle, they will get intoxicated—if it was me and I drank an eighth of that bottle, I would probably be intoxicated—so how on earth are we asking delivery drivers to make that assessment of someone, that ‘If I give you this bottle of whisky, you are at substantial risk of intoxication’. Well, yes, everyone would be at substantial risk of intoxication if they were to drink that bottle on that day. If someone orders a slab of beer, they are absolutely at risk of intoxication. Of course they may be sharing it with 15 friends, in which case they are probably not. Are we going to have to have a checklist: ‘How much of that are you planning to drink tonight? Are you sharing that with anyone? Have you had any other drinks prior to me delivering this’? We have already said you cannot deliver alcohol to someone who is intoxicated, but now to say, ‘You can’t deliver alcohol to someone who is at risk of getting intoxicated’, I mean, for goodness sake, how on earth can a delivery person understand that?
As I say, we have clear guidelines on how to judge if a person is intoxicated. That is how the rest of the act is structured, and I think this section should reflect that as well. If we do not ask the bottle shop to test whether someone is at risk of intoxication before they sell them a bottle of wine, why would we ask a delivery person to test that before they deliver a bottle of wine? This is just putting enormous responsibility on the delivery people, asking them to ascertain if someone is planning to get intoxicated—‘What are you doing tonight? Are you going to drink all of that?’. If there was some good reason why we should be asking this question, then it should have been throughout the bill. It should have applied to bottle shops, to restaurants, to bars—everywhere. So the bartender could ask you, ‘Are you planning to get intoxicated?’. Or when you go to the bottle shop and buy that bottle of whisky: ‘Are you going to drink that tonight or are you going to drink that over a week?’ or ‘How much are you going to drink?’. It is asking people to see into the future, and it is asking people to second-guess a customer’s motivations.
On that, I hope that the house can support my amendments. I think they are sensible. I had hoped that we could have moved the government to amend it themselves, but I am hopeful that the house will support these two, I think, very reasonable and very sensible, amendments to this bill.
Mr HAYES (Southern Metropolitan) (17:38): The COVID-19 pandemic has placed an extraordinary amount of pressure on communities for nearly two years now, and this follows on from a horrific bushfire season—devastating bushfires. Mental health problems are on the rise, with increased stress, anxiety, depression and loneliness. Reports of increasing incidences of domestic violence during these lockdowns have emerged and there are more and more frequent presentations of intentional self-harm. Concerns have been raised by the Alcohol and Drug Foundation, who believe that changes in alcohol consumption during these lockdowns may persist longer term. We know that increased alcohol dependency can lead to mental health issues, unemployment, financial insecurity, homelessness and stress.
Prior to the pandemic alcohol and drugs imposed a significant health burden on the community, with the Alcohol and Drug Foundation estimating that over 6000 deaths in Australia per year were caused by alcohol and drugs. That is one person dying every 90 minutes. Hospitalisations attributable to alcohol averaged about 400 people per day in Australia. Since the pandemic services such as Alcoholics Anonymous have seen a substantial rise in calls, and there is a huge backlog for detox and treatment services in Victoria. One of the state’s biggest residential withdrawal clinics, Uniting ReGen in Ivanhoe, currently has about 90 people waiting up to two months to access their services. Odyssey House has almost 300 people waiting between six weeks and three months to get in.
There seems to be a broad acceptance of alcohol intoxication as normal in social situations. According to VicHealth, two-thirds of young Victorians report drinking at levels that put them at risk, over half believe getting drunk every now and then is not a problem and a third of them think that it is okay to drink to get drunk. The Foundation for Alcohol Research and Education, FARE, conducted a 2020 poll which reported 70 per cent of respondents were drinking more alcohol than usual and 34 per cent were drinking alcohol daily. The most common responses to why people were drinking more were boredom and stress.
On the retail side, across the board retailers are reporting alcohol sales at record levels. In the year 2020 nine websites evaluated by FARE had an estimated increase of 34 per cent in traffic, and none of them used online age verification. We have Woolworths reporting alcohol sales growth of 180 per cent, increasing specials, targeting markets and more new companies appearing out of the blue providing almost instant delivery, like Jimmy Brings, which promises delivery of cold wine, beer and spirits in 30 minutes. There is no doubt that the addition of these new companies to an already large market has accelerated the risks and harms associated with online sales of alcohol. I was going to mention the case Dr Ratnam raised of the Sydney man who recently died after spending $24 000 over three years on 300 online orders.
There are reports of unregulated advertising on social media aimed at at-risk drinkers. People who make inquiries about alcohol get bombarded on sites such as Facebook and Instagram. According to some recent FARE findings, in 1 hour on a Friday night 107 sponsored alcohol advertisements were displayed on a particular Facebook and Instagram account. This equates to approximately one alcohol advertisement every 35 seconds. Six marketing message categories were identified, including ‘easy access to alcohol without leaving your home’, ‘drink alcohol during the COVID-19 pandemic’, ‘save money’, ‘buy more’ and ‘use alcohol to cope’. Two-thirds of the alcohol advertisements had a ‘shop now’ or ‘get offer’ button linking them directly to their online stores. Alcohol advertisements sometimes appeared beside government campaign ads targeting those who are struggling with addiction. It is quite appalling. I cannot see anything positive about these targeted and contradictory messages.
It is in this environment, amid surging online sales and community-related issues, that the state government has introduced this bill, which aims to minimise harm from alcohol while simultaneously and somewhat perversely reducing restrictions on the home delivery of alcohol. Whilst I do believe there are good aspects to this bill and it does aim to make some substantial changes by introducing some alcohol delivery regulation, I do not think the bill goes nearly far enough to regulate what is an out-of-control industry. I believe this bill has the potential to put more people at risk by making alcohol more accessible rather than less. If young people and their families can order alcohol online every 20 minutes, then it is a problem. If a person can order a bottle of wine and half a dozen tinnies delivered with every order of dim sims or a Big Mac, then I do not think this achieves the government’s aims. The minister said that it is vital that this bill achieves an appropriate balance to minimise harm, but this bill seems to increase the risk for vulnerable people. A survey of more than 1000 Victorians found that more than half of weekly users reported being intoxicated when they received their online orders, and almost a quarter of the 18- to 24-year-olds surveyed who use such services were either not checked for ID or did not receive their order personally.
The minister says this bill will address these issues by making delivery drivers responsible for the management of these aspects of compliance, but how does the minister expect an Uber driver to have the skills to decide if someone is intoxicated? And has the minister considered the safety concerns if the driver refuses delivery? How many people here would like to be in the position of refusing the delivery of a few cases to a crowd of intoxicated people at night hanging out for their booze? It is not appropriate for delivery drivers, who are often paid per delivery, to start deciding whether they should deliver or not. For them it is an obvious conflict of interest. Will delivery drivers be paid if they decide not to deliver alcohol in compliance with the act? We would be expecting them to have the skills of a police officer by asking them to verify fake IDs and potentially identify if someone is using another person’s ID and expecting them to potentially have contact with COVID-lockdown households—maybe not so much now. How much will they take all this into consideration when drivers average less than $10 an hour? And are delivery drivers even required to do an appropriate training course at the moment, like the responsible service of alcohol course? I think the government is expecting far too much from drivers in an already unregulated delivery industry.
I support Alcohol Change Vic, who are calling for deliveries to be restricted to between the hours of 10.00 am and 10.00 pm to reduce the risks of family violence. There is a lot of evidence that shows that alcohol harm particularly occurs late at night. I do not support late-night and short-turnaround deliveries. There needs to be a mandatory 2-hour delay between ordering and delivery, particularly at night, and I would like to see mandatory proof of age on order and identification on delivery.
The government also needs to put more detail into this bill, including a provision for a self-exclusion registry and mandating for licensees to keep records of refusal. We have already seen the seeds of addiction increasing during these lockdowns, and I would hate to see the government prioritising the liquor industry over what is best for the health of our community. The World Health Organization recommends that governments restrict alcohol advertising as a way to minimise alcohol harm, yet our government permits alcohol companies to basically self-regulate. There is no evidence that the self-regulatory scheme that is being proposed here will be at all effective in protecting vulnerable groups from exposure to alcohol. Self-regulation does not work, and I feel there is a clear conflict of interest arising from the industry’s business imperative to sell more and more alcohol. This is particularly problematic at a time when secondary health and social impacts from the recent pandemic lockdowns have arisen. I will not be supporting this bill in its current form.
Dr CUMMING (Western Metropolitan) (17:48): I rise to speak on the Liquor Control Reform Amendment Bill 2021. This bill aims to make amendments to the existing act to reduce the red tape, to modernise the laws and, according to the explanatory memorandum, to ensure the effectiveness of the act’s harm minimisation measures. Now, I certainly support cutting red tape. I think this bill has gone a bit too far. I think it makes it far too easy for alcohol to be actually home delivered.
We have to remember the role that alcohol plays in domestic violence. A study from La Trobe University estimated that alcohol is involved in up to half of partner violence in Australia and up to nearly three-quarters of partner physical assaults. There has been a steady rise in alcohol-related family violence incidents in Victoria due to the lockdown—the six lockdowns. Given that only the most severe cases are reported to police and only one-third of domestic violence is reported, these figures do not really show the full extent of the problem.
There has been a lot of debate about alcohol’s role in domestic violence. While there are a lot of factors, we do know that the risk of violence increases when alcohol is involved and that the injuries are more severe. Almost half of intimate partner homicides are alcohol related. Children are affected by witnessing domestic violence, and alcohol also increases the risk of children being abused, neglected and emotionally damaged. Studies have also shown that heavy and binge drinking increases the likelihood of violence. Unfortunately this pattern is also seen in younger people.
The bill would allow someone to be refused service at a bar, but then they go home and get alcohol delivered and they can continue drinking. How is this minimising harm? Staff selling, offering or serving alcohol in a venue have to undergo responsible service of alcohol training—which I have done in my past; I have a certificate at home with the rest of my resume—to contribute to, according to the Victorian Commission for Gambling and Liquor Regulation website, ‘a safe and enjoyable environment’. Yet here we have staff with no responsible service of alcohol training delivering alcohol straight to your door, and they are doing no welfare checks at that particular time. They are not checking if they are intoxicated. They are not checking what is actually going on behind those closed doors. There is no checking possible of if there is an ‘enjoyable environment’.
Firstly, I think that all staff involved in alcohol delivery should undergo responsible service of alcohol training, even if it is a shortened course or a condensed course. They must be able to do the responsible service of alcohol training so they can understand the signs when they are at that door. Why I say this, as somebody who has got—I do not know if it is still valid—my responsible service of alcohol certificate, as well as having held a liquor licence in my lifetime, as well as having had my security licence when I worked on doors at nightclubs and worked in bars and cafes and served alcohol in my own venues, is there is a big responsibility when you are profiting off alcohol. As a licensee or someone who is selling alcohol you should take on some responsibility to make sure that they are okay.
Next, I believe that there should be a requirement for delivery services to check both the age and the identity of the purchaser for each and every delivery. You would do that at a bar. You would do that if someone walked into a licensed venue. You would, as they say in America, card them, or check their ID. Any establishment that has a liquor licence is required by law to show those little posters at their door, and they take on the responsibility with that liquor licence to make sure that anyone that goes in there is actually of age. So you would expect that if you are going to be going to someone else’s door with alcohol that should be a requirement. According to this bill there is nothing stopping anyone from ordering alcohol to their home, and then, without their knowledge, their under-age children could order alcohol from the same service—my children jump on my app for Menulog sometimes, to my disgust—and have it delivered. They are young, and they are very tech savvy.
It is also opening up delivery service drivers to abuse—physical and verbal abuse—by customers who are refused service. Normally delivery drivers are just by themselves. If you are at a licensed venue, there are cameras, there is passive surveillance by more people, and even if you go to Coles or you go to your local IGA or Yarraville Vintage Cellars or the little places in Williamstown or anywhere in the Western Metropolitan areas—all the little, little bottle shops—they have cameras, they check ID. It is simple. It also opens up those drivers to abuse, because they are normally there by themselves. And we need to make sure that the drivers can actually ID who they are handing over that alcohol to, because there might not be any CCTV. Let us also remember that we have been in lockdown for 220 days today, or 221—
Mr Finn interjected.
Dr CUMMING: 360? 262? I cannot keep up. I have got that mental fatigue that everyone else in the community has. They cannot keep up with the directions that the government are making on the website every couple of hours. They cannot keep up with what day of the week it is. They just cannot keep up for the mental fatigue from all the lockdowns that we have had, rather than looking at other alternatives such as rapid testing and other things that this government could actually have done for us to not have been the most locked down in the world.
Regional health workers have seen an increase in people reaching out for help, and the Australian Institute of Health and Welfare found that one in five people said that they had increased their alcohol use during COVID—well, der, Freddie, seeing that that was considered an essential service during a health crisis. That is how you deal with a pandemic, a health crisis, isn’t it? You make sure that everyone is eating doughnuts and they can get McDonald’s or they can get alcohol. That is how we deal with a pandemic here in Victoria. Even children as young as 10 have received treatment for alcohol use. This is because they are sitting down, locked down. And there has also been an increase in accidents in children and accidents at home because of these multiple—what is it, six—lockdowns. What did you say, Mr Finn? 260 days and counting. Yes, so there are a lot of teenagers that have been coping through lockdown by sneaking into their parents’ liquor or alcohol at home. It has been a thing that other parents have reported to me. They go to their liquor cabinet and there is the big bottle of Jim Beam that has actually been reduced, and they have got a little line. This is due to these lockdowns.
While individuals have to make their own healthy choices, we have a duty to minimise self-harm and the abuse when we can legislate to do so. This bill may have started with the best intentions, like a lot of what the government tries to do—their best intentions with a bill—but they have lost their way along the way. I hope that this government actually looks at the amendments that have been proposed and supports the amendments. Why do I say that? Because I do not believe that this government has got any legislation that they have put before us 100 per cent correct. I believe that they actually should listen to the other members of Parliament that have amendments that could improve the bill and take them on rather than having this arrogant attitude that they do not accept amendments because they have always got it right.
We will be debating in the committee stage the amendments that are proposed by, I am pretty sure, Derryn Hinch’s Justice Party and others here on the crossbench, because the non-government members read the bills thoroughly and they bring up very good amendments and spend a lot of time on those amendments. You would hope that the government looks at those amendments and takes them into consideration and accepts those amendments rather than dismissing them by getting the numbers, grabbing a couple from the non-government side and squashing some really great amendments and great intentions to make sure that this bill is improved for future generations. I look forward to the committee stage.
Mr LEANE (Eastern Metropolitan—Minister for Local Government, Minister for Suburban Development, Minister for Veterans) (18:00): I thank everyone for their contributions. I might just concentrate on putting on the record our position on the different amendments, and I thank everyone for their amendments. The opposition is proposing two amendments. Firstly, the opposition want us to overturn our election commitment to abolish the outdated dry area polls in parts of Melbourne. I think this is a relic from 1920. It even involves people that do not actually return their polls getting fined quite a bit of money—$81 if you do not take part in the poll. As I said, it is a Labor commitment that we took—there are restaurants in those areas that I think should not have to go through a different process to every other part of Melbourne.
The second amendment sought is to restrict online vendors being able to apply to the Victorian Commission for Gambling and Liquor Regulation for approval to trade on Christmas Day and Good Friday. It is just going to create inconsistencies with other packaged liquor licensees. Currently all packaged liquor licensees cannot trade on these days unless they have successfully applied through the VCGLR, and this simply gives those with the ability to deliver, often the same stores, the ability to do the same. I am sure we will hear from them about their amendment, but we do not really understand why we would put online vendors at a disadvantage compared to their counterparts in the sector.
Mr Grimley via Derryn Hinch’s Justice Party (DHJP) has composed five amendments, including requiring licensees to keep records where liquor is not delivered because doing so would contravene the act, such as delivery to people at risk of intoxication or under 18 years old. We have taken on board Mr Grimley’s concern and have agreed to look at ways to incorporate such record keeping into the regulations.
Mr Grimley also has proposed a review of the operation of the ‘Licence conditions—supply of liquor through online orders’—18C—after 18 months and tabling of the outcomes of the review in the Parliament. We have concluded that this is unnecessary and that the Department of Justice and Community Safety and the Department of Health will work together to monitor the social impacts of the online delivery reforms and other further evidence of associated harms. This will be concluded over an 18-month period post the implementation of a report and will be provided to the Liquor Control Advisory Council, which advises the minister. This is the most effective, usual way of properly informing the minister and government about the impact of these reforms, including the benefits to small business.
Mr Grimley also proposes that the definition of ‘large packaged liquor outlet’ be changed from 750 square metres to 400 square metres. It is important to remember that the Victorian Commission for Gambling and Liquor Regulation must consider harm in assessing all liquor licence applications, and a new definition of ‘harm’ in the bill will apply to all liquor licence applications. Big-box packaged liquor outlets tend to be above 750 square metres, many of them actually well above 750 square metres, so those big-box liquor outlets will definitely fall into that 750 square metres category. The larger the packaged liquor premises, the larger the geographical trading area and impact on the community. That is why these applications will be required to undertake community impact assessments. The community impact assessment requirement is a relatively costly process and will be more costly to those large stores. However, this is in relation to the volume of alcohol sold at such outlets and the potential for harm that can result in the supply to local communities, including harm such as family violence. We do not want to burden the smaller packaged liquor businesses with undue costs that might make these startups unviable before they begin.
The last two amendments proposed by Mr Grimley and the DHJP relate to penalties, especially penalties for licensees or contracted delivery agents who fail to ensure a delivery driver has undertaken a responsible service of alcohol program and penalties for licensees who financially penalise a delivery person for not delivering liquor in compliance with the act. I think we have all agreed that we do not want to see delivery drivers, whether they are employed by a large liquor supplier or in a contractual arrangement delivering small amounts of alcohol along with a meal, being exposed to any unreasonable behaviours or penalties for just doing their job. Nor do we want to discriminate against the cafes and restaurants that rely on contractual arrangements with agencies to get their produce to the front door.
The Retail Drinks Australia online code of conduct is the industry code. It already requires that delivery agents must be provided with the appropriate training. There are existing practices in place to support delivery drivers that deliver alcohol. The industry code of conduct already requires drivers not to deliver to an intoxicated person, and it is already an offence to deliver to a minor. The industry code also requires delivery drivers to receive training and for delivery providers to have a number of systems in place to support the drivers. This includes live support chat functions in a delivery app and assurances that a driver will be compensated for returning an order that cannot be delivered in circumstances of concern.
Fiona Patten’s Reason Party has proposed an amendment to remove the term ‘sexual’ from prohibited advertising. While I understand Ms Patten is concerned with the application of this prohibition, in the absence of any issues arising from the current VCGLR guidelines, which include similar prohibitions, it is very unlikely there will be any impact on the existing practices that have not been banned. This prohibition is really about codifying existing requirements in legislation. I understand Ms Patten has a second amendment, which we will deal with during the committee stage.
I understand Mr Barton has very similar amendments around the concerns of the delivery drivers and their welfare and interests. We should not be surprised that Mr Barton has those concerns, but I think they are very similar to the amendments that Mr Grimley and the DHJP have in their amendments, which we will deal with in time.
Further to the concern around Ms Patten’s advertising amendment, there was support all the way through the submission process to ban advertising and promotions that encourage the irresponsible consumption of alcohol and to ban advertising that disrespects and objectifies women. This was also strongly supported in more recent briefings provided to the community and to health stakeholders. We made a commitment to take the current code and put it into legislation, as it sends a strong signal. We will therefore continue to support the current position and will not support the amendment as put. I should note for the house other jurisdictions have bans on sexual and degrading advertising and promotion.
I understand that some members have concerns regarding the online delivery component of the bill. I understand there has been detailed engagement on the issue, particularly with Mr Grimley and his staff. I would like to confirm there will be a ministerial statement brought back to the house 12 months after the commencement date to provide more detail on the new licensing conditions. This will include an assessment of the take-up and activity of this licence condition as well as harm, particularly as to whether this section of the bill achieves the objectives of the act. This statement will include data from records that licensees will be required to keep as stipulated in a ministerial direction, which will include: deliveries returned if recipient is under age; deliveries returned if recipient is intoxicated; deliveries returned if the address is unattended; deliveries returned if recipient is not the person who placed the order for a first-time order; and deliveries returned for any other reason. This will be provided as a public and transparent report to this place on the impacts of this section of the proposed legislation. I very much look forward to the committee stage.
Motion agreed to.
Read second time.
Committed.
Committee
Clause 1 (18:12)
Mr ONDARCHIE: Minister, one of the concerns that I raised in my second-reading speech was about the regulatory impact statement that has been completed, but in order to process this bill effectively we would like to know what was in the RIS and what were some of the directions and outcomes that came as a result.
Mr LEANE: Mr Ondarchie, I think we might be at cross-purposes insofar as a legislative impact assessment had to be developed but not a RIS. A legislative impact assessment comes under cabinet in confidence.
Mr ONDARCHIE: It is disappointing, therefore, that the impact of this bill on industry and on communities cannot be relayed to the chamber in light of them being able to make some appropriate decisions. I am unclear about what would be so confidential, other than the financial aspects of the legislative impact statement, that you would not be able to tell the chamber.
Mr LEANE: This is standard practice in forming legislation of this kind. It is a legislation impact assessment, and it is a standard practice in developing many pieces of legislation in this area. These particular assessments will be cabinet in confidence.
Mr ONDARCHIE: Minister, in clause 1 we talk, particularly in the clause notes, about the emphasis on abolishing dry areas. Could you explain to the chamber what consultation the minister who is responsible for this bill, or indeed the department, have had with the cities of Boroondara and Whitehorse?
Mr LEANE: I will just check. Mr Ondarchie, there was consultation with both of those councils, with the senior leadership of those councils, and the only concern that was drawn out by the council’s side was that the local community would continue to have consultation during the licensing process, and they will have that through the council as far as the existing arrangements go.
Mr ONDARCHIE: Minister, I do understand then that there has been some discussion with the municipalities. Was there any process undertaken, given this is such a step change from what have been long-time established dry zones in those two cities, with the community in any way?
Mr LEANE: There was no surprise that a newly elected Andrews government would abolish these dry zones. So there was consultation before the election, and the election delivered a returned Andrews government. Just bear with me; I will go to the dry zones.
Since 2004 there has been an amazing amount—dozens—of applications for licences to be granted in these two particular areas, and the majority of them were granted via the polling system. And as I mentioned in my second-reading speech, if you did not adhere to the poll—if you did not care or you did not get around to actually replying to the poll as an individual—you would receive a fine.
I have got the figures here. There have been 56 dry-area polls conducted since 2004. The cost of those polls was nearly $500 000 and they resulted in a clear majority. It is here; I think it might have been one application that resulted in a vote to refuse a licence. The residents who did not vote in these polls were subjected to an $81 fine for not voting, and if they did not pay, they would get a $25 reminder added to the actual fine. So as I said in my second-reading response, I mean, these areas were created in 1920. I think the proof has been that, since needing to make an application and having to use the poll, the majority of the applications via the poll were approved anyway.
Mr ONDARCHIE: Minister, I will come back to dry zones in a moment. But firstly, why was a RIS not undertaken?
Mr LEANE: Because, Mr Ondarchie, we were not making regulations, we were making legislation, and that is why the legislative instrument that I mentioned before was produced. But can I say that when the regulations for this bill are formed of course there will have to be a RIS, and within that RIS the draft regulations will have to be made public. So they will be transparent to members of the public, the draft regulations, and there will be opportunity for comment and a lot of consultation before the RIS is even made public.
Dr CUMMING: Minister, in reference to the abolishing of dry zones, how are local governments meant to regulate a particular area that is a problem? I will give you an example, Minister. When I was on Maribyrnong City Council we had a mall. We had people who would bring a slab of beer to the mall and drink all day.
Mr Hayes interjected.
Dr CUMMING: Two slabs, hundreds of slabs. They would turn up at 10 o’clock in the morning and they would leave at 10 o’clock at night. The poor traders in the Footscray mall would have to actually put up with people going into their stores, stealing and going off. So Maribyrnong City Council decided to make the mall a dry zone—not the whole, just the Footscray CBD. We had so many vacant shops at that particular time due to people with substance abuse bringing in slabs of beer and stealing from all the little traders, to a point where they actually could not trade anymore—vacant shops. It actually looked like the Footscray CBD does now due to this lockdown.
Within the Local Government Act 2020 local councils are able to make up their own local laws to actually deal with the situation. Otherwise what would be happening is you would be calling the police non-stop. The police are not going to continually respond to somebody stealing or making a nuisance of themselves due to alcohol; they have other issues and pressing priorities. But by making that dry zone, it actually allowed the traders to get back on their feet and it stopped all of the vacancies in that particular area. Maribyrnong City Council actually put up CCTV. They actually had to find the money themselves because the state government would not help them.
Mr Barton: Is there a question coming?
Dr CUMMING: The question is: why aren’t you allowing these councils to have the right under their local laws and the autonomy to pick the zones that are problems?
Mr LEANE: This particular bill does not change any provisions as far as the Local Government Act goes. It does not amend the Local Government Act. Where we talk about dry zones we are talking about two historical dry zones that cover two complete local government areas that historically were actually dry zones. As in my answer to Mr Ondarchie, there have been applications in dry zones which have been actually supported by expensive polls, and people have actually been fined if they did not include themselves in voting in the poll. So this bill does not change the Local Government Act.
Dr CUMMING: The Local Government Act and the councils being able to make their own local laws—
Mr LEANE: That is not a provision in this bill.
Dr CUMMING: No, it is not a provision in this bill. It is very clear in this bill that you are abolishing all dry zones. It does not—
Mr LEANE: It talks about two. It actually nominates two. It talks about two councils.
The DEPUTY PRESIDENT: Dr Cumming, I think this is outside the scope of the bill because this bill very specifically names the dry zones that are being abolished, and the one that you are questioning the minister on is not within the scope of the bill.
Dr CUMMING: I just want to thank the minister for his response.
Mr ONDARCHIE: I have a line of questioning that I wish to pursue with the minister and then look to move amendments under clause 1, but given the time and the indication that has been made to the chamber, I am happy to pause on that if you want to go into a moment of cleansing of the chamber and resume straight after.
Business interrupted pursuant to sessional orders.
Ms TAYLOR: I move:
That the 60-minute meal break scheduled for this day, pursuant to sessional order 1, be altered to 15 minutes.
Motion agreed to.
Sitting suspended 6.28 pm until 6.47 pm.
Mr ONDARCHIE: At this time I would like to move amendment 1 standing in my name, which relates to clause 1(e) and is about omitting paragraph (e), which talks about abolishing restrictions relating to the granting of liquor licences in dry areas. I move:
1. Clause 1, page 2, lines 15 and 16, omit all words and expressions on those lines.
In speaking to that I have a view, apropos of the minister’s response to me, that whilst they consulted with the City of Boroondara and the City of Whitehorse they did not necessarily consult on a wider basis with the residents of those two cities, because—if I can paraphrase the minister’s response to me—‘We talked about this before the election, so they sort of knew that this was going to happen’. Now, I suspect that they did know this was the commitment by the Andrews government, but they did not vote for it, because the political results in those seats that were affected in the City of Whitehorse and the City of Boroondara do not in fact reflect the fact that they supported the government’s view on that. So I am moving that amendment standing in my name.
Mr HAYES: I would just like to say on this that it does cover part of my electorate and I am concerned about the removal of the dry zones there without any plebiscite or consultation with the people. Just because the state of Victoria voted by majority for a Labor government does not mean that that should mean that the dry zones in these particular areas should be removed or that the government has popular support in these areas, as Mr Ondarchie pointed out. And just because they have been dry zones since 1920 does not mean that this should no longer apply—just because it has applied for a long time. In actual fact people might well choose to live in these areas because they are dry zones, so I really think it needs to go to the people. Admittedly there is the poll system and the fines might be high, but that could be changed by legislation rather than by abolishing the dry zones themselves. So I will support Mr Ondarchie’s amendment on this and urge others to do so too.
Mr DAVIS: I want to make a number of comments about this bill but particularly about the clauses that seek to remove the dry zone. As a person who has represented this area of Melbourne for more than a quarter of a century, it is actually a considerable concern to see this bill here tearing away the rights and position of local communities. I and Ms Crozier and Mr Smith in the other place have surveyed our community very closely on this. I received more than 900 replies—written, detailed replies, some electronic as well—and what I can tell you is that 90.4 per cent of those who responded to the surveys were clearly and unequivocally against the change. It is worth people understanding the significant concern in that area:
I do not want late night liquor licenses for pubs or nightclubs in my suburbs. Licensed restaurants are pleasant, no nightclubs, late night liquor and definitely no pokies …
said B Oliver in Glen Iris. And:
Any further extensions … would only result in anti-social behaviour …
And on it goes:
Keep our suburb a dry zone …
another resident said. And:
A desirable feature of Boroondara & Whitehorse is their lack of late night liquor trading establishments …
said someone in Yeovil Road, Glen Iris. And:
Abolishing the dry zone will change forever the character and desirability of our suburbs. The residents have neither asked for, nor do we want any changes to our dry zone and we emphatically oppose any changes to the liquor laws …
said another respondent. And:
I wasn’t aware. Thank you. The proposal would have a disastrous adverse impact on Ashburton …
said F Walker in Ashburton. I could go on. There are just hundreds of these. People’s responses are very clear. Michael in Glen Iris says:
The Dry Zone is the very reason I have lived here in Glen Iris for 43 years and have no intention of moving because of the very nature of this area.
People love the area. They do not want this change. Make no mistake: if this change is passed, it will be imposing this on the area, it will be a decision that is not in the interests of the people in the area and it will be a change that is very much made against the overwhelming view and will of people in the area. As I say, I have represented the area for a long time. I have seen the changes with licences in a few spots coming through as people have held polls. I remember when all polls were rejected completely. That is not the case now. People look at these more closely.
I actually see nothing wrong with some direct democracy. Now, I know some people do not like direct democracy, and I was struck by the very discordant commentary in the other place of Mr Fowles, who went on. He was against direct deliberative democracy, and I must say I firmly disagree with him. He tried to make out that this had something to do with COVID-19. No, this is a government decision that it is pushing through with something it said at the election, but it is not in the interests of or is not supported by those particular areas. It is unfortunate, and I am saddened that neither he nor Mr Kennedy nor indeed Mr Hamer in the other place have been prepared to stand up for their local area. Mr Kennedy said that the dry areas are ‘relics from another age’:
No vote is currently required for BYO permits or restaurant and cafe licences.
He goes on. He is unhappy. He thinks it is a fear campaign that I have written to my community. He attacks me and Ms Crozier. All of this is completely beside the point. The truth of the matter is that the community has a very strong view, and we are reflecting our community and the Labor members in the lower house are not. They have deserted their electorates. They have taken a set of decisions here. They are toadies to the Premier, they are toadies to the position of their electorates—
Members interjecting.
Mr DAVIS: I withdraw. All right, I am happy to withdraw that they are, you know, whatever. But my point very clearly is that it will change the character of the area. People do have a right to move into that area and to actually enjoy the zone, and they have been able to protect that until now. If this bill is passed it will, I am afraid, change the nature of our area—Surrey Hills, Ashburton and parts of Box Hill—forever. The old dry zones of Camberwell and Box Hill, which were so precious and so very much respected by people—
A member: Mont Albert.
Mr DAVIS: Mont Albert indeed—all of these areas. I for one make the point that this is not more democracy, it is less democracy. There is nothing wrong with the system that is there. It has been there for nearly 100 years; 1920 was the year that it came in. Almost 100 years is a very long period for an area to have a particular mechanism, and there is no reason to change it. So I say an arrogant Premier is again overriding local communities, again doing things against the interests of what people want at a local community level. I am particularly disappointed in those three lower house Labor members.
Mr LEANE: The government will be opposing Mr Ondarchie’s amendment, for the reasons that I have put on the record. I understand there may be some people who are not happy with this change, but there are a number of other people who are happy with this change, particularly restaurants; I do not believe they should be treated any differently to any other restaurant in Melbourne in the way they operate. We respect that some people may not appreciate this change, but particularly a lot of residents will, and a lot of restaurateurs who believe they should be treated the same as everyone else will as well.
The DEPUTY PRESIDENT: The question is that Mr Ondarchie’s amendment 1, which is a test for his amendments 2, 5, 6 and 8, be agreed to.
Committee divided on amendment:
| Ayes, 12 | ||
| Bach, Dr | Cumming, Dr | Lovell, Ms |
| Barton, Mr | Davis, Mr | McArthur, Mrs |
| Bath, Ms | Finn, Mr | Meddick, Mr |
| Crozier, Ms | Hayes, Mr | Ondarchie, Mr |
| Noes, 20 | ||
| Bourman, Mr | Melhem, Mr | Tarlamis, Mr |
| Elasmar, Mr | Patten, Ms | Taylor, Ms |
| Erdogan, Mr | Pulford, Ms | Terpstra, Ms |
| Grimley, Mr | Ratnam, Dr | Tierney, Ms |
| Kieu, Dr | Shing, Ms | Vaghela, Ms |
| Leane, Mr | Stitt, Ms | Watt, Ms |
| Maxwell, Ms | Symes, Ms | |
Amendment negatived.
Dr RATNAM: Minister, I just have a few questions on clause 1. Recommendation 93 of the Royal Commission into Family Violence required the government to conduct the review of the Liquor Control Reform Act that has informed this bill with people who have expertise in the interrelationship between family violence and alcohol use. Could you please summarise for us how this consultation was undertaken and how the feedback is reflected specifically in what we see in this bill today?
The DEPUTY PRESIDENT: Can we have some quiet in the chamber, please? Dr Ratnam, would you like to repeat that so the minister can hear.
Dr RATNAM: Certainly, no problem at all. Minister, recommendation 93 of the royal commission requires the government to conduct the review of the Liquor Control Reform Act that has informed this bill with people who have expertise in the interrelationship between family violence and alcohol use. Could you summarise for us how this consultation was undertaken and how the feedback is reflected in the bill we see today?
Mr LEANE: Dr Ratnam, consultation was through family violence advocacy groups, women’s groups, academics, health services groups—in terms of health services as well—and other groups for consultation. What has been applied in this bill out of those discussions is particularly the definition of ‘family violence’ and the definition of ‘harm’, and also, focus around some of the liquor delivery being not past 11 o’clock and a number of other recommendations from those discussions which have been embraced in this bill.
Dr RATNAM: Minister, just one more question. I am aware that the family violence victim-survivors and experts wanted to see a sobering-up period—that is, a delay from the time alcohol was ordered to the time it could be delivered be included in this bill. Can you confirm, Minister, why this type of reform was not included in this bill in any form?
Mr LEANE: I can say, Dr Ratnam, that this consideration defeated the purpose of restaurants being able to package, say, a bottle of wine or a limited number of small bottles of beer or cans of beer, if you want to use that terminology, when ordered with a meal. So if the alcohol delivery was two hours behind the meal, common sense says it just defeated the bill’s purpose.
Mr GRIMLEY: Minister, I have got a couple of short, sharp questions here that I expect you will probably answer straightaway without consulting anybody. The first one is: how many liquor licence compliance officers does Victoria have through the Victorian Commission for Gambling and Liquor Regulation (VCGLR) for liquor compliance?
Mr LEANE: Mr Grimley, I think you have overestimated me, so I will go and seek advice. I do not have an exact number for you in terms of the officers the regulator has, but I am more than prepared to get that on notice for you. I just want to put on the record too that Victoria Police (VicPol) can do the inspections as well.
Mr GRIMLEY: Thanks, Minister. What plans does the government have to fund additional compliance officers, given the passage of this bill will result in thousands of new liquor licences?
Mr LEANE: Mr Grimley, the government and the regulator will monitor compliance and make a decision from there whether additional resources, officers, will be needed, and if so how many.
Mr GRIMLEY: Thank you, Minister. How many additional liquor licences—for example, online delivery licences for cafes and restaurants—is it envisaged will be created through the passage of this bill?
Mr LEANE: Mr Grimley, currently these enterprises have to have two licences, and one of them is for the online delivery. It will all be encompassed in one licence, so I expect that there will be less licences.
Mr BARTON: Minister, the government has put a lot of responsibility on a group of workers. Has the government spoken to any organisational entities that supply these services and addressed what risks there could possibly be for these drivers and riders?
Mr LEANE: Mr Barton, would you be able to detail the types or names of those organisations that you mentioned—the representative groups?
Mr BARTON: One comes to mind: that San Francisco taxi company. I think they call themselves Uber.
A member interjected.
Mr BARTON: Never heard of them? DiDi, 13CABS.
Mr LEANE: Yes, okay. Got you. I will get back to you.
Thank you, Mr Barton. There has been broad consultation with a lot of stakeholders and also other jurisdictions that are ahead of us in these particular sorts of initiatives. It encompassed conversations with them on their jurisdictions’ initiatives as well.
Mr BARTON: Thank you, Minister. Some people more cynical than I suggest that maybe Uber has approached the government to help drive this to develop a client base. Can you confirm that?
Mr LEANE: Actually, the information that I received from the box before was that Uber had not been consulted.
Mr BARTON: Thank you, Minister. Among my many talents I am a licensed commercial passenger vehicle driver, and I have a set of licence conditions. Those licence conditions spell out what I can and what I cannot do. How does this bill fit with my licence conditions? For instance, I might say that I will deliver a slab at 1 o’clock in the morning to someone. And I would challenge you when you say to me, ‘You can’t do that’. I would say, ‘Well, where is it in my licence conditions?’. Could you clarify that?
Mr LEANE: I would say, Mr Barton, your licence conditions aside, you would be breaking the new legislation if this bill is carried.
Mr BARTON: I find it really difficult to understand how a government could just make deputy sheriffs of some of the lowest paid workers here and make them responsible. Thirty per cent of their salaries are going to go offshore. This government have talked a lot about the gig economy and the dangers of that. How does the government reconcile that to itself?
Mr LEANE: Mr Barton, this type of alcohol delivery is already occurring, and there is already an onus to not supply alcohol to minors. There is already legislation to not serve alcohol to someone who is intoxicated. I would imagine some of the drivers that you have just mentioned are actually part of this process as well. This is a process to actually bring in line the whole sector, and it is an approach to harm minimisation as well. I think that obviously the licensees have a responsibility as well. They have responsibility around it, and there is a code in the industry to make sure that people are adhering to a number of these issues that are in this bill already.
Mr BARTON: Thank you, Minister. As I understand it those delivery drivers who are doing it now are actually working for companies who have responsible serving of alcohol responsibilities or guidelines or requirements. So yes, they are meeting their obligations there. But what we are talking about is now having people who have not had the experience deal with this sort of scenario.
Mr LEANE: The code that I mentioned before does require that people that take up this particular type of delivery receive training. I actually sympathise with Mr Barton in terms of the types of drivers he is describing, but as I said, I think some types of drivers are already participating in this activity.
Mr BARTON: Who is going to be responsible for the actual training?
Mr LEANE: I will just double-check. Some of the providers, as I said, have their own training code, but it will be up to the licensees to train and direct the drivers. The onus will be on them.
Mr BARTON: So is the pizza shop that is delivering alcohol with your margarita going to be responsible for the training of 50 000 Uber drivers?
Mr LEANE: No, and I would imagine a pizza shop that has 50 000 Uber drivers that deliver alcohol is doing pretty good. I think that pizza shop will have to give direction if they are also supplying alcohol with the pizza to residents, and the onus will be on them to give the directions in terms of how that should be delivered.
Mr BARTON: Thank you, Minister. I think everyone can see what is actually really going to happen in the real world. I am going to ring up my mate who runs the pizza shop. I have been at the footy all day, I have got my big ugly mates with me and I am going to say, ‘Mate, I need 10 margaritas. I need a slab. The girls want three white and three red’. Is that not really what is going to happen, and how can we possibly think that it is going to be able to be policed?
Mr LEANE: I think I will take that as a comment. The provisions of the bill are very clear. The harm minimisation in the bill is very clear. As I said, this type of delivery is happening now, so this bill will put parameters and legislation around that activity.
Mr BARTON: Minister, are there different levels of RSAs depending on the liquor outlet? For instance, is an RSA different between our pizza restaurant and Dan Murphy’s?
Mr LEANE: I will get an answer to that. Mr Barton, there is no difference in the example that you have made. I think we would all appreciate that there should not be any difference—that people should not be supplying alcohol to minors and people that are clearly intoxicated. They are the safeguards that we have in this legislation, which are already in existing legislation as well.
Mr BARTON: Thank you, Minister. Who holds the responsibility for the legal obligations at the point of delivery? For instance, if a delivery driver, because he is a little bit intimidated by the people there, hands over the alcohol and a situation happens and there is a fight or something like that, who holds that responsibility? Does the driver have any responsibility, or does that go back to the person that was selling the alcohol?
Mr LEANE: The responsibility to deliver alcohol is through the directions of the licensee, as I said. It is the person delivering the alcohol, and the directions will be in line also with the law. If a driver feels, looking at a situation, that there could be a fight, then they will have every right not to deliver. If a driver believes that it is clearly a minor or someone is refusing to show their proof of age in the first delivery, then the driver has every right to refuse alcohol in line with, as I said, legislation that is already in place, as well as this legislation and circumstances that are occurring now. That is why it is important that we introduce this legislation to make sure there is an overall consistency in an area where we all expect overall consistency.
Mr BARTON: Thank you, Minister. Commercial Passenger Vehicles Victoria is the body that regulates the commercial passenger vehicle sector. What role will the enforcement officers at Commercial Passenger Vehicles Victoria have in any of this?
Mr LEANE: None—no role.
Mr BARTON: Thank you, Minister. I might just let it go till we have got some of these other amendments up, and we will just shoot through those ones. Otherwise I will be here all night. Thank you, Minister.
Mr GRIMLEY: I have got some questions for the minister around compliance in clause 1. I spoke before about the death of a man in Sydney from the alleged conduct of Jimmy Brings. It was home delivery that allegedly caused this man’s death, with three bottles of wine being delivered to his house every day in the three weeks before his death. Minister, what is the government doing to ensure that this does not happen in Victoria, now that we are potentially passing these laws?
Mr LEANE: Thank you, Mr Grimley. The answer to your question is what we are delivering in this particular legislation as far as harm minimisation goes and getting back to the fact that this is the sort of delivery that is happening now, so this is why we are delivering a framework as best as practicable to try and prevent the situation in the example you have just raised.
Mr GRIMLEY: Thanks, Minister. Just on that line of questioning in relation to compliance with legislation, currently in Victoria we allow mystery shoppers. There are sting operations that we can do for tobacco, for instance, which can be helpful for compliance. Can the minister advise the house on whether the bill allows for these similar types of operations or on-the-ground compliance measures in regard to same-day liquor delivery? And I suppose, if not, how can the minister assure the house that the government is ensuring that compliance with this legislation is actually happening?
Mr LEANE: Thank you, Mr Grimley. Those are the types of issues, as far as compliance goes, that will be worked out with the regulator and VicPol, particularly with the discussions around the regulations as well.
Mr GRIMLEY: Thanks, Minister. I have just got a question in relation to the consultation on the bill, which started in 2016, I am led to believe, after the Royal Commission into Family Violence. But a lot has changed since 2016. The definition of ‘intoxication’ has come under fire, Casey and other councils have battled through unsuccessful liquor applications and same-day delivery has been accelerated, not least by COVID. So this bill is very different to what the consultation entailed. Given this, up to what point has this consultation continued? And just on that, was a draft of this bill sent to the Municipal Association of Victoria, to the Foundation for Alcohol Research and Education, to academics or to any other stakeholders?
Mr LEANE: I will check on the recent consultation, but as I said before, there were academics, health groups and family violence groups involved in the consultation, as far as the types of people in consultation are concerned. But I will check about the recent consultation.
The advisory panel that advises the minister, which includes VicPol, family violence groups and health groups, has had constant discussion around this initiative from the time you stated, in 2016, so there has been constant discussion and consultation around these particular initiatives.
Mr GRIMLEY: Thank you, Minister. During this consultation process saturation zones were explored for inclusion in this bill, as recommended by Deakin University and others—some of those academics. Why isn’t this evidence-based strategy in the bill?
Mr LEANE: Mr Grimley, through the consultation the government believes that it has struck the right balance through the advisory groups and also other consultation—a balance between harm minimisation and this sector, which, as I said, is already taking place. So this will make sure there is a framework and an agreed process going forward, as I said, in an area which is already going ahead.
Mr GRIMLEY: Thank you, Minister. The government has supported saturation zones for pokies with, as I understand it, a limit of 10 machines per thousand adults in certain areas. This was based on evidence that the more pokies there were in high-risk areas, the more harm they created. The evidence tells us that alcohol is the same. You mentioned the academics before. Can the government elaborate on the academic works that were used in rejecting this policy around liquor density? For instance, the work of academics such as Michael Livingston or Peter Miller in this space is well known. Are you able, Minister, to explain to the chamber what types of academic works were considered?
Mr LEANE: I can tell you, Mr Grimley, it was not a matter of government not accepting any advice from any academics in any particular manner, and there were academics involved in the construction of the work towards these initiatives. But I can only say that the government believes that the work towards this bill coming here tonight is striking a balance and actually putting in place harm minimisation measures which do not actually exist as we speak until the bill is passed and these particular initiatives are put in place.
Mr GRIMLEY: Thank you, Minister. I have just got one more question on clause 1, and it is in relation to something that Mr Barton raised before about a delivery driver being involved in an altercation at a home, for instance. Does the government hold any concern over licensees financially penalising delivery persons because they had not delivered alcohol to, say, an under-age person, a person who did not show their ID or a drunk person? How does government intend to curb this potential issue?
Mr LEANE: The industry code already has a position that the delivery driver should be reimbursed for any alcohol that is returned, and we do have an opportunity during the development of the regulations and the consultation to discuss and consult further.
Clause agreed to; clauses 2 and 3 agreed to.
Clause 4 (19:38)
Mr MEDDICK: I move:
1. Clause 4, after line 4 insert—
‘“commercial passenger vehicle service has the same meaning as in the Commercial Passenger Vehicle Service Industry Act 2017;’.
2. Clause 4, line 5, omit ‘“family’ and insert “family”.
Mr BARTON: I just want to say what we are doing with these amendments here. What we are saying is that the people who are going to deliver this alcohol should be employees of the companies that are supplying them and they should have an RSA. It is what we have done for the last 50 years—well, slight exaggeration. That was the process, and that holds the company responsible directly, because there will be serious ramifications for the company then. That is just explaining that particular motion.
Mr MEDDICK: I just reiterate exactly what Mr Barton has said there and also say that Mr Barton and I share great concerns for the safety of the people that will be delivering these deliveries. As Mr Barton said in his questioning during the first clause, the reality of what is going to happen out on the ground is going to be vastly different to what is debated in this chamber. We also share a number of concerns around family violence et cetera, which others have articulated as well, but primary to our concern here is the safety of those drivers—drivers who are already exploited, who are already on some of the lowest paying wages in the country and whose safety will now be at risk. In so doing it would be remiss of me as a proud trade unionist to not be looking out for the lives and the welfare of these workers and to ensure, or at least try to ensure, that these people, if these changes are to come about, should be full-time employees of these outlets and should enjoy all the benefits that a full-time employee would have. They should enjoy superannuation. They should enjoy WorkCover and all the insurances that might come. They should also have holidays, holiday pay and everything that everyone else enjoys. In so doing we can also ensure that it would be a much tighter system and therefore much safer.
Mr ONDARCHIE: I commend Mr Meddick and Mr Barton for their heartfelt contributions on these amendments. We want to, like you, see the safety of people working at all times. We completely support that thinking. The challenge I have with these amendments is they may disproportionately impact small businesses like small cafes or small restaurants—small family-run places that really do not have the capacity to employ full-time delivery people. I know there is a whole industry around delivery people, and I am not going to name them and promote them here because I do think there are some circumstances where people are mistreated. I am not going to use today to promote those people. But there is a disadvantage in this in that the small family-run cafe that makes noodles or that makes sandwiches simply will not have the capacity to employ somebody full-time. I think it may result in those businesses reducing their service offering because they would be compelled to do this, particularly around the matters of alcohol. So on this occasion, whilst commending your sentiments, the opposition will not support these amendments.
Mr LEANE: The government will not be supporting these amendments. I actually echo Mr Ondarchie’s sentiment around that side of small business. There are also small driver contractors that actually would welcome—and I think some of them are already involved in this sort of activity—and would not shy away from the responsibility and the onus put on them to be part of this initiative. I think there are already some that are part of it. I think it is good that we are putting in a framework around this type of delivery to give everyone assurance about something that is already happening.
Mr GRIMLEY: Just a few words. We agree with the sentiment of these amendments. People who work in these jobs as subcontractors do not have guaranteed pay, minimum wages, penalty rates, super—the list goes on, like Mr Meddick explained before—but our party is not sure that the answer is taking the only job that these people might have away from them in the hope that a more secure job will be waiting for them if these amendments do pass. These are foreign uni students, young families where dad has a second job and people who want to get fit and get paid for it. There are many that removing this type of work will affect negatively. But again, we agree that the government needs to work with the sector to ensure that these workers get a fair go and are not exploited. After all, some of these are extremely vulnerable.
Similarly with the second amendment, we think is has great intentions but will ultimately disadvantage small business, as has been explained. Their food sales will be impacted by not allowing alcohol sales, and after COVID they do need all the help they can get getting back on track. If restaurants, cafes and small businesses cannot deliver alcohol, Uber Eats and the other big delivery players should not have the upper hand either.
The DEPUTY PRESIDENT: The question is that Mr Meddick and Mr Barton’s amendments 1 and 2, which are a test for all their remaining amendments, be agreed to.
Committee divided on amendments:
| Ayes, 6 | ||
| Barton, Mr | Hayes, Mr | Patten, Ms |
| Cumming, Dr | Meddick, Mr | Ratnam, Dr |
| Noes, 27 | ||
| Atkinson, Mr | Grimley, Mr | Shing, Ms |
| Bach, Dr | Kieu, Dr | Stitt, Ms |
| Bath, Ms | Leane, Mr | Symes, Ms |
| Bourman, Mr | Lovell, Ms | Tarlamis, Mr |
| Crozier, Ms | Maxwell, Ms | Taylor, Ms |
| Davis, Mr | McArthur, Mrs | Terpstra, Ms |
| Elasmar, Mr | Melhem, Mr | Tierney, Ms |
| Erdogan, Mr | Ondarchie, Mr | Vaghela, Ms |
| Finn, Mr | Pulford, Ms | Watt, Ms |
Amendments negatived.
Clause agreed to; clauses 5 to 7 agreed to.
Clause 8 (19:51)
The DEPUTY PRESIDENT: I invite Dr Ratnam to move her amendment 1, which is a test for her amendments 2 to 8.
Dr RATNAM: I move:
1. Clause 8, page 7, after line 13 insert—
“(cca) the condition that the licensee must not allow liquor to be delivered until 90 minutes after the order is placed; and”.
Just by way of further background—I provided some during my second-reading contribution—as summarised previously, these amendments create a sobering-up period for alcohol delivery so that delivery cannot be made before 90 minutes from the time of orders for holders of most liquor licences. That refers to clause 8, a general licence; clause 11, a club licence; clause 12, a packaged liquor licence; clause 13, late-night general and late-night packaged liquor licence; clause 14, the new online-only vendor liquor licence; and clause 15, a producer’s licence.
You will note that we have excluded in these amendments the restaurant and cafe licence from this sobering-up period given that these businesses primarily provide the delivery of meals and their licence only allows for limited volumes of alcohol to be delivered—that is, one bottle of wine or a sixpack of beers. Therefore we feel in these circumstances the exemption for restaurants is consistent with responsible drinking with meals.
As mentioned previously, we are not about prohibition but sensible harm minimisation. My amendment is based on feedback from family violence stakeholders with firsthand experience who have requested such a delay. I might add that it is really offensive that some MPs have tried to play down and belittle the idea of the sobering-up period reflected in this amendment. One MP labelled it as a ‘thought bubble’, which considering that it has been proposed directly from the lived experience of victim-survivors of alcohol-fuelled family violence, is deeply offensive.
I appreciate such critiques might be the result of arrogance and ignorance rather than deliberate malice, but they illustrate the bigger problem of the alcohol and gambling lobbies, who seem to reflexively overreact to every opposing view or victim of their industries as some kind of existential threat that has to be aggressively shut down and silenced and to every harm minimisation effort, no matter how reasonable and proportionate, as something to be forcefully opposed simply on principle if nothing else. This is not the way that responsible industries operate. These are big tobacco style tactics that ironically usually backfire and end up leading to far more restrictive laws being imposed in the long term. This is not what the Greens want. We want some sensible limits to create a sustainable industry that honestly recognises that, along with the good times, it also contributes to some very serious harms in society and increasingly, based on the data we have, in our homes.
Family violence survivors have asked for a 2-hour delay for alcohol deliveries. We have proposed here a 90-minute delay, which we feel strikes an appropriate balance. The government has proposed not to do anything on this but has promised at some future stage to look at, among other things, whether or not the relative lack of limitations on alcohol delivery has led to an escalation in family violence against women and children.
So these are the options we can choose from today. We think that the government’s approach is the wrong way around. The evidence on the link between alcohol and family violence in the home is already irrefutable and has already been established in the royal commission, and since the time of those recommendations we have experienced a year-on-year increase in family violence incidents reported and even greater rises since the pandemic last year, alongside household spending on alcohol that has risen almost 15 per cent in the space of 12 months. We cannot wait, perhaps for years, for more inevitable violence to occur just so we can again document it and then maybe do something about it.
Of course we also need to be realistic. This amendment is not going to prevent a lot of alcohol-fuelled violence at home, but at the same time it will very likely reduce some, and it costs us nothing, except for those few who cannot stand to wait slightly longer for alcohol to be delivered to their homes.
This is one of those rare opportunities when we have the opportunity to try and make a difference in limiting the scourge of family violence in the home against women and children. We should not let any opportunity for real action pass.
Mr LEANE: Just briefly, the government will not be supporting Dr Ratnam’s amendment. We do not underplay her concern around harm minimisation, but I did put in the second-reading debate summary the reasons why we will not be supporting it.
Committee divided on amendment:
| Ayes, 7 | ||
| Barton, Mr | Hayes, Mr | Meddick, Mr |
| Cumming, Dr | Maxwell, Ms | Ratnam, Dr |
| Grimley, Mr | ||
| Noes, 26 | ||
| Atkinson, Mr | Kieu, Dr | Stitt, Ms |
| Bach, Dr | Leane, Mr | Symes, Ms |
| Bath, Ms | Lovell, Ms | Tarlamis, Mr |
| Bourman, Mr | McArthur, Mrs | Taylor, Ms |
| Crozier, Ms | Melhem, Mr | Terpstra, Ms |
| Davis, Mr | Ondarchie, Mr | Tierney, Ms |
| Elasmar, Mr | Patten, Ms | Vaghela, Ms |
| Erdogan, Mr | Pulford, Ms | Watt, Ms |
| Finn, Mr | Shing, Ms | |
Amendment negatived.
Clause agreed to; clauses 9 to 13 agreed to.
Clause 14 (20:02)
Mr ONDARCHIE: I move:
3. Clause 14, line 26, omit “premises—” and insert “premises during ordinary trading hours.”.
4. Clause 14, lines 27 to 31, omit all words and expressions on those lines.
This is about limiting the supply of packaged liquor under certain licences within ordinary trading hours. I spoke to this a bit in my second-reading contribution today, and so for the sake of the minister I do not have to repeat myself.
Mr LEANE: I appreciate Mr Ondarchie’s consideration. I will also rely on the remarks I made in the second-reading response.
Committee divided on amendments:
| Ayes, 13 | ||
| Atkinson, Mr | Cumming, Dr | Lovell, Ms |
| Bach, Dr | Davis, Mr | McArthur, Mrs |
| Barton, Mr | Finn, Mr | Meddick, Mr |
| Bath, Ms | Hayes, Mr | Ondarchie, Mr |
| Crozier, Ms | ||
| Noes, 20 | ||
| Bourman, Mr | Melhem, Mr | Tarlamis, Mr |
| Elasmar, Mr | Patten, Ms | Taylor, Ms |
| Erdogan, Mr | Pulford, Ms | Terpstra, Ms |
| Grimley, Mr | Ratnam, Dr | Tierney, Ms |
| Kieu, Dr | Shing, Ms | Vaghela, Ms |
| Leane, Mr | Stitt, Ms | Watt, Ms |
| Maxwell, Ms | Symes, Ms | |
Amendments negatived.
Clause agreed to; clauses 15 and 16 agreed to.
Clause 17 (20:09)
Mr GRIMLEY: I have got some questions on this clause as well, but I will move the amendment first. I move:
1. Heading to clause 17, omit “and 18D” and insert “, 18D and 18E”.
This amendment establishes a ministerial review of online delivery to begin after 18 months of the act’s operation, with the review itself to be tabled in Parliament within six months thereafter. The review is modelled on a New South Wales requirement in their 2020 bill and has been developed in direct consultation with industry groups in Victoria. It will require reporting on harm from online delivery, whether the changes to same-day delivery achieve the objectives of the act, an analysis of emerging trends and technologies—this might be advertising algorithms et cetera—and potential future harm minimisation strategies. This review provides an opportunity for the government to reflect on the operation of online delivery and develop potential further reforms down the track.
Given the impact of alcohol on assaults, violence, family violence and general crime, a review is the absolute minimum we would expect from the government through the passage of this bill. I look forward to the opposition’s support on this at some stage, with their shadow minister, Steph Ryan, saying in the other place that she believes it would actually be sensible for the government to consider a review of how this licence is operating after a period of time to ensure that the legislation is working as it was intended and that data is being accurately captured.
I look forward to the support of the chamber on this one. In saying that, I have had discussions with the government during this process as well, and I believe the minister may have some comments to make further.
Mr LEANE: I did put this on the record in the second-reading summary, but it may have been a bit confused, so I think it should really be reiterated that this is the relevant minister’s position and this is also the government’s position, so if I could read out this statement.
I understand that some members have concerns regarding the online delivery component of this bill. I understand there has been detailed engagement on this issue, particularly with Mr Grimley and his staff. I would like to confirm that there will be a ministerial statement brought back to the house 12 months after the commencement date to provide more detail on this licensing condition. This would include an assessment of take-up and the activity of this licence condition as well as harm, particularly whether this section of the bill achieves the objectives of the act.
The statement will include data from records that licensees will be required to keep as stipulated in a ministerial direction, which will include deliveries returned if the recipient is under-age, deliveries returned if the recipient is intoxicated, deliveries returned if the address is unattended, deliveries returned if the recipient is not the person who placed the order for a first-time order, and deliveries returned for any other reason. This will provide a public and transparent report to this place on the impacts of this section of this proposed legislation.
Mr ONDARCHIE: In relation to Mr Grimley’s amendment about a ministerial review that is modelled on the New South Wales 2020 bill, I heard his quote from the shadow minister in the other place about this, but I would like to make a comment about it myself, if that is okay. I think, given how quickly this space is moving, this is a very sensible proposition. I think it is worth absolutely considering, and, picking up the minister’s statement now, there should be no compelling reason why the government would want to vote against this. We commend Mr Grimley’s amendment to the house.
Mr LEANE: Just a clarification: we will be voting against the amendment to the bill, but we have put on record the intention of the government and the minister to bring that statement to this house after 12 months.
Amendment negatived.
Mr GRIMLEY: I move:
2. Clause 17, page 16, after line 13 insert—
“(ca) keeps any prescribed records in relation to orders placed online where liquor was not delivered because to do so would contravene a provision of this Act; and”.
This amendment requires licensees to keep records of where alcohol has not been delivered because doing so would contravene the act. This might be useful for a number of reasons, including, one, the licensee could decide that after multiple unsuccessful purchases because the purchaser was drunk, under age or otherwise they now will not deliver to that person anymore. Two, it will inform the ministerial review that is outlined in one of our other amendments which I have spoken about previously. Three, we do not know what we do not know. There could be 10 000 people being refused every year from home delivery, and we would not know this without the data being collected and scrutinised. For instance, there might be a rate of refusal 10 times greater in one LGA than in another. This sort of data would demonstrate that same-day delivery is problematic in that area or that additional compliance measures need to be put in place. Four, eventually our party envisages that, with the growth of this sector, the liquor accord may find use in this data to protect the community. And five, this mechanism could also be used for collecting data on assaults or antisocial behaviour against delivery persons, which is extremely important.
We have made this amendment intentionally broad to allow regulation to decide the record-keeping requirements, such as which records need to be kept and for how long and who can have access to these records, to allow flexibility. The government has indicated that this record keeping could potentially be introduced as online-only vendor licence conditions through regulations if the government does not support this amendment, which we have spoken about previously. I am pleased to hear the commitment that has been given on the record so far. I will just leave it at that.
Mr LEANE: Thank you, Mr Grimley. We do rely on the statement that I read on the record. That was a statement from the minister and a commitment from the government in this house.
Amendment negatived.
Dr RATNAM: I move:
9. Clause 17, page 16, lines 22 to 24, omit all words and expressions on these lines and insert—
“(a) on and from 30 June 2022, require the person who placed the order to verify that they are of or over the age of 18 years using an accredited identity service provider or another prescribed process; and”.
10. Clause 17, page 17, lines 14 to 16, omit all words and expressions on these lines and insert—
“(a) on and from 30 June 2022, require the person who placed the order to verify that they are of or over the age of 18 years using an accredited identity service provider or another prescribed process; and”.
11. Clause 17, page 18, after line 27 insert—
“(5) In this section—
accredited identity service provider means an identity service provider who has been accredited under the Trusted Digital Identity Framework published by the Digital Transformation Agency on behalf of the Commonwealth.”.
These amendments are quite literally about bringing online age verification from the 20th century to the 21st century, but this is not just about updating technology. There is a demonstrated need to strengthen proof-of-age checks in the era of rapid home alcohol delivery. Research released only weeks ago in the peer-reviewed journal of Public Health Research and Practice found that 60 per cent of the 213 online alcohol retailers reviewed in New South Wales did not comply with the current legal requirement to ensure purchasers provided their date of birth to confirm they were over 18.
These amendments require that from 30 June next year online alcohol orders will have to be age verified that the order was made by a person over the age of 18 using an accredited digital service provider—that is, one that has received accreditation under the trusted digital identity framework, TDIF, by the Digital Transformation Agency of the commonwealth. This replaces the self-identifying tick-box verification that is currently proposed in the bill. TDIF accreditation means an organisation or government agency has undergone a series of assurance evaluations for their digital identity service, particularly in regard to privacy protection, security and fraud control, risk management and technical integrity. The digital ID offered by Australia Post received this accreditation back in 2019, and their digital ID is already used to access some venues in Victoria.
This amendment is exactly the same one that has been included in the equivalent to the liquor control act in New South Wales for same-day alcohol delivery licensees, which will also come into effect on 30 June next year. Users of online delivery apps would have already noticed that recently a range of new interface updates and notices in regard to age verification checks now occur when they order alcohol for delivery in Victoria. This is not because of any Victorian government reforms but because New South Wales already passed their Liquor Amendment (24-hour Economy) Bill 2020, which contains much more onerous harm minimisation requirements than we currently have in Victoria or indeed are proposed in this bill.
Now, thanks to the magic of the online business environment, which does not necessarily respect jurisdictional boundaries, Victorians are often effectively operating under the more onerous New South Wales requirements in regard to things like delivery drivers doing ID checks and recording IDs when they order alcohol online from multijurisdictional vendors. It is somewhat embarrassing that not only has New South Wales been the only jurisdiction to date that has proven capable of properly regulating Victoria’s casino but it also seems to have assumed the lead role in terms of regulating Victorians buying alcohol online. So we do not really have a choice; the government may be happy persisting with codifying an obsolete, dot-matrix-era age verification in this bill, but such bills will be irrelevant when other jurisdictions such as New South Wales are already moving beyond this.
Victoria will have to move with the times on digital age verification. Whether we like it or not, it is happening. It needs to be recognised officially in the laws of this state. While requiring TDIF-accredited age verification is ideal given the standards it upholds in terms of things like privacy and security, the amendment contains room for another prescribed process to be established by the government prior to commencement. This provides some flexibility in terms of potentially allowing other age verification requirements by commencement next year just in case the government needs even more time to move into this present age, but New South Wales has legislated these technology-based age verification requirements in law to provide a key signal to industry of what direction they need to move in if they want to operate in the current digital environment. Victoria must do the same or be left behind yet again.
Mr LEANE: I thank Dr Ratnam for her amendment, but we will be in a position to monitor the efficacy of the New South Wales program and we will be in a position to look at this as something that can be introduced through the regulations, which we also think is the best place for that to be looked at, so we will be opposing it.
Mr ONDARCHIE: I find myself in the unusual position of understanding the rationale for Dr Ratnam’s position today. But I do think, picking up the minister’s comments, that this can probably be managed through regulation. We know that the work that the federal government are doing has still got some time to go, and perhaps as a starting point we can encourage the industry to adopt a voluntary code around this without having to legislate it. So on this occasion we will not be supporting this amendment.
Mr BARTON: If I can just ask a question on clause 17 about age verification, why does age or identity not have to be verified for every subsequent order when it is just as likely that the alcohol could be purchased from another’s account? Now, industry experience tells us that teens have been known to use their parents’ rideshare account, and they only find out after they get their credit card bill in. Is there a safety check in place to stop a minor ordering liquor off their parents’ food delivery app and requesting it to be left on the doorstep?
Mr LEANE: The provision here is that alcohol cannot be left on the doorstep.
Mr GRIMLEY: I have just got a comment to make on the amendment. Can I ask some questions on clause 17 after that, or would you like me to do the questions on clause 17 now?
The DEPUTY PRESIDENT: If we could just deal with the amendments, then we will deal with questions.
Mr GRIMLEY: We will support Dr Ratnam’s amendment. The alcohol harm industry have been calling out for this for a long time. This amendment is consistent with an amendment in the New South Wales bill from last year and allows for an adequate time frame to phase in so the regulator can develop the technology to ensure compliance across the sector. Whilst this may add a very thin layer of red tape, I think it is a small price to pay to reduce the likelihood of our kids ordering alcohol and potentially doing damage under its influence. The safety of our kids is at the heart of our party. We will support it.
Committee divided on amendments:
| Ayes, 8 | ||
| Barton, Mr | Hayes, Mr | Patten, Ms |
| Cumming, Dr | Maxwell, Ms | Ratnam, Dr |
| Grimley, Mr | Meddick, Mr | |
| Noes, 25 | ||
| Atkinson, Mr | Kieu, Dr | Stitt, Ms |
| Bach, Dr | Leane, Mr | Symes, Ms |
| Bath, Ms | Lovell, Ms | Tarlamis, Mr |
| Bourman, Mr | McArthur, Mrs | Taylor, Ms |
| Crozier, Ms | Melhem, Mr | Terpstra, Ms |
| Davis, Mr | Ondarchie, Mr | Tierney, Ms |
| Elasmar, Mr | Pulford, Ms | Vaghela, Ms |
| Erdogan, Mr | Shing, Ms | Watt, Ms |
| Finn, Mr | ||
Amendments negatived.
Mr GRIMLEY: I have only got two quick questions. The first one is in relation to training. Despite it being in the Retail Drinks Australia code, at least 40 per cent of people report not having their ID checked when alcohol is delivered. Minister, as a result of this bill, should it pass, what training will these people need to undertake—the delivery drivers in particular?
Mr LEANE: I think, Mr Grimley, the answer to your question is to have the training adhere to the code, and the instructions from the licensee as well.
Mr GRIMLEY: Thanks, Minister. You spoke before about Mr Barton’s question in relation to leaving alcohol unattended at the front door, and you said it will never happen. I have just got a question in relation to alcohol being left unattended at premises on subsequent or second orders. What is the position there?
Mr LEANE: Mr Grimley, for rapid delivery it can never be left unattended. For subsequent deliveries after a first verification there is the possibility for that to happen.
Clause agreed to; clauses 18 to 21 agreed to.
Clause 22 (20:32)
Mr GRIMLEY: I move:
5. Clause 22, line 22, omit “750” and insert “400”.
This amendment is in relation to changing the definition of ‘large packaged liquor outlet’. I do have some questions on this that I will ask. This amendment reduces the floor space in the definition of ‘large packaged liquor outlet’ from 750 square metres to 400 square metres. In effect this will change the threshold for a community impact assessment, or a CIA. In practice this will mean that a large packaged liquor outlet, such as a mega bottle shop like Dan Murphy’s, for instance, or First Choice Liquor, would need to obtain a CIA if its floor space was over 400 square metres, as opposed to 750 square metres. For perspective, an average bottle shop is between 150 and 190 square metres, so these large outlets are not just large, they are massive. This issue was flagged during the five-year consultation from the royal commission but has not been reflected in the bill. I am not too sure what happened there. I have asked for information from the minister’s office and other stakeholders about how the government arrived at or could have arrived at this figure, but no-one could tell me to this point. That 750 square metres has seemingly been pulled out of thin air. This is in contrast to Western Australia, where their counterpart definition is 400 square metres. We believe that the 750 square metres is arbitrary and too big.
Mr LEANE: Thank you, Mr Grimley, for your amendment. In the Victorian market I think that the 750 clearly will capture those large beer barn type facilities, so we are more comfortable with that. We do not want to capture the sort of small corner bottle shops for the community impact assessments because of the cost; there might be startups that do not start up for that particular reason.
Amendment negatived.
Mr GRIMLEY: Just two very quick questions: just on the definitions, my office has asked the minister’s office and the department how the definition of ‘large packaged liquor outlet’ was arrived at, but no-one seems to sort of give us an explanation, except for the fact that is in the upper end of applications. The harm reduction lobby are concerned that this narrow definition will prohibit outlets that are still very large from conducting community impact assessments. So how was the 750 square metre figure arrived at to define the large packaged liquor outlet, Minister?
Mr LEANE: Mr Grimley, in response to your amendment, it is more than clear that that size square metreage will clearly pick up those big barn liquor outlet type facilities. I will not say the brand name, but the big beer barns we all know—there will not be one of those big beer barn type things that will have anything near to under 750. They are mainly a lot larger than that.
Clause agreed to.
Clause 23 (20:37)
Mr BARTON: Minister, a community impact statement is only required to be undertaken by a large packaged liquor outlet. Given the impact on the community, is it not important to ensure that all packaged liquor outlets complete a community impact statement? I understand in New South Wales it is a requirement for all packaged liquor outlets to complete a CIS.
Mr LEANE: Mr Barton, any new packaged outlet, even quite a small one, will have to be approved through the current framework and legislation and regulator. I would rely on the response to Mr Grimley’s amendment: that we do not want to discourage startups before they actually start up as far as the small corner bottle shop is concerned. As I said, we clearly believe that 750 square metres will capture anything as far as the beer barn types, but we do not want to put any onus on the smaller-type corner bottle shop, which does have to go through a number of applications anyway to be able to establish.
Clause agreed to; clauses 24 to 27 agreed to.
Clause 28 (20:39)
Mr GRIMLEY: My questions on clause 28 are in relation to contested applications for large packaged liquor outlets. Minister, how many uncontested applications have been approved by the VCGLR since 2016? And in the interests of saving time, on that note, how many have been denied or knocked back also?
Mr LEANE: I will get that answer.
Unfortunately, Mr Grimley, I do not have those figures and that data at hand, but I commit to get that on notice and get that data to you as soon as possible.
Mr GRIMLEY: Thank you, Minister, and just on that note, if this could be taken on notice perhaps also: in relation to the uncontested applications, how many of these were for the big box stores or what would be now known as large packaged liquor outlets, the ones over 750 square metres?
Mr LEANE: I commit to taking that on notice for Mr Grimley as well. We do not have that at hand in the data.
Clause agreed to; clauses 29 to 41 agreed to.
Clause 42 (20:40)
The DEPUTY PRESIDENT: We move to clause 42, and with the leave of the committee we will consider Mr Grimley’s amendments 7, 8 and 9 first, as they are his substantive amendments to clause 42. Mr Grimley’s amendment 6, which is also to this clause, is consequential and will be considered only if his amendments 7 and/or 8 to 9 are agreed to.
Mr GRIMLEY: I move:
7. Clause 42, page 31, after line 3 insert—
“109BA Delivery person must complete approved responsible service of alcohol program
(1) On and from 1 September 2022, the following persons must ensure that liquor is delivered by a person who has completed an approved responsible service of alcohol program within the period of 3 years prior to the date on which the liquor is delivered—
(a) the licensee;
(b) a person who is responsible under a contract for the delivery of liquor on behalf of a licensee, whether the contract is directly or indirectly with the licensee or another person.
Penalty: 60 penalty units.
(2) Subsection (1) does not apply to a person who physically delivers the liquor unless that person is the licensee.”.
My amendment is in relation to an approved RSA course, and it is in relation to this new section, which mandates that a licensee must ensure that their delivery persons have an active RSA. This does not necessarily mean the arduous and expensive current RSA course, which is predominantly aimed at those who serve alcohol in premises. However, there is clearly an issue where there is no requirement for a delivery person to have any alcohol service training, despite this being a requirement for virtually every other occupation that serves or supplies alcohol.
I was disappointed that despite the opposition’s shadow minister acknowledging that this amendment frequently came up in consultations, it is not an amendment they themselves have put forward. But given this acknowledgement I hope that they will support this amendment. Thorough consultation does not need to be done on this; this bill has had five years consultation. It is just that the government has chosen not to pursue this additional safeguard for some reason.
Currently, under the Liquor Control Reform Act, the VCGLR can approve a new RSA course through regulation, and we intend to through this amendment. The VCGLR will develop an online short course that covers the parameters and requirements of online-only delivery of alcohol as well as ways for delivery persons to keep themselves and others safe through their delivery of alcohol. This also upholds Ms Patten’s concerns around the delivery persons not being equipped with making a determination if someone is intoxicated and will put them in line with other RSA-trained workers. The reference to three years in the amendment is included as that is the current time frame in which RSA courses are active, so you need to do a refresher every three years, similar to New South Wales. There is an adequate phase-in period of one year to allow a short online course or similar to be developed by the VCGLR and to allow delivery persons to complete it. We have opted for penalty units as a sanction, rather than the changing of the licence conditions, because we do not believe that the variation of licence conditions or penalising licensees through changing their licence conditions is adequately done in practice.
In relation to financially penalising delivery persons my new section 109D would introduce a penalty for a licensee if they penalise a delivery person who fails to deliver alcohol due to working in accordance with the act, with ‘financially penalise’ defined in the amendments. For example, if a delivery person does not deliver alcohol because the person they are delivering to is intoxicated or under age, the delivery person should not be financially penalised. The reason for this section is that if a delivery person feels they will lose income or their job, they are more likely to breach this act. Given the lack of compliance officers and that this bill will increase liquor licences by thousands, we need all the checks and balances in the act that we can get. It is only 120 penalty units, but this would obviously be per person, so if Uber Eats stopped paying 10 subcontractors because they had been complying with the limited protections in the act, Uber Eats would have to pay 1200 penalty units. Given their profit was $785 million in 2018, it is a small price to pay. I look forward to your support for this amendment, which will support vulnerable people to do their job.
Mr LEANE: Just in response to Mr Grimley, the government will not be supporting his amendment, and I think I state a similar position to those that were put by other members of the committee that there is a code which puts an onus on training but also an agreed code that people should not be penalised for returning deliveries because of the causation that Mr Grimley outlined. There will be opportunities to look at whether there can be some improvements in this area through the regulation framework, which will have a regulatory impact statement, which will have the draft regulations made public and a lot of consultation around it.
Committee divided on amendment:
| Ayes, 8 | ||
| Barton, Mr | Hayes, Mr | Patten, Ms |
| Cumming, Dr | Maxwell, Ms | Ratnam, Dr |
| Grimley, Mr | Meddick, Mr | |
| Noes, 25 | ||
| Atkinson, Mr | Kieu, Dr | Stitt, Ms |
| Bach, Dr | Leane, Mr | Symes, Ms |
| Bath, Ms | Lovell, Ms | Tarlamis, Mr |
| Bourman, Mr | McArthur, Mrs | Taylor, Ms |
| Crozier, Ms | Melhem, Mr | Terpstra, Ms |
| Davis, Mr | Ondarchie, Mr | Tierney, Ms |
| Elasmar, Mr | Pulford, Ms | Vaghela, Ms |
| Erdogan, Mr | Shing, Ms | Watt, Ms |
| Finn, Mr | ||
Amendment negatived.
Ms PATTEN: My amendment is amending new section 109C. But prior to putting my amendment up, I would like some understanding of why this section has been placed in there. It says a person must not deliver liquor supplied online to someone where there is ‘a substantial risk of intoxication’. We do not have this in supply of alcohol in any other area. It is only delivery people that will need to ascertain whether someone is at risk of intoxication.
Mr LEANE: Thank you, Ms Patten, for your question. I think I might give you the response that I was going to give you as far as your amendment goes in advance, which might acquit the question. It appears to be suggested that the requirement relates to an assessment of a person’s future state of intoxication—for example, that a person is at risk of becoming substantially intoxicated in the future. This is clearly not the case. An assessment as to ‘a substantial risk of intoxication’ at the time a delivery is made by a delivery person is, for example, loud noises, yelling, people being sick or even a person falling over as they approach the door, but they only have a short time of observation of this person when the door is open. The ‘substantial risk of intoxication’ would allow the driver to make an assessment of a substantial risk that the person is currently intoxicated, even though they may not show observable signs in that small, limited interaction.
Ms PATTEN: Thank you, Minister. I think that now actually gives me great grounds to move my amendment because really your explanation there was about intoxication—someone falling over, being sick, those sorts of things. Well, yes, they would be signals of intoxication, but they would not be signals of a risk of becoming intoxicated, because a risk of becoming intoxicated would obviously by definition mean that the person was not currently intoxicated. That would mean that you are now looking into the future to say that someone is at risk of becoming intoxicated. I am moving a very simple amendment to this clause:
1. Clause 42, page 31, lines 8 to 10, omit “or in respect of whom there is a substantial risk of intoxication”.
I do that because I think it makes the legislation consistent. We are not asking the staff at a bottle shop to guess the risk of someone becoming substantially intoxicated. We are not asking someone in a bar or in a restaurant to see whether someone is at risk of becoming intoxicated. It is only for delivery people that we are asking this. So I move my amendment and I seek the support of the house.
Mr LEANE: Just further to the response to Ms Patten’s question and now amendment, people have a greater period of time to assess someone who is actually physically in a bottle shop and doing the bash and crash that I explained may be happening inside a premises. That is why in this instance—because there is only a small actual physical interaction at a doorway—this provision is in this particular legislation as far as the delivery goes.
Ms PATTEN: Sorry, I do not mean to extend this. One would suggest that if that was the logic to this, then you would actually put this clause into all parts of the legislation. We are asking a delivery person in that 30 seconds to assess whether someone is intoxicated or at risk of intoxication. You are actually asking them to make a greater assessment in that 30 seconds than you are in the time that they walk through the corridors of Dan Murphy’s and pick up whatever might put them at risk of intoxication.
Mr LEANE: I think I gave a clear example before in terms of what someone might hear before a door is opened and someone stands in front of them and appears to be not what they are. There is an assessment that a delivery driver can make with the interaction before the door opens.
Dr CUMMING: Minister, this clause—and you asked the question—says ‘substantial risk of intoxication’. Would this be used when an Uber driver has a known customer? So they are going there all the time and may know that they are an alcoholic, so therefore this would be something that would be used at that particular time? Is that why this language would have been used?
Mr LEANE: I will just stand by the description that we have given in response to Ms Patten.
Mr GRIMLEY: I will just make a quick statement. I think it is important that delivery persons are in a position to make judgement calls like this, because if they do not make this call, then there is probably literally no-one in the supply chain that can. I think for these reasons we will not be supporting this amendment.
Committee divided on amendment:
| Ayes, 4 | ||
| Barton, Mr | Hayes, Mr | Patten, Ms |
| Cumming, Dr | ||
| Noes, 29 | ||
| Atkinson, Mr | Kieu, Dr | Shing, Ms |
| Bach, Dr | Leane, Mr | Stitt, Ms |
| Bath, Ms | Lovell, Ms | Symes, Ms |
| Bourman, Mr | Maxwell, Ms | Tarlamis, Mr |
| Crozier, Ms | McArthur, Mrs | Taylor, Ms |
| Davis, Mr | Meddick, Mr | Terpstra, Ms |
| Elasmar, Mr | Melhem, Mr | Tierney, Ms |
| Erdogan, Mr | Ondarchie, Mr | Vaghela, Ms |
| Finn, Mr | Pulford, Ms | Watt, Ms |
| Grimley, Mr | Ratnam, Dr | |
Amendment negatived.
Clause agreed to; clause 43 agreed to.
Clause 44 (21:06)
Ms PATTEN: I move:
2. Clause 44, line 28, omit “sexual,”.
Again, this is a very simple amendment. It just omits the word ‘sexual’ from clause 44. This is a clause that currently prohibits advertising or promotion that is directly or indirectly sexual, degrading or sexist. Now, prohibiting advertising that is indirectly or directly sexist and degrading—my word, I totally support that. But when you add ‘sexual’ to that, what does that mean for our LGBTI community who are celebrating their sexuality, who are going out there in licensed communities? That actually means that in some ways they may be prohibited from that advertising. What does that mean? I know people may not support them, but for some of our licensed adult entertainment venues that are providing sexual entertainment—in fact their liquor licence says they provide sexual entertainment—how can we prohibit them from directly or indirectly advertising? It actually prohibits them from advertising.
I am not suggesting that anything that is sexist or degrading should be allowed, but the definition of ‘sexual’ could be hand-holding. It could be looking longingly into each other’s eyes. It could be a candlelit dinner. It could be two glasses with champagne. All of that could be indirectly sexual, because we know what that might lead to. So I think this is a very simple and sensible amendment, that we just omit the word ‘sexual’. We leave the words ‘sexist’ and ‘degrading’ in there, but we omit the word ‘sexual’.
Mr ONDARCHIE: Hansard should put a pin in the book today, because I am going to agree with Ms Patten on something—perhaps for the first time in my time here. I think in terms of a prohibition as per the clause in here that Ms Patten has referred to, it is hard to define what that is. I completely agree with ‘sexist’ and ‘degrading’. Let us deal with those people who deal with that, but it is hard to define what that is. Is it two people holding hands or swinging each other on a swing or going for a walk in the park? What is it? And if we are going to put a law in, a law that is defensible—well, this is hardly defensible. So the state opposition—it is hard to say this—will be supporting Ms Patten’s amendment.
Mr LEANE: I am actually on the record agreeing a lot with Ms Patten over the years, but in this case the government will not support her amendment. I will read the response that I started to read wrongly previously.
There was support all the way through the submission process to ban advertising and promotions that encourage the irresponsible consumption of alcohol and to ban advertising that disrespects or objectifies women. This was also strongly supported in recent briefings provided to community and health stakeholders. We made a commitment to take the current code and put it into legislation, as it sends a strong signal. We therefore will continue to support the current position, and we do not support the amendment as moved. I should note for the house that other jurisdictions have bans on sexual and degrading advertising and promotions.
Ms PATTEN: I just want to make one note for the house. In looking at other jurisdictions, it is sexual ‘and’ degrading, not ‘or’. In this one that we have it is sexual ‘or’ degrading ‘or’ sexist. If it was sexual ‘and’ degrading, it would have my support. But the fact that we have differentiated them is why I am pushing for this amendment.
Mr ATKINSON: Can I ask the minister how this clause affects gay community evenings. There are a lot of gay parties that are organised explicitly for gay people, and I would have thought there was a sexual connotation to that. Not that the activities at those events are necessarily sexual but there is a connotation that, in terms of the definition of this clause, could see them imperilled with those events.
Ms PATTEN: They may be indirectly sexual.
Mr ATKINSON: Exactly.
Mr LEANE: The answer is that it is around the advertising of the event. It would not have an effect on those sorts of events that you just described actually still existing. It is about advertising an alcohol event.
Mr LIMBRICK: The Liberal Democrats would like to voice their support for this amendment. We believe that the inclusion of ‘sexual’ in the definition is a limitation on free speech, and we agree with the amendment. Unfortunately, however, we are currently suspended from Parliament so our vote does not count, but we would like to support this amendment if we were able to.
Ms SHING: Just further, Ms Patten, to the point that you raised about sexual ‘and’ degrading and the fact that those two concepts are linked, you said that that is the case in other jurisdictions. It is my understanding that it is sexual ‘or’ degrading in the ACT, New South Wales, Western Australia and Tasmania. I am happy to be corrected if that is incorrect, but the wording is ‘or’, as far as my understanding goes, in those other jurisdictions.
Ms PATTEN: You are correcting the minister, not me.
Ms SHING: No, no. I am referring to your language in relation to the point that you raised.
Ms PATTEN: Thank you, Ms Shing. I was just quoting the minister. I was not quoting other legislation. The minister said ‘and’.
Committee divided on amendment:
| Ayes, 15 | ||
| Atkinson, Mr | Cumming, Dr | McArthur, Mrs |
| Bach, Dr | Davis, Mr | Meddick, Mr |
| Barton, Mr | Finn, Mr | Ondarchie, Mr |
| Bath, Ms | Hayes, Mr | Patten, Ms |
| Crozier, Ms | Lovell, Ms | Ratnam, Dr |
| Noes, 18 | ||
| Bourman, Mr | Maxwell, Ms | Tarlamis, Mr |
| Elasmar, Mr | Melhem, Mr | Taylor, Ms |
| Erdogan, Mr | Pulford, Ms | Terpstra, Ms |
| Grimley, Mr | Shing, Ms | Tierney, Ms |
| Kieu, Dr | Stitt, Ms | Vaghela, Ms |
| Leane, Mr | Symes, Ms | Watt, Ms |
Amendment negatived.
Clause agreed to; clauses 45 to 59 agreed to.
New clause (21:21)
The DEPUTY PRESIDENT: Mr Ondarchie, I invite you to move your amendment 7, which inserts a new clause. We need to keep any debate really brief in order to ring the bells for 1 minute, so if we get into extended debate, we will have to ring them for 4 minutes.
Mr ONDARCHIE: Thank you for the editorial, Deputy President, prior to my starting, but I will remind you there is nothing in the temporary orders that requires you to ring the bells for less than 4 minutes. Part of our discussion today is around making sure that we get this right, so I move:
7. Insert the following New Clause to follow clause 59—
‘59A New section 185 inserted
After section 184 of the Principal Act insert—
“185 Review of amendments—Liquor Control Reform Amendment Act 2021
(1) The Minister must review the operation of amendments made to section 9A by the Liquor Control Reform Amendment Act 2021 in relation to the authority for licensees to supply liquor on licensed premises in sealed containers, bottles or cans for consumption off the licenced premises during ordinary trading hours.
(2) A review under subsection (1) must be completed no later than 3 years after the amendments are made to section 9A by the Liquor Control Reform Amendment Act 2021.”.’.
This is about making sure that we do not disadvantage any small outlets that may in fact be disadvantaged by this or undercut by the change, and it requires that review to make sure that we have got it right. I think, given the minister’s second-reading speech and then his contribution at the end of the second reading, that it is incumbent on the government to make sure that they legislate to do a review at the proper time. I move the amendment standing in my name.
Mr LEANE: I think in a response to one of Mr Grimley’s amendments I did put on the record a statement from the minister around a review that she has committed to. And as for the implementation of this act, there is also a lot of work to go through in the regulatory process. As I said, there will be a regulatory impact statement, which will include the draft regulations, so there will be consultation and there will be time afforded to discuss all aspects, including the aspect which is included in Mr Ondarchie’s amendment. Therefore we see no need for it and we will oppose it.
Committee divided on new clause:
| Ayes, 16 | ||
| Atkinson, Mr | Davis, Mr | Maxwell, Ms |
| Bach, Dr | Finn, Mr | McArthur, Mrs |
| Barton, Mr | Grimley, Mr | Meddick, Mr |
| Bath, Ms | Hayes, Mr | Ondarchie, Mr |
| Crozier, Ms | Lovell, Ms | Patten, Ms |
| Cumming, Dr | ||
| Noes, 17 | ||
| Bourman, Mr | Pulford, Ms | Taylor, Ms |
| Elasmar, Mr | Ratnam, Dr | Terpstra, Ms |
| Erdogan, Mr | Shing, Ms | Tierney, Ms |
| Kieu, Dr | Stitt, Ms | Vaghela, Ms |
| Leane, Mr | Symes, Ms | Watt, Ms |
| Melhem, Mr | Tarlamis, Mr | |
New clause negatived.
Clauses 60 to 62 agreed to.
Reported to house without amendment.
Mr LEANE (Eastern Metropolitan—Minister for Local Government, Minister for Suburban Development, Minister for Veterans) (21:28): I move:
That the report be now adopted.
Motion agreed to.
Report adopted.
Third reading
Mr LEANE (Eastern Metropolitan—Minister for Local Government, Minister for Suburban Development, Minister for Veterans) (21:28): I move:
That the bill be now read a third time.
In saying that, can I thank for their contributions, in order, Mr Ondarchie, Dr Cumming, Mr Meddick, Mr Barton, Dr Ratnam, Mr Grimley, Ms Patten and the Deputy President, and I thank them for their cooperation during the committee stage.
The PRESIDENT: The question is:
That the bill be now read a third time and do pass.
House divided on question:
| Ayes, 29 | ||
| Atkinson, Mr | Kieu, Dr | Shing, Ms |
| Bach, Dr | Leane, Mr | Stitt, Ms |
| Bath, Ms | Lovell, Ms | Symes, Ms |
| Bourman, Mr | Maxwell, Ms | Tarlamis, Mr |
| Crozier, Ms | McArthur, Mrs | Taylor, Ms |
| Davis, Mr | Melhem, Mr | Terpstra, Ms |
| Elasmar, Mr | Ondarchie, Mr | Tierney, Ms |
| Erdogan, Mr | Patten, Ms | Vaghela, Ms |
| Finn, Mr | Pulford, Ms | Watt, Ms |
| Grimley, Mr | Ratnam, Dr | |
| Noes, 4 | ||
| Barton, Mr | Hayes, Mr | Meddick, Mr |
| Cumming, Dr | ||
Question agreed to.
Read third time.
The PRESIDENT: Pursuant to standing order 14.27, the bill will be returned to the Assembly with a message informing them that the Council have agreed to the bill without amendment.
Public Health and Wellbeing Amendment (Pandemic Management) Bill 2021
Introduction and first reading
The PRESIDENT (21:37): I have a message from the Assembly:
The Legislative Assembly presents for the agreement of the Legislative Council ‘A Bill for an Act to amend the Public Health and Wellbeing Act 2008 in relation to the effective management of pandemics and for other purposes’.
Mr Davis: On a point of order, President, I am just interested to know whether the Scrutiny of Acts and Regulations Committee has reported on this bill. This bill has been brought through the Assembly very quickly, and I want to know whether SARC has reported on this bill. I do not believe it has.
The PRESIDENT: Mr Davis, you know that is not a point of order.
Ms SYMES (Northern Victoria—Leader of the Government, Attorney-General, Minister for Emergency Services) (21:37): I move:
That the bill be now read a first time.
House divided on motion:
| Ayes, 18 | ||
| Elasmar, Mr | Patten, Ms | Tarlamis, Mr |
| Erdogan, Mr | Pulford, Ms | Taylor, Ms |
| Kieu, Dr | Ratnam, Dr | Terpstra, Ms |
| Leane, Mr | Shing, Ms | Tierney, Ms |
| Meddick, Mr | Stitt, Ms | Vaghela, Ms |
| Melhem, Mr | Symes, Ms | Watt, Ms |
| Noes, 15 | ||
| Atkinson, Mr | Crozier, Ms | Hayes, Mr |
| Bach, Dr | Cumming, Dr | Lovell, Ms |
| Barton, Mr | Davis, Mr | Maxwell, Ms |
| Bath, Ms | Finn, Mr | McArthur, Mrs |
| Bourman, Mr | Grimley, Mr | Ondarchie, Mr |
Motion agreed to.
Read first time.
Mr DAVIS (Southern Metropolitan—Leader of the Opposition) (21:44): I desire to move, by leave:
That pursuant to section 33 of the Parliamentary Committees Act 2003, the Public Health and Wellbeing Amendment (Pandemic Management) Bill 2021, as transmitted on message from the Legislative Assembly this day, be referred to the Scrutiny of Acts and Regulations Committee for inquiry, consideration and report by Wednesday, 17 November 2021, and that as part of their investigation the committee must seek public submissions and hold public hearings.
Leave refused.
Ms SYMES (Northern Victoria—Leader of the Government, Attorney-General, Minister for Emergency Services) (21:44): I desire to move, by leave:
That the second reading be taken forthwith.
Leave refused.
Ordered to be read second time on next day of meeting.
Windfall Gains Tax and State Taxation and Other Acts Further Amendment Bill 2021
Introduction and first reading
The PRESIDENT (21:45): I have a further message from the Assembly:
The Legislative Assembly presents for the agreement of the Legislative Council ‘A Bill for an Act to impose a windfall gains tax on the increase in the value of land resulting from a rezoning and amend the Duties Act 2000, the Essential Services Commission Act 2001, the Gambling Regulation Act 2003, the Land Tax Act 2005, the State Taxation and Mental Health Acts Amendment Act 2021, the Taxation Administration Act 1997, the Valuation of Land Act 1960, the Water Act 1989 and the Water Industry Act 1994 and for other purposes’.
Ms SYMES (Northern Victoria—Leader of the Government, Attorney-General, Minister for Emergency Services) (21:46): I move:
That the bill be now read a first time.
Motion agreed to.
Read first time.
Ms SYMES: I move, by leave:
That the second reading be taken forthwith.
Motion agreed to.
Statement of compatibility
Ms SYMES (Northern Victoria—Leader of the Government, Attorney-General, Minister for Emergency Services) (21:46): I lay on the table a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:
In accordance with section 28 of the Charter ofHuman Rights and Responsibilities Act 2006 (Charter), I make this Statement of Compatibility with respect to the Windfall Gains Tax and State Taxation and Other Acts Further Amendment Bill 2021.
In my opinion, the Windfall Gains Tax and State Taxation and Other Acts Further Amendment Bill 2021 (Bill), as introduced to the Legislative Council, is compatible with the human rights as set out in the Charter. I base my opinion on the reasons outlined in this Statement.
Overview
The Bill introduces a new windfall gains tax on the uplift in land value associated with a rezoning of land through a standalone Principal Act, being the Windfall Gains Tax Act 2021 (Windfall Gains Tax Act) and through a number of consequential amendments to the Valuation of Land Act 1960 and the Taxation Administration Act 1997 (Taxation Administration Act).
Relevantly, the Bill also makes technical amendments to the Water Industry Act 1994 (Water Industry Act) and the Water Act 1989 (Water Act), the Land Tax Act 2005 (Land Tax Act), the Gambling Regulation Act 2003 (Gambling Regulation Act) and the Taxation Administration Act.
Several of the other amendments made by the Bill do not engage the human rights listed in the Charter because they either do not affect natural persons, or they operate beneficially in relation to natural persons. However, the following amendments have been identified as potentially engaging human rights contained in the Charter:
Windfall Gains Tax Act:
• Imposition of a tax on owners of land when land or part of land is rezoned and the rezoning constitutes a windfall gains tax event.
Water Industry Act and the Water Act:
• Transfer regulation and setting of Murray Darling Basin water charges from an accredited arrangement under the Commonwealth Water Charge Rules (2010) to regulation under the Victorian framework, like all other rural and urban water charges determined by the Essential Services Commission (ESC) under Victorian legislation for water infrastructure.
Land Tax Act:
• Amendment to restrict the exemption from land tax for land that is leased for outdoor sporting, recreational, cultural or similar activities if the proceeds from the lease are applied for charitable purposes, to land owned by a charitable institution and used as such.
Gambling Regulation Act:
• Amendment to insert a new Part 4A of Chapter 6A to alter the taxation arrangements in relation to keno by imposing a tax on a keno entity’s net keno revenue during a return period, including prescribing the rate of tax applying to net keno revenue, who is liable for the tax, and providing that the Commissioner of State Revenue is to collect the tax.
Taxation Administration Act:
• Amendment to make the proposed Windfall Gains Tax Act, which establishes the windfall gains tax, a taxation law for the purposes of that Act and to enable the new tax to be administered under the same administrative framework as the other taxation laws.
• Amendment to make proposed Part 4A of Chapter 6A of Gambling Regulation Act, which establishes the keno tax, a taxation law for the purposes of that Act and to enable the new keno tax to be administered under the same administrative framework as other taxation laws.
• Amendment to Part 10 of the Taxation Administration Act to clarify objection rights in respect of Part 9A of that Act.
Human rights issues
The human rights protected by the Charter that are relevant to the Bill are:
• Freedom of movement, as protected under section 12 of the Charter which provides that every person lawfully within Victoria has the right to move freely within Victoria and to enter and leave it and has the freedom to choose where to live.
• Privacy and reputation, as protected under section 13 of the Charter which provides that a person has the right to not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with and not to have his or her reputation unlawfully attacked.
• Property rights, as protected under section 20 of the Charter which provides that a person must not be deprived of his or her property other than in accordance with law. This right is not limited where there is a law that authorises a deprivation of property, and that law is adequately accessible, clear and certain, and sufficiently precise to enable a person to regulate their conduct.
• The presumption of innocence, as protected under section 25(1) of the Charter which provides that a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.
• Protection from self-incrimination, as protected under section 25(2)(k) of the Charter which provides that person charged with a criminal offence is entitled without discrimination not to be compelled to testify against himself or herself or to confess guilt. The Supreme Court has held that this right, as protected by the Charter, is at least as broad as the common law privilege against self-incrimination. It applies to protect a charged person against the admission in subsequent criminal proceedings of incriminatory material obtained under compulsion, regardless of whether the information was obtained prior to or subsequent to the charge being laid. The common law privilege includes immunity against both direct use and derivative use of compelled testimony.
• The right to a fair hearing, as protected under section 24 of the Charter which provides that a person charged with a criminal offence or a party to a civil proceeding have the right to a fair hearing. The right to a fair hearing applies to both courts and tribunals, such as the Victorian Civil and Administrative Tribunal (VCAT). Generally, the right to a fair hearing is concerned with procedural fairness and access to a court or tribunal, rather than the substantive fairness of a decision of a court or tribunal determined on the merits of a case.
For the reasons outlined below, the Bill is compatible with each of these rights.
Windfall Gains Tax Act
Right to property: Section 20
Parts 1 to 6 of the Bill introduce a new Windfall Gains Tax Act to provide for a new windfall gains tax, imposed on owners of land on the uplift in land value associated with the rezoning of certain land. The introduction of the windfall gains tax makes the owner of land liable to pay the tax in circumstances when previously no tax was payable.
The windfall gains tax has been introduced because Planning Scheme amendments, which change the use of land, can lead to a significant increase in the value of the land, the benefits of which flow exclusively to the landowner. The Government has decided that some of the increase in land value that results from planning decisions by the Government should be captured by the Government and shared by the rest of the community, rather than accruing solely as a windfall to the private landowner.
To the extent that the new windfall gains tax is payable by a natural person, the right to property is engaged.
However, the imposition of the windfall gains tax is not arbitrary because it is precisely formulated and will be administered in accordance with the proposed provisions in the new standalone Principal Act, being the Windfall Gains Tax Act, which will be a taxation law that is adequately accessible, clear and certain, and sufficiently precise to enable affected taxpayers to inform themselves of their legal obligations and to regulate their conduct accordingly. Furthermore, taxpayers will have the protections provided by the Taxation Administration Act including rights of objection, review, appeal and recovery.
Water Industry Act and the Water Act
Right to fair hearing: Section 24
Clause 104 of the Bill inserts new Part 18 into the Water Act to preserve the current situation for fees and tariffs imposed before 1 July 2024. That is, the levying of Murray Darling Basin water charges approved or determined by the Goulburn-Murray Rural Water Corporation and the Lower Murray Urban and Rural Water Corporation as part of their current pricing cycles under Part 1B of the Water Industry Act and the Commonwealth Water Charges Rules 2010 are not subject to merits review by VCAT will continue to be exempt from the objection process (and VCAT review pathway) available under section 266 and section 271 of the Water Act.
It is noted that the engagement with section 24 is limited. The restriction will only continue to apply to the setting of tariffs, or imposition of a fee under a tariff, through the accredited arrangements under Part 1B of the Water Industry Act for the current pricing period, which will end on 30 June 2023 for the Lower Murray Urban and Rural Water Corporation and 30 June 2024 for the Goulburn-Murray Rural Water Corporation. This is intended to preserve the status quo on a transitional basis. Tariffs and fees imposed under tariffs set by these Water Corporations after these dates will be subject to the objection process (and VCAT review) through sections 266 and 271 of the Water Act.
As such, although the Bill engages section 24 of the Charter, it does not limit, restrict or interfere with the scope of that right.
Land Tax Act
Right to property: Section 20
Section 71 of the Land Tax Act provides an exemption from land tax for land that is leased for outdoor sporting, recreational, cultural or similar activities if the proceeds from the lease are applied for charitable purposes.
Section 74 of the Land Tax Act provides an exemption for land that is either used by a charitable institution exclusively for charitable purposes, or that is owned by a charitable institution and vacant but declared to be held for future use for charitable purposes.
Clause 61 the Bill amends the Land Tax Act to restrict the exemption from land tax for land that is leased for outdoor sporting, recreational, cultural or similar activities if the proceeds from the lease are applied for charitable purposes only to land owned by a charitable institution and used as such.
This limitation will result in land that is currently exempt to lose that exemption where the owner is not a charitable institution. By limiting the operation of the exemption, this amendment may engage the right to property, since the exemption will no longer extend to a natural person who is the owner of affected land.
However, this amendment is not an arbitrary deprivation of a natural person’s property; it is precisely formulated to give effect to the original policy intent of the provision which was intended to provide an exemption for land that was vested in a charitable organisation but used for a non-charitable purpose (e.g. outdoor sporting activity). The provision as it currently stands provides potential for tax avoidance by private land owners seeking to qualify for the exemption by leasing land for a nominal amount (as opposed to commercial rents under arms-length leases) to an entity which purports to use the land for outdoor sporting, recreational, cultural or similar activities.
Gambling Regulation Act
Right to property: Section 20
From 1 January 2019, the Victorian Government introduced a point of consumption (POCT) framework for wagering and betting tax to capture all wagering and betting undertaken by consumers located in Victoria. Wagering and betting entities are liable to pay wagering and betting tax to the Commissioner on their net wagering revenue from customers located in Victoria at the time of making a bet. Gambling products other than wagering and betting, such as keno games, currently sit outside the POCT framework.
Part 9 of the Bill seeks to replace the current tax arrangement for keno games with a POCT framework similar to that of the wagering and betting tax. The new keno tax is to be imposed on the net keno revenue of a keno entity.
To the extent that some amounts might not have previously been included in an entity’s taxable revenue and will result in additional tax being paid by a natural person who falls within the definition of a keno entity, the right to property may be engaged.
The imposition of the keno tax is not arbitrary because it is precisely formulated and will be administered in accordance with the proposed Part 4A of Chapter 6A of the Gambling Regulation Act, which will be a taxation law that is adequately accessible, clear and certain, and sufficiently precise to enable affected taxpayers to inform themselves of their legal obligations and to regulate their conduct accordingly. Furthermore, taxpayers will have the protections provided by the Taxation Administration Act including rights of objection, review, appeal and recovery.
Taxation Administration Act
Fair hearing—Section 24(1))
The State Taxation Acts Amendment (Relief Measures) Act 2020 amended the Taxation Administration Act by inserting Part 9A to provide the Commissioner with standing powers to give effect to emergency tax relief measures announced by the Victorian Government when issued with a ministerial direction from the Treasurer.
Part 9A enables the Commissioner to waive, defer or refund tax paid (or to do any combination thereof) to give effect to emergency tax relief announced by the Victorian Government. Part 9A of the Taxation Administration Act also includes a provision, section 95D (the Privative Clause), that prevents any action being taken against the State of Victoria, the Treasurer or the Commissioner of State Revenue in relation to anything arising out of an act or omission under Part 9A.
The policy intent behind the Privative Clause is that where the Commissioner declines to provide a refund, waiver or deferral of tax under Part 9A where a taxpayer fails to meet eligibility requirements for such relief, no action can be initiated against the Commissioner, the Treasurer or the State of Victoria in respect of that decision. This is because it would be inappropriate for decisions made under Part 9A to be subject to action (understood to cover proceedings commenced in a court of law or an administrative tribunal such as VCAT) in the nature of merits or statutory judicial review, or any other cause of action available at law.
Clause 77 of the Bill amends Part 10 of the Taxation Administration Act to clarify how the statutory right of objection operates in respect of matters arising out of Part 9A of that Act, particularly given the operation of the Privative Clause. The amendment is intended to clarify the relationship between the Privative Clause, with a taxpayer’s statutory right to seek internal merits review of an assessment or certain decisions by way of an objection under Part 10 of the Taxation Administration Act. The effect of the proposed amendment to Part 10 is that taxpayers retain their statutory right to internal merits review by way of objection; they are only prevented from relying on grounds arising out of Part 9A, so as to align the operation of Part 10 with Part 9A of the Taxation Administration Act.
To the extent that the proposed amendment may preclude a natural person from seeking internal merits review of an assessment or certain decisions on grounds pertaining to Part 9A of the Taxation Administration Act, the right to a fair hearing is engaged and may be limited.
However, any limitation on the right to a fair hearing is reasonable, proportionate and necessary to ensure the efficient administration of Part 9A emergency tax relief measures, where taxation powers are exercised in extraordinary circumstances to give effect to emergency tax relief measures that are intended to operate beneficially for eligible taxpayers.
As stated earlier, decisions made under Part 9A are made in response to significant emergencies, requiring the immediate action of the State, the Treasurer and the Commissioner to respond to urgent needs that arise in the Victorian community. The decisions made operate for the benefit of recipients of emergency taxation relief. Providing a right of objection under Part 10 in relation to such decisions adds a level of formality and revision that is unsuited and inappropriate to the context in which such decisions are made. Decisions made under Part 9A are also likely to be iterative in nature and there may be sequence of decisions with a cumulative effect.
The proposed amendment will also clarify the operation of the Taxation Administration Act by clarifying and aligning the operation of both the Privative Clause in Part 9A, and the statutory right to internal merits review under Part 10. Finally, any limitation on the right to a fair hearing is proportionate. The statutory right of objection is not being removed by this proposed amendment; the amendment operates only to place the bare minimum restriction on that statutory right as is necessary to achieve the policy intent and to resolve any uncertainty that arises between potentially inconsistent provisions within the Taxation Administration Act.
Taxation Administration Act—new taxation laws
Clause 82 of the Bill amends the Taxation Administration Act to make the Windfall Gains Tax Act a taxation law. Clause 71 of the Bill amends the Taxation Administration Act to make Part 4A of Chapter 6A of the Gambling Regulation Act a taxation law. Accordingly, the proposed Windfall Gains Tax Act and new point of consumption keno tax imposed under Part 4A of Chapter 6A of the Gambling Regulation Act will be administered as taxation laws under the Taxation Administration Act. Therefore, the following Charter rights may be engaged: freedom of movement; the right to privacy; the right to property; the right to a fair hearing; the presumption of innocence; and protection from self-incrimination.
Freedom of movement: Section 12
Investigation powers of tax officers
Part 9 of the Taxation Administration Act provides authorised officers with investigation powers to administer and enforce the taxation laws, which will include the proposed Windfall Gains Tax Act and Part 4A of Chapter 6A of the Gambling Regulation Act. The administration of windfall gains tax and the keno tax under these proposed taxation laws may therefore involve the exercise of investigative powers provided in section 73 of the Taxation Administration Act. These investigative powers may also be exercised in relation to the collection of reportable information under Part 9 of the Taxation Administration Act.
Under section 73(5) the Commissioner of State Revenue or an authorised officer exercises their power to direct a natural person to attend and give evidence in relation to that matter, Accordingly, a person’s right to move freely within Victoria may be engaged. Section 73(8) makes it an offence to refuse to comply with a direction made under section 73(5). However, a person required to attend and give evidence orally is to be paid expenses in accordance with the prescribed scale contained in the Taxation Administration Regulations 2017. It is arguable that a person’s right to move freely within Victoria may be engaged when the Commissioner of State Revenue or an authorised officer exercises their power under section 73(5).
Also, although the power to compel a person to attend a particular place at a particular time technically limits that person’s freedom to choose to be elsewhere at that time, this differs qualitatively from the types of measures that Victorian courts have regarded as engaging the right to freedom of movement, such as restrictions placed on a person’s place of residence, or ability to leave their residence, and police powers to conduct a traffic stop.
To the extent that section 73 of the Taxation Administration Act is capable of being considered to limit the right of freedom of movement, any such limit is demonstrably justified under section 7(2) of the Charter, as the Commissioner of State Revenue’s power to compel a person’s attendance to give evidence will in certain circumstances be essential to obtain the information needed for the proper administration of the Windfall Gains Tax Act and Part 4A of Chapter 6A of the Gambling Regulation Act, and for the collection of reportable information in accordance with the Taxation Administration Act.
Right to Privacy: Section 13(a)
Investigation powers of tax officers
Part 9 of the Taxation Administration Act provides the Commissioner of State Revenue and authorised officers with investigation powers to administer and enforce taxation laws, which will include the proposed Windfall Gains Tax Act and Part 4A of Chapter 6A the Gambling Regulation Act. The following investigation powers may interfere with the right to privacy, as well as the right not to impart information, which forms part of the right to freedom of expression under section 15 of the Charter:
• Section 73 of the Taxation Administration Act provides that the Commissioner of State Revenue may, by written notice, require a person to provide the Commissioner with information, produce a document or thing in the person’s possession, or to attend and give evidence under oath.
• Section 76 of the Taxation Administration Act provides that an authorised officer may, at any reasonable time, enter and search any premises, and inspect, photograph or make copies of any document on the premises.
• Section 77 of the Taxation Administration Act provides that an authorised officer may apply to a magistrate for a search warrant in relation to a premises, including a residence, if the authorised officer considers on reasonable grounds that there is, or may be within the next 72 hours, on the premises a particular thing that may be relevant to the administration or execution of a taxation law.
• Section 83 of the Taxation Administration Act provides that an authorised officer may, or may require an employee of the occupier to, operate equipment on the premises to obtain information from a storage device that the authorised officer believes, on reasonable grounds, contains information relevant to the administration of a taxation law.
• Section 86 of the Taxation Administration Act provides that an authorised officer may, to the extent it is reasonably necessary to do so for the administration or execution of a taxation law, require a person to give information, produce or provide documents and things, and give reasonable assistance, to the authorised officer.
In each provision that permits authorised officers to exercise powers of entry and search, the powers of those authorised officers are clearly set out in the Taxation Administration Act and are strictly confined by reference to their purpose. They are also subject to appropriate legislative safeguards. In particular:
• A warrantless search under section 76 of the Taxation Administration Act cannot be conducted in respect of premises used for residential purposes except with the written consent of the occupier of the premises (section 76(6)). An authorised officer may not exercise a power under section 76 unless the officer produces, on request, his or her identity card (section 76(5)).
• A search warrant issued by a magistrate under section 77 of the Taxation Administration Act must specify the premises to be searched, a description of the thing for which the search is made, any conditions to which the warrant is subject, whether entry is authorised to be made at any time or during specified hours, and must specify a day not later than seven days after its issue after which the warrant ceases to have effect (section 77(3)). Where entry under warrant or pursuant to court order occurs, an authorised officer must issue an announcement and give persons on the premises an opportunity to allow entry, unless the officer believes on reasonable grounds that immediate entry is necessary to ensure the safety of a person, or ensure the effective execution of the search warrant is not frustrated (section 78). The authorised officer is also required to identify himself or herself and must give a copy of the warrant to the occupier of the premises (section 79).
• Division 3 of Part 9 of the Taxation Administration Act includes broad secrecy obligations that prohibit tax officers (which include authorised officers) from disclosing information obtained in relation to their functions, except as permitted under the Taxation Administration Act.
The amendments also apply section 92 of the Taxation Administration Act, which permits the qualified disclosure of information obtained in the administration of a taxation law, to the proposed Windfall Gains Tax Act and Part 4A of Chapter 6A of the Gambling Regulation Act. Specifically, section 92(1) permits the disclosure of such information for several different purposes, including with consent of the person to whom the information relates, in connection with the administration or execution of a taxation law, to an authorised recipient such as the Ombudsman or a Victoria Police officer of or above the rank of inspector, or in connection with the administration of a legal proceeding arising out of a recognised law. As with the search and seizure powers of authorised officers under this Part, these permitted disclosures are strictly confined to their legitimate purposes and are subject to considerable legislative safeguards.
In particular, section 94 of the Taxation Administration Act prohibits ‘secondary disclosures’, that is, disclosure of any information provided under section 92, unless it is for the purpose of enforcing a law or protecting public revenue. Further, section 95 provides that a tax officer is not required to disclose or produce in court any such information unless it is necessary for the purposes of the administration of a taxation law, or to enable a person listed as an authorised recipient under section 92 to exercise a function imposed on the person by law.
Accordingly, to the extent that these investigation powers could interfere with a person’s privacy, any interference would not constitute an unlawful or arbitrary interference.
Property Clearance Certificates
Clause 88 of the Bill amends Division 4 of Part 9 of the Taxation Administration Act to enable the Commissioner to issue a property clearance certificate regarding Windfall Gains Tax.
As with the property clearance certificates in section 95AA of the Taxation Administration Act, only an owner, mortgagee or bona fide purchaser may apply for a property clearance certificate. The Commissioner of State Revenue is required to disclose the amount payable with respect to any charge on the land for unpaid windfall gains tax, and may also provide additional information. This may include, for example, an amount of windfall gains tax that has not yet been assessed, or information relating to another debt payable to the Commissioner of State Revenue under a revenue law with respect to that property.
Disclosure of information under Division 4 of Part 9 may also be exercised in relation to Part 4A of Chapter 6A of the Gambling Regulation Act since this will be a law for which the Commissioner of State Revenue has the power of general administration.
To the extent that information that may be disclosed in a property clearance certificate is personal information, the right to privacy is engaged. However, the right to privacy is not limited. The disclosure contemplated by this amendment will not be arbitrary, nor will it constitute unlawful interference. The disclosure of this information will be expressly permitted by and subject to the secrecy provisions of the Taxation Administration Act.
Requirement to Provide Information in Returns
Proposed Part 4A of Chapter 6A of the Gambling Regulation Act will require a person who is liable to pay keno tax to periodically lodge a return with the Commissioner of State Revenue. Section 10 of the Taxation Administration Act, as it will apply to this Part, requires a taxpayer to provide in this return all information necessary for a proper assessment of tax liability, including any further information not otherwise required under a taxation law.
It is expected that most returns will be submitted by entities, rather than individuals, and not all of the information required to be provided in a return will be personal information. However, to the extent that the collection of personal information may result in interference with a person’s privacy, any such interference will be lawful and not arbitrary. These provisions do not require that a person’s personal information be published, and only require the provision of information necessary to achieve the purpose of administering and executing this taxation law. Accordingly, they do not limit the right to privacy.
Right to property: Section 20
Investigation powers of tax officers
Part 9 of the Taxation Administration Act provides authorised officers with investigation powers to administer and enforce taxation laws, which will include the Windfall Gains Tax Act and Part 4A of Chapter 6A of the Gambling Regulation Act. The right in section 20 of the Charter is relevant to a number of powers which provide for tax officers to enter certain premises, and to seize or take items. These powers are discussed in detail below, in relation to the right to privacy.
The right in section 20 will not be limited by these powers, because any deprivation of property will occur in accordance with law. The circumstances in which inspectors or authorised persons are permitted to seize or take items or documents are provided for by clear legislative provisions, and the powers are strictly confined. The items that may be taken or seized will be relevant to and connected with enforcing compliance with the Windfall Gains Tax Act and Part 4A of Chapter 6A of the Gambling Regulation Act. For instance, a magistrate may only issue a search warrant if satisfied by evidence on oath or affidavit that there are reasonable grounds for suspecting that there is, or may be within the next 72 hours, a particular thing on the premises that may be relevant to the administration or execution of a taxation law. Further, under section 77 of the Taxation Administration Act, a document or thing may only be searched for, seized or secured against interference if it is described in the warrant issued by a magistrate.
The powers of an authorised officer include, under section 76 of the Taxation Administration Act, the power to seize a document or thing where the officer has reason to believe or suspect it is necessary to do so in order to prevent its concealment, loss, destruction or alteration. Similarly, section 83 of the Taxation Administration Act provides that an authorised officer may seize a storage device and the equipment necessary to access information on the device if the officer believes, on reasonable grounds, that the storage device contains information relevant to the administration of a taxation law and it is not otherwise practicable to access the information on the device.
Sections 76 and 83 of the Taxation Administration Act, as they will apply to the Windfall Gains Tax Act and Part 4A of Chapter 6A of the Gambling Regulation Act, do not limit the right in section 20 of the Charter because they are sufficiently confined and structured, accessible and formulated precisely such that any deprivation occurs in accordance with the law. Further, these provisions guard against any permanent interference with property where no offence has been committed. For example, the Taxation Administration Act provides that reasonable steps must be taken to return a document or thing that is seized if the reason for its seizure no longer exists (section 84), and the document or thing seized must be returned within the retention period of 60 days, unless the retention period is extended by an order of the Magistrates Court (section 85).
Fair hearing—Section 24(1))
Clauses 74, 78 and 94 of the Bill amend section 135 of the Taxation Administration Act to provide that it is the intention of sections 5, 12(4), 18(1), 96(2) and 100(4) of the Taxation Administration Act, as those sections apply after the commencement of those clauses respectively, to alter or vary section 85 of the Constitution Act 1975. These provisions preclude the Supreme Court from entertaining proceedings of a kind to which these sections apply, except as provided by those sections.
A central purpose of this Bill is to bring the Windfall Gains Tax Act and Part 6A of Chapter 4A of the Gambling Regulation Act under the Taxation Administration Act. Section 5 of the Taxation Administration Act defines the meaning of a non-reviewable decision in relation to the Taxation Administration Act, which will apply to the Windfall Gains Tax Act and Part 4A of Chapter 6A of the Gambling Regulation Act. ‘Non-reviewable’ is referred to in sections 12(4) and 100(4) of the Taxation Administration Act.
The reason for limiting the jurisdiction of the Supreme Court in relation to a compromise assessment under section 12 of the Taxation Administration Act is that agreement has been reached between the Commissioner of State Revenue and the taxpayer on the taxpayer’s liability, and the purpose of the section would not be achieved if the decision were subsequently reviewable. Section 18 of the Taxation Administration Act establishes a procedure, the adherence to which is a condition precedent to taking any further action for recovering refunds of tax. The purpose of the provisions is to give the Commissioner of State Revenue the opportunity to consider a refund application before any collateral legal action can be taken. The purpose of these provisions would not be achieved if the Commissioner of State Revenue’s actions were subject to collateral legal action before the Commissioner has had the opportunity to consider a taxpayer’s refund application.
Division 1 of Part 10 of the Taxation Administration Act establishes an exclusive code for dealing with objections, and this Division will also apply where the Commissioner of State Revenue issues an assessment in relation to the Windfall Gains Tax Act or Part 4A of Chapter 6A of the Gambling Regulation Act. This code establishes the rights of objectors in a statutory framework and precludes any collateral actions pertaining to the Commissioner of State Revenue’s assessment. The objections and appeals provisions of Part 10 of the Taxation Administration Act establish that review of assessments is only to be undertaken in accordance with an exclusive code identified in that Part. The purpose of these provisions would not be achieved if any question concerning an assessment was subject to legal action except as provided by Division 2, Part 10 of the Taxation Administration Act.
A power is provided to the Commissioner of State Revenue under section 100 of the Taxation Administration Act, which provides the Commissioner with discretion to allow an objection to be lodged even though out of time. This decision is non-reviewable to ensure the efficient administration of the Taxation Administration Act and to enable outstanding issues relating to assessments to be concluded expeditiously.
In this context, to the extent that limiting the jurisdiction of the Supreme Court may limit a person’s fair hearing rights as protected under section 24(1) of the Charter, any such limit would be demonstrably justified. The classification of certain decisions under the Taxation Administration Act as ‘non-reviewable’ is directly related to the particular statutory purpose and context of those particular decisions, and the Taxation Administration Act provides an alternative regime for dealing with objections, which is necessary for the efficient discharge of the Commissioner of State Revenue’s functions under the Taxation Administration Act, which will now include the administration of both the Windfall Gains Tax Act and Part 4A of Chapter 6A of the Gambling Regulation Act.
Presumption of innocence—(section 25(1))
Defences of reasonable excuse
The right to be presumed innocent may be considered relevant to a number of offences under the Taxation Administration Act that place an evidential burden on the defendant, and which apply to the proposed Windfall Gains Tax Act and Part 4A of Chapter 6A of the Gambling Regulation Act as a result of clauses 82 and 71 of the Bill.
As outlined above, section 73 of the Taxation Administration Act empowers the Commissioner of State Revenue to issue a written notice requiring a person to provide information, produce a document or thing, or give evidence. Section 73A provides that the Commissioner of State Revenue may certify to the Supreme Court that a person has failed to comply with a requirement of a notice issued under section 73. The Supreme Court may inquire into the case and may order the person to comply with the requirement in the notice. Section 73A(4) provides that a person who, without reasonable excuse, fails to comply with an order of the Supreme Court under s 73A(2), is guilty of an offence.
Section 88 of the Taxation Administration Act makes it an offence for a person, without reasonable excuse, to refuse or fail to comply with a requirement made or to answer a question of an authorised officer asked in accordance with sections 81 or 86 of the Taxation Administration Act.
Section 90 establishes a defence of reasonable compliance for offences relating to the investigation powers of authorised officers under Part 9 of the Taxation Administration Act. It provides that a person is not guilty of an offence if the court hearing the charge is satisfied that the person could not, by the exercise of reasonable diligence, have complied with the requirement to which the charge relates, or that the person complied with the requirement to the extent that he or she was able to do so.
Although these provisions require a defendant to raise evidence of a matter in order to rely on a defence, the provisions impose an evidential, rather than legal burden. Courts in other jurisdictions have generally taken the approach that an evidential onus on a defendant to raise a defence does not limit the presumption of innocence. The defences and excuses provided relate to matters within the knowledge of the defendant, which is appropriate in circumstances where placing the onus on the prosecution would involve the proof of a negative (which would be very difficult).
For the above reasons, these provisions of the Taxation Administration Act, as applied to the Windfall Gains Tax Act or Part 4A of Chapter 6Aof the Gambling Regulation Act, do not limit the right to be presumed innocent in section 25(1) of the Charter.
Self-incrimination—Section 25(2)(k)
Section 86 of the Taxation Administration Act, which will apply to the proposed Windfall Gains Tax Act and Part 4A of Chapter 6Aof the Gambling Regulation Act, provides that an authorised officer may, in the exercise of his or her investigative functions, require a person to give information, produce or provide documents and things, and give reasonable assistance, to the authorised officer. It is an offence to fail to comply with a requirement made or to answer a question under this section. Section 87(1) limits the right to protection against self-incrimination by providing that a person is not excused from answering a question, providing information or producing a document or thing on the ground that to do so might tend to incriminate the person or make the person liable to a penalty. Section 87(2) provides that, if a person objects to answering a question, providing information or producing a document or thing, the answer, information, document or thing is not admissible in any criminal proceeding other than proceedings for an offence against a taxation law, or proceedings for an offence in the nature of perjury.
Section 87 of the Taxation Administration Act is a reasonable limit on the right to protection against self-incrimination under section 7(2) of the Charter. The ability of an authorised officer to require a person to give information or answer questions is necessary for the proper administration of the proposed Windfall Gains Tax Act and Part 4A of Chapter 6A of the Gambling Regulation Act. To this end, the information, answers or documents obtained are only admissible in proceedings for an offence relating to the proper administration of the Windfall Gains Tax Act or Part 4A of Chapter 6Aof the Gambling Regulation Act, and section 87(2) of the Taxation Administration Act otherwise preserves both the direct use immunity and derivative use immunity.
Further, with respect to the power of an authorised officer to require the production of documents, at common law, the protection accorded to the compelled production of pre-existing documents is considerably weaker than the protection accorded to oral testimony or to documents brought into existence to comply with a request for information. This is particularly so in the context of regulated industry, where documents or records are required to be produced during the course of a person’s participation in that industry and exist for the dominant purpose of demonstrating that person’s compliance with his or her relevant duties and obligations. The duty to provide documents in this context is consistent with the reasonable expectations of these individuals as persons who operate within a regulated scheme.
There are no less restrictive means available to achieve the purpose of enabling the proper administration of the Windfall Gains Tax Act or Part 4A of Chapter 6A of the Gambling Regulation Act, as providing an immunity that applies to the offence of perjury or an offence under the Bill or the Taxation Administration Act would unreasonably obstruct the role of an authorised officer to investigate compliance with the Windfall Gains Tax Act or Part 4A of Chapter 6A of the Gambling Regulation Act. Accordingly, the relevant clauses are compatible with the right not to be compelled to testify against oneself in section 25(2)(k) of the Charter.
For these reasons, in my opinion, the provisions of the Bill are compatible with the rights contained in sections 12, 13, 20, 24, 25(1) and 25(2)(k) of the Charter.
Jaclyn Symes MLC
Attorney-General
Second reading
Ms SYMES (Northern Victoria—Leader of the Government, Attorney-General, Minister for Emergency Services) (21:47): I move:
That the second-reading speech, except for the statement on section 85(5) of the constitution, be incorporated into Hansard.
Motion agreed to.
Ms SYMES: I move:
That the bill be now read a second time.
Incorporated speech as follows:
It is my pleasure to introduce this Bill, which amends the Duties Act 2000, Essential Services Commission Act 2001, Gambling Regulation Act 2003, Land Tax Act 2005, State Taxation and Mental Health Acts Amendment Act 2021, Taxation Administration Act 1997, Water Act 1989 and Water Industry Act 1994, and will introduce a new Principal Act for the Windfall gains tax.
This Bill implements budget revenue initiatives and tax relief measures from the 2020–21 Budget and 2021–22Budget to support the Government’s strong financial management, including the introduction of a Windfall gains tax (WGT) on planning scheme amendments that rezone land, to take effect from 1 July 2023, and a land tax concession and absentee owner surcharge (AOS) exemption for build-to-rent (BTR) developments to help establish the sector in Victoria. The Bill also makes amendments to taxation and other laws to maintain the integrity and sustainability of the State’s taxation and water regulatory systems.
Windfall gains tax
When land is rezoned to expand its permitted uses and economic potential, it can result in immediate and significant increases in land value. This increase in land value is a windfall gain that accrues solely to the landowner over and above any regular income or profits earned from the land.
This Bill will implement a new Principal Act to introduce a WGT on the uplift in land value resulting from a planning scheme amendment that changes the zoning of land, applying from 1 July 2023. Taxing windfall gains allows a share of the private economic benefits from rezoning to be captured as a revenue stream, in an efficient and equitable way, so that the benefits of such a windfall can be returned to the community through greater Government investments in services and infrastructure.
The WGT will be paid by landowners and will apply to most rezonings across Victoria that have a value uplift above $100,000. Several rezonings will be excluded from the WGT including rezonings to or from the Urban Growth Zone which are in relation to Growth Areas Infrastructure Contribution (GAIC) land, recognising the GAIC’s similar purpose to the WGT; rezonings to (but not from) a public land zone; and movements between schedules in the same zone. In addition, the Bill provides the Treasurer with the power to declare, by notice published in the Government Gazette, rezonings to specific zones to be an excluded rezoning. I intend to use this power to exclude rezonings to any Rural Zone, other than the Rural Living Zone, prior to the commencement of the tax. This exemption recognises that agricultural land may be rezoned from one Rural Zone to another, but continue to be farmed in the same way.
To ensure landowners and purchasers have time to adjust, rezonings that occur on land that is subject to a contract for consideration or option arrangement entered into by 15 May 2021, where the contract or arrangement is yet to settle at the time of the rezoning, excluding development agreements, will not be subject to the WGT. Similarly, proponent-led rezonings which were well-progressed and had incurred significant costs when the WGT was announced on 15 May 2021 will not be subject to the tax.
The WGT will be calculated on the ‘taxable value uplift’ in land from a rezoning, being the difference in the capital improved value of the land before and after the rezoning takes effect. The pre rezoning value will be drawn from the most recent valuation in force for the land under the Valuation of Land Act 1960 (VLA) while the post-rezoning value will be determined through a supplementary valuation certified by the Valuer-General Victoria.
The WGT will only apply to value uplifts in excess of $100,000. For taxable value uplifts of more than $100,000 but less than $500,000, the WGT payable will be 62.5 per cent of the uplift in excess of $100,000, allowing the effective tax rate to phase in up to $500,000. For uplifts of $500,000 or more, a flat rate of 50 per cent of the taxable value uplift is payable. Grouping and aggregation provisions will apply so that properties owned by the same owner or group of owners and rezoned under the same planning scheme amendment effectively receive the benefit of one threshold. These provisions will operate for related corporations and related trusts on similar terms to grouping for land tax purposes.
Exclusions and waivers will apply for some types of land. Residential land with a residential dwelling, including primary production land, will receive a WGT exemption for up to two hectares of residential landholdings rezoned by the same planning scheme amendment. For residential landholdings of greater than two hectares, the value uplift will be proportionately reduced: for example, if the total residential land area is five hectares, the value uplift will be reduced by two-fifths, or 40 per cent, for the purpose of calculating the WGT. In addition, charitable institutions will be eligible for a waiver of WGT if the relevant land remains owned and occupied by a charity exclusively for charitable purposes for 15 years after the rezoning. There will also be an exemption from the WGT in relation to rezonings to correct obvious or technical errors in the Victoria Planning Provisions or a planning scheme, with provision for deferred or previously paid WGT to be reassessed or refunded as appropriate.
Recognising that some owners will not have the capacity to pay the whole WGT assessment at the time of rezoning, all owners will have the ability to defer payment with interest for up to 30 years, or until the property is sold or transferred, whichever occurs first. The applicable interest rate will be the 10-year Victorian Government bond rate. Certain transactions will not cease the deferral, including transfers from a deceased person to a personal representative, dutiable transactions for no consideration, relevant acquisitions of a further interest in the land and pro-rata increases of all unitholders or shareholders in the land.
The WGT will be administered by the Commissioner of State Revenue (Commissioner) as a taxation law under the Taxation Administration Act 1997 (TAA), enabling the TAA’s general provisions to apply in relation to tax collection, compliance, recovery, objections and other administrative matters. Owners will be able to object to the valuations used to calculate the WGT. Such objections will be determined by the Valuer-General on referral from the SRO.
To provide a robust mechanism for the recovery of tax liabilities, unpaid or deferred WGT will also be made a first charge on the relevant land. The Bill provides for the inclusion of WGT liabilities on property clearance certificates issued to purchasers under the TAA. WGT information will also be incorporated into vendor statements under section 32 of the Sale of Land Act 1962 in a similar manner to how land tax liabilities are reported.
Build-to-rent developments
In the 2020–21 Budget, the Government announced that BTR developments would become eligible for a land tax concession and exemption from the AOS from 2022 until 2040 as part of the Big Housing Build package. The Bill amends the Land Tax Act 2005 to expand this key initiative so that the land tax concession and AOS exemption will be provided for a full 30 years for eligible BTR projects that commence operation between 1 January 2021 and 31 December 2031. The concession from land tax will be applied as a 50 per cent reduction in the taxable value of the land, while the AOS exemption will apply to the subject land only (and not to any other landholdings). Both benefits will be available on an apportioned basis for mixed-use developments with a BTR component.
Eligible BTR developments will be new or substantially renovated buildings with at least 50 self-contained dwellings, held within a unified ownership structure and managed by a single entity. Dwellings must be suitable for occupancy on or after 1 January 2021 and before 1 January 2032, as evidenced by the issue of an occupancy permit within the relevant dates. The dwellings must also be available to rent under a range of residential lease terms. Each BTR development will be entitled to benefits for a single continuous period of up to 30 years. The benefits are available on the condition that the development satisfies the eligibility criteria for a continuous period of at least 15 years. If there is a change in circumstances that means the 15-year eligibility requirement is not satisfied, a special liability called BTR special land tax will be triggered, the purpose of which is to impose a financial charge that reflects (but not equals) the year-on-year financial advantage that accrued to the owner because of the BTR tax benefits. The formula for BTR special land tax utilises a variable interest rate based on the Commonwealth Government’s 10-year bond rate and a published corporate BBB credit spread. Changes in circumstances after the 15-year eligibility requirement will not result in a BTR special land tax liability, but will cease the BTR benefits going forward.
Private gender-exclusive and gender-restrictive clubs
In line with the 2021–22 Budget announcement, the Bill amends the Land Tax Act 2005 to remove the land tax exemption for private gender-exclusive and gender-restrictive clubs. Clubs are currently eligible for a land tax exemption if they are not-for-profit clubs which provide for the social, cultural, recreational, literary or education interests of their members. The amendment removes the exemption for gender-exclusive clubs—clubs that exclude persons from membership on the basis of sex or gender identity—while giving the Commissioner discretion to grant an exemption to gender-exclusive clubs that demonstrate a community benefit. If the club removed its membership restrictions on or after 20 May 2021, when the 2021–22 Budget was delivered, it is classified as a gender-restrictive club, and is not eligible for an exemption unless the Commissioner is satisfied the club has genuinely opened membership to all sexes and gender identities.
Keno tax
The Bill amends the Gambling Regulation Act 2003 to reform the taxation of keno games to a point of consumption framework from 15 April 2022, as announced in the 2021–22 Budget. Keno is currently provided in Victoria by a single keno licensee and is taxed at 24.24 per cent of keno revenue per week. In recent years, the popularity of online keno has grown. Victorians are now able to play keno over the Internet with keno operators based intestate. The increase in the prevalence of online keno mirrors trends in the wagering and betting sector that led the government to introduce a point of consumption framework for wagering and betting tax, where operators pay tax on their net wagering revenue from customers located in Victoria at the time of making the bet. The framework ensures all licensed providers of keno products pay their fair share of tax on revenue from Victorian customers, regardless of where the provider is located or licensed. As part of the reforms, the administration of keno tax will be transferred to the SRO. Keno entities will be required to register with the SRO and lodge monthly returns. The rate of tax will be maintained at the existing rate of 24.24 per cent, payable on the monthly net keno revenue from customers located in Victoria at the time of playing the keno game. Consequential amendments to the TAA bring the point of consumption keno tax within the scope of the TAA’s administration and enforcement provisions.
Other taxation amendments
The Bill amends the Duties Act 2000 to enable an exemption from motor vehicle duty to apply to private vehicles converted for wheelchair access within 12 months after registration or transfer of the vehicle. Currently, an exemption from duty applies to private motor vehicles that have been specially converted to provide wheelchair access and are to be used for conveying an incapacitated person. At the moment, the exemption is only available if the conversion occurs prior to the application for registration or transfer of the vehicle, not where the vehicle is purchased first and then converted. The amendment will better reflect the intent of the exemption to provide duty relief to people with a disability, including their families or carers, who need to have motor vehicles specially modified for wheelchair use.
The Bill amends the Land Tax Act 2005 to restrict the land tax exemption for land owned by charitable institutions to land that is both used and occupied by charities exclusively for charitable purposes. The Act currently provides an exemption for land owned and used by a charity exclusively for charitable purposes, and for vacant land owned by a charity and declared to be held for future charitable use. The recent decision of the Supreme Court of Victoria in University of Melbourne v Commissioner of State Revenue [2021] VSC 156 has broadened the intended scope of the exemption for charities. In that case, the leasing of land to a commercial tenant to provide student accommodation was found to be a use by the University exclusively for charitable purposes. To address this unintentional broadening of the exemption, the amendment restricts the exemption to cases where the charity both uses and occupies the land exclusively for charitable purposes, and not any land or part of land owned by the charity but used or occupied by a commercial or business entity. The amendment also provides that eligibility for the exemption on vacant land declared to be held for future charitable use and occupation is subject to a two-year time limit. These amendments do not impact other exemptions from land tax, such as those for Ministerial or Crown land, and it is provided that both exemptions can be apportioned where land owned by a charity has mixed uses.
The Bill further amends the exemption for land leased for sporting, recreational, cultural or similar activities in the Land Tax Act 2005 to require that the land must be owned by a charity to attract the exemption. This is in order to prevent non-charitable landowners from taking advantage of the existing exemption, which only requires the proceeds from the lease to be applied exclusively for charitable purposes. The amendments come into operation on the day after the Bill receives Royal Assent and applies from the 2022 land tax year onwards.
The Bill amends the TAA to confirm that a taxpayer cannot object to an assessment or decision on any ground relating to emergency tax relief measures. In April 2020, the TAA was amended to provide the Commissioner with standing powers to give effect to emergency tax relief measures as directed by the Treasurer. This allows the SRO to deliver urgent and immediate tax relief to the community in response to emergencies such as natural disasters or pandemics. The TAA currently provides that no action lies against the State, the Treasurer or the Commissioner in relation to anything arising out the operation of the emergency tax relief provision. This prevents exploitation of the provisions by those not entitled to tax relief or attempting to pursue disputes over tax liabilities outside of the established objection and refund processes. Nonetheless, the current provision leaves it open to a taxpayer to lodge an objection to an assessment on grounds relating to the denial of emergency tax relief measures. The Bill therefore amends the TAA to confirm that a taxpayer cannot object to an assessment or decision on any ground relating to the emergency tax relief measures, to put the intended effect of the provision beyond doubt.
The Bill further amends the emergency tax relief provisions in the TAA to provide for tax offsets in relation to emergency tax relief measures. Specifically, the amendment empowers the Commissioner to offset a refund, issued because of an emergency tax relief measure, against another tax liability of the applicant. This is a practical and efficient means of administering emergency tax relief measures, including for example where an applicant has failed to provide their banking details and it is not administratively feasible to issue a cheque.
The TAA is also amended to authorise the Commissioner to recover administrative overpayments that are unable to be recovered with existing tax assessment powers. Administrative overpayments occur when the Commissioner makes a payment to a person to which the person is not entitled under a taxation law. The existing TAA contains powers of assessment, reassessment and investigation aimed at the recovery of tax, but there is doubt over whether these provisions allow the Commissioner to recover overpayments of a mistaken or administrative nature. This means the Commissioner only has the option to pursue inefficient and complex common law remedies, which are not available in some instances. The amendment provides that administrative overpayments are debts due to the State and provides a clear statutory basis for their recovery. The amendment also requires interest to be imposed on a failure to repay an amount, in accordance with the applicable rate under the Penalty Interest Rates Act 1983.
The Bill includes minor statute law revisions to the Duties Act 2000 and the Land Tax Act 2005 that update legislative references, headings and definitions for accuracy and currency. The Bill further amends the State Taxation and Mental Health Acts Amendment Act 2021 to rectify errors in certain formulas for calculating the mental health and wellbeing surcharge, which comes into operation on 1 January 2022 and is implemented via that Act as amendments to the Payroll Tax Act 2007.
Water amendments
The Bill amends the Water Industry Act 1994, and consequentially the Essential Services Commissioner Act 2001 and Water Act 1989, to allow price regulation of bulk water services and other water storage, delivery and drainage services in the Murray Darling Basin (Basin) by the Essential Services Commission (ESC) under the Victorian regulatory pricing framework. Currently, the Water Charge Rules 2010 (Cth) apply to rural Victorian Water Corporations operating in the Basin. The Australian Competition and Consumer Commission (ACCC) determines Basin charges. The ESC, as Victoria’s independent economic regulator, undertakes and implements pricing determinations of these Basin charges under accreditation arrangements approved by the ACCC. When the Commonwealth undertook significant reform to its rules in 2019, it was intended that regulatory oversight would revert back to regulation under Victorian water legislation. As such, the amendments ensure the appropriate state arrangements are in place so that regulatory oversight of Basin charges in Victoria can continue to be undertaken by the ESC under Victoria’s regulatory pricing framework. Following the conclusion of the current regulatory pricing periods, Victorian laws will govern charges levied by Victorian Water Corporations in the Basin, like all other rural and urban water charges determined by the ESC under Victorian legislation. The amendments ensure that Victoria is continuing to protect the long-term interests of its rural water customers through a consistent and uniform approach to regulation of the Victorian water sector and is consistent with pricing principles established under the National Water Initiative.
Jurisdiction of the Supreme Court of Victoria
I draw the members’ attention specifically to clauses 74, 78 and 94 of the Bill. These clauses of the Bill propose to limit the jurisdiction of the Supreme Court to ensure that the legislative regime under the TAA applies to the WGT and the keno tax in the same way as it does in relation to any other taxation law, and to the extent that the amendment to the TAA regarding objections to emergency tax relief measures affects the TAA’s existing legislative regime for objections, reviews and appeals. Accordingly, I provide a statement under section 85(5) of the Constitution Act 1975 of the reasons for altering or varying that section by this Bill.
I commend the Bill to the house.
Section 85(5) of the Constitution Act 1975
Ms SYMES: I wish to make a statement under section 85(5) of the Constitution Act 1975 of the reasons for altering or varying that section of the Windfall Gains Tax and State Taxation and Other Acts Further Amendment Bill 2021.
Section 85 of the Constitution Act 1975 vests the judicial power of Victoria in the Supreme Court and requires a statement to be made when legislation that directly or indirectly repeals, alters or varies the court’s jurisdiction is introduced. Clauses 78, 74 and 94 of the bill insert new subsections (9), (10) and (11) into section 135 of the Taxation Administration Act 1997 to provide that it is the intention of sections 5, 12(4), 18(1), 96(2) and 100(4) of the Taxation Administration Act 1997, as those sections apply after the commencement of those clauses respectively, to alter or vary section 85 of the Constitution Act 1975.
Part 9 of the bill amends the Gambling Regulation Act 2003 to provide for a new keno tax imposed on a keno entity’s revenue. The bill provides that the proposed part 4A of chapter 6A of the Gambling Regulation Act 2003 and any regulations made under the act for the purposes of that part are a taxation law under the Taxation Administration Act 1997. Division 2 of part 12 of the bill makes consequential amendments to the Taxation Administration Act 1997 to enable the keno tax to be administered under the Taxation Administration Act 1997 and any regulations made under it.
Parts 1 to 6 of the bill introduce a new Windfall Gains Tax Act 2021 to provide for a new windfall gains tax imposed on owners of land on the uplift in land value associated with a rezoning of land. The bill provides that the proposed Windfall Gains Act 2021 and any regulations made under that act for the purposes of that part are a taxation law under the Taxation Administration Act 1997. Division 6 of part 12 of the bill makes consequential amendments to the Taxation Administration Act 1997 to enable the windfall gains tax to be administered under the Taxation Administration Act 1997 and any regulations made under it.
Division 4 of part 12 of the bill amends part 10 of the Taxation Administration Act 1997 to clarify limitations on the grounds of objection that apply in respect of matters arising out of part 9A of that act.
The Supreme Court’s jurisdiction is altered to the extent that the Taxation Administration Act 1997 provides for certain non-reviewable decisions and establishes an exclusive code that prevents proceedings concerning an assessment or refund or recovery of tax being commenced except as provided by it. It is desirable that the legislative regime under the Taxation Administration Act 1997 applies to the keno tax and the windfall gains tax in the same way as it does to other taxes administered under the Taxation Administration Act 1997. Accordingly, in order to ensure that the jurisdiction of the Supreme Court is limited in relation to the keno tax and windfall gains tax in the same way as it is in relation to other forms of Victorian taxes, it is necessary to provide that it is the intention of this bill for the relevant provisions of the Taxation Administration Act 1997 to apply in the administration of the proposed keno tax and windfall gains tax, and for the jurisdiction of the Supreme Court to be altered accordingly.
Section 5 of the Taxation Administration Act 1997 defines the meaning of non-reviewable decision in relation to that act, which will also apply to the keno tax and windfall gains tax. No court, including the Supreme Court, has jurisdiction or power to entertain any question as to the validity or correctness of a non-reviewable decision.
Section 12(4) of the Taxation Administration Act 1997 provides that the making of a compromise assessment is a non-reviewable decision. Similarly, section 100(4) provides that a decision by the commissioner of state revenue not to permit an objection to be lodged out of time is a non-reviewable decision. Decisions may be made under section 12(4) or section 100(4) in relation to the collection of the keno tax and the windfall gains tax.
Section 18(1) of the Taxation Administration Act 1997 prevents proceedings being commenced in the Supreme Court for the refund or recovery of a tax except as provided in part 4 of the Taxation Administration Act 1997. As the keno tax and the windfall gains tax will be taxes for the purposes of section 18(1), proceedings for its refund or recovery will be similarly limited.
Section 96(2) of the Taxation Administration Act 1997 prevents a court, including the Supreme Court, considering any question concerning an assessment of a tax except as provided by part 10 of the Taxation Administration Act 1997. The bill amends part 10 of the Taxation Administration Act 1997 to clarify limitations on the grounds of objection that apply in respect of matters arising out of part 9A of that act, which ultimately prevents the Supreme Court from considering any question concerning an assessment of tax or decision amenable to objection that is challenged on grounds pertaining to part 9A of the Taxation Administration Act 1997. Also, as the keno tax and the windfall gains tax are taxes for the purposes of section 96(2), proceedings in relation to the assessment of keno tax or windfall gains tax are limited in accordance with section 96(2).
In order to ensure that the jurisdiction of the Supreme Court is limited in relation to the keno tax and windfall gains tax in the same way as it is in relation to other taxes, it is necessary to provide that it is the intention of sections 5, 12(4), 18(1), 96(2) and 100(4) of the Taxation Administration Act 1997 to vary or alter section 85 of the Constitution Act 1975.
I commend the bill to the house.
Mr ONDARCHIE (Northern Metropolitan) (21:52): Well done, Minister. I move, on behalf of my colleague Mr David Davis:
That debate on this matter be adjourned for two weeks.
Motion agreed to and debate adjourned for two weeks.
Sex Work Decriminalisation Bill 2021
Introduction and first reading
The PRESIDENT (21:53): I have a further message:
The Legislative Assembly presents for the agreement of the Legislative Council ‘A Bill for an Act to decriminalise sex work, to repeal the Sex Work Act 1994, to provide for a new protected attribute in the Equal Opportunity Act 2010, to make consequential and related amendments to other Acts and for other purposes’.
Ms SYMES (Northern Victoria—Leader of the Government, Attorney-General, Minister for Emergency Services) (21:53): I move:
That the bill be now read a first time.
Motion agreed to.
Read first time.
Ms SYMES: I move, by leave:
That the second reading be taken forthwith.
Motion agreed to.
Statement of compatibility
Ms SYMES (Northern Victoria—Leader of the Government, Attorney-General, Minister for Emergency Services) (21:53): I lay on the table a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:
In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter), I make this statement of compatibility with respect to the Sex Work Decriminalisation Bill 2021 (the Bill).
In my opinion, the Bill as introduced to the Legislative Council is compatible with the human rights protected by the Charter. I base my opinion on the reasons outlined in this statement.
Overview of the Bill
The main objective of the Bill is to decriminalise sex work and transition the sex work industry into existing regulatory environments.
The Bill decriminalises sex work by repealing the Sex Work Act 1994 (SW Act) and removing offences and criminal penalties for participating in consensual sex work, including partially abolishing street-based sex work offences and repealing public health offences associated with sex work. The Bill will facilitate regulation of the sex work industry through existing specialist responsible agencies, including WorkSafe, Department of Health and the Victorian Commission for Gaming and Liquor Regulation (VCGLR).
The Bill will:
• repeal the SW Act in full;
• abolish the current sex work industry regulatory framework, including dismantling the sex work service provider licensing system under the SW Act and remove registration requirements for exempt small owner operators;
• decriminalise street-based sex work in most locations, by repealing offences under the SW Act and creating a new offence under the Summary Offences Act 1966 (Summary Offences Act);
• repeal public health offences mandating STI testing and safer sex practices;
• re-enact offences relating to children and coercion from the SW Act to the Crimes Act 1958 (Crimes Act);
• introduce anti-discrimination protections for sex workers under the Equal Opportunity Act 2010 (EO Act);
• develop a consistent, principles-based definition of ‘commercial sexual services’ to be included across all relevant legislation;
• repeal controls and restrictions on advertising sex work services under the SW Act and re-enact a power to make regulations pertaining to advertising in the Summary Offences Act; and
• allow sex work businesses that also provide sexually explicit entertainment to apply for a liquor licence under the Liquor Control Reform Act 1998 (LCR Act).
Amendments by reform topic
For the purposes of analysis against the Charter, the provisions of the Bill were categorised by reform topic:
A. Cumulative impact of reform on women and LGBTIQ+ communities
B. Street sex work offences
C. Public health offences for sex work
D. Offences relating to children
E. Offences relating to forced work
F. Anti-discrimination protections
G. Sex work advertising controls
H. Sex work licensing and registration system
I. Planning controls and powers to proscribe brothels
Human Rights Issues
The Bill impacts the following human rights under the Charter:
• recognition and equality before the law (section 8)
• protection from torture and cruel, inhuman and degrading treatment (section 10)
• freedom from forced work (section 11)
• freedom of movement (section 12)
• privacy and reputation (section 13)
• freedom of expression (section 15)
• protection of families and children (section 17)
• property rights (section 20)
• rights in criminal proceedings (section 25)
For the following reasons, I am satisfied that the Bill is compatible with the Charter and promotes the protection of human rights. Where rights are limited by the Bill, the limitations already exist in the current legislative framework and those limitations are reasonable and demonstrably justified having regard to the factors in section 7(2) of the Charter.
Analysis of Reforms and Human Rights Implications
A. Cumulative impact of reform on women and LGBTIQ+ communities
• recognition and equality before the law (section 8 of the Charter)—promoted
The repeal of the SW Act and controls for the sex work industry generally promotes the right to equality before the law (section 8) for women and LGBTIQ+ communities. This is a cumulative impact of the amendments outlined to street sex work offences (section B), public health offences (section C), sex work advertising controls (section G), sex work licensing and registration system (section H) and planning controls (section I).
The protection of the right to recognition and equality before the law reflects that every person holds the same human rights by virtue of being human, rather than because of a particular characteristic or membership of a particular group. Sex workers face discrimination on the basis of their occupation in a number of areas, including access to goods and services, housing and accommodation, seeking other employment and access to justice.
This has a disproportionate impact on women and LGBTIQ+ communities, who have historically made up a large portion of this workforce. Decriminalising sex work and repealing the sex work licensing system will have the effect of destigmatising and legitimising sex work and thereby ultimately reducing discrimination against these communities, thereby promoting section 8 of the Charter.
Further, repealing the laws which criminalise undertaking sex work will enable women and LGBTIQ+ people who work in the sex industry to better access the rights and protections afforded to other community members. Decriminalisation is expected to enhance their ability to exercise other Charter rights by increasing the likelihood that they report instances of violence, mistreatment, or suspected trafficking out of fear of prosecution.
The Bill will also promote the right to equality before the law to sex workers more broadly through introducing a new protected attribute to the EO Act, discussed below (section H). However, section 8 of the Charter will not be engaged in respect of promoting equality on the basis of the new protected attribute (‘profession, trade or occupation’) until after the Bill’s proposed amendments are in force.
B. Street sex work offences
• privacy and reputation (section 13 of the Charter)—promoted
• recognition and equality before the law (section 8 of the Charter)—promoted
• freedom of movement (section 12 of the Charter)—potentially limited, promoted in some circumstances
• freedom of thought, conscience, religion and belief (section 14 of the Charter)—potentially promoted
• protection of families and children (section 17 of the Charter)—potentially promoted
The Bill decriminalises consensual sex work between adults, including by abolishing street-based sex work offences except where the sex work occurs at or near places of worship and certain places where children frequent and at specified times.
A new offence, to be located in the Summary Offences Act, partially re-enacts existing offences in the SW Act and imposes higher penalties for street-based sex work which occurs in or near a place of worship, a hospital, a school, education and care service premises, children’s services centre or any other place where children may gather. The new offence will apply during the hours of 6a.m. to 7p.m. and on prescribed religious days.
Decriminalising the commercial exchange of sexual services between consenting adults will promote the right to privacy and reputation (section 13), a right which is connected to concepts of personal autonomy and human dignity. Decriminalising sex work removes the power of government to dictate the terms upon which consenting adults can have sexual relations noting that these decisions concern bodily autonomy and should be considered private decisions. Decriminalising sex work also allows sex workers and others associated with the industry to make free and fair choices about their participation in a lawful industry.
While the retention of an offence in relation to street-based sex work at or near places of worship and certain places where children frequent may limit the ability of sex workers to conduct employment activities in areas of their choosing, thereby potentially limiting their right to freedom of movement (section 12), this limitation would be considered proportionate, reasonable and necessary to promote the protection of children (section 17) and the right to practice religion (section 14). Retaining the offence will ensure that community standards in relation to the protection of children and preservation of religious spaces is met. By including prescribed hours and days to the offence, the right is limited in the least restrictive way to promote the protection of children and right to practice religion. Further, any potential limitation on freedom of movement in this way is not one which restricts the rights of sex workers to access educational, health or social services, or to exercise cultural rights.
The Bill will also repeal Part 2A of the SW Act (sections 21B to 21K), which allows a police officer who suspects that a person is loitering in, frequenting or in a public place to solicit or invite others to offer sex work services within a declared area to give that person a notice banning the person from the declared area for a time which does not exceed 72 hours. This only applies to clients, not workers.
Section 12 of the Charter provides that every person lawfully within Victoria has the right to move freely within Victoria, to enter and leave it and the freedom to choose where to live within Victoria. Repealing Part 2A of the SW Act promotes the right to freedom of movement (Section 12) by removing a broad power to restrict the movement of persons inviting or soliciting sex work regardless of whether or not they are working or engaging in certain conduct. To ensure the continued protection of children (section 17) and right to practice religion (section 14), an offence is retained in relation to street-based sex work at or near places of worship and places where children frequent, as noted above.
Although section 16 of the SW Act, which provides penalties for offensive behaviour towards sex workers, is repealed, the rights of street-based sex workers will continue to be supported through existing protections in section 17 of the Summary Offences Act.
C. Public health offences for sex work
• recognition and equality before the law (section 8 of the Charter)—promoted
• privacy and reputation (section 13 of the Charter)—promoted
• freedom from cruel, inhuman or degrading treatment (section 10 of the Charter)—promoted
Under the SW Act, it is currently an offence for sex workers and clients not to adopt safer sex practices, for an infected sex worker to be permitted to work in a brothel and for sex workers to work while infected. These offences are intended to promote public health, but make assumptions about sex work and sexually transmitted diseases that is not based on evidence. Evidence indicates that Australian and Victorian sex workers have comparatively higher rates of compliance with safer sex practices and lower rates of sexually transmitted infections than the general population.
In addition, existing criminal laws that make it an offence to recklessly cause (or engage in conduct that may cause) serious injury, including infecting someone with a sexually transmitted disease, already apply to the sex work industry.
To address sex work stigma and treat the sex work industry in an equivalent manner to other industries, the Bill is repealing public health offences from the SW Act. Repealing these offences will promote the right to recognition and equality before the law (section 8) for women and LGBTIQ+ communities who make up the historical majority of sex workers by ensuring they are not needlessly subject to different workplace health and safety laws that are not evidence-based.
The repeal of these offences will also promote the right to privacy and reputation (section 13), as well as protection from torture and cruel, inhuman or degrading treatment (section 10), as sex workers will no longer be required to undergo mandatory sexual health testing which reinforces the harmful ‘vectors of disease’ stereotype, frames sex workers as a risk to the wider public, fuels sex work stigma and is used to justify discriminatory practices.
D. Offences relating to children
• rights in criminal proceedings (section 25 of the Charter)—relevant
• protection of families and children (section 17 of the Charter)—promoted
• freedom from forced work (section 11 of the Charter)—promoted
• privacy and reputation (section 13 of the Charter)—relevant
• freedom of movement (section 12 of the Charter)—limited
• recognition and equality before the law (section 9 of the Charter)—limited
Section 17(2) of the Charter recognises that every child has the right, without discrimination, to such protection as is in their best interests and is needed by them by reason of being a child. The Bill promotes the protection of children (section 17) under the Charter by preserving criminal offences relating to the protection of children by re-locating relevant offences from the SW Act to Part I Division 1 Subdivision (8FAA) of the Crimes Act and Part I Division 3A of the Summary Offences Act with necessary amendments. The preserved offences are as follows:
• Causing or inducing a child to take part in commercial sexual services, adapted from Section 5 SW Act;
• Obtaining a commercial benefit, payment or reward for commercial sexual services provided by a child, adapted from Section 6 SW Act;
• Agreement for provision of commercial sexual services by a child, adapted from Section 7 SW Act;
• Allowing a child to take part in commercial sexual services, adapted from Section 11 SW Act; and
• Offence to allow child on premises used for commercial sexual services, adapted from Section 11A SW Act.
The Bill also expands the definition of ‘commercial sexual services’ in the Crimes Act to ensure persons (including children) are protected from sexual exploitation regardless of:
• the type of sex work undertaken (including both online, in person, and the number of sexual activities that may cause arousal without penetration, nudity or masturbation),
• the type of commercial payment, benefit or reward received for the service (including money, drugs of dependence, and gifts), or
• the person to whom the commercial benefit, payment or reward was provided to (including both the service provider and any other person).
I acknowledge that this definition may consequently broaden the range of conduct caught by offences currently contained in both the SW Act and the Crimes Act. However, given that the conduct proscribed by the offences involve child sex and/or sexual acts, violence, intimidation, blackmail, coercion, detention, misinformation and drugs, expanding the kinds of sexual activity that fall within the ambit of the offences is consistent with the policy intent of the offences. Put another way, a person must engage in some other criminal activity to be caught by the offence, and so the breadth of ‘commercial sexual services’ should not result in any unfair criminal sanction. Ultimately, this broadened definition is justifiable based upon the importance of ensuring that all forms of forced sex work is prohibited to promote the right under section 11 of the Charter not to be held in slavery or servitude and not to be made to perform forced or compulsory labour.
Under each of the offences relating to children in the Bill, it is a defence for the accused to prove that, having taken all reasonable steps to find out the age of the person concerned, the accused believed on reasonable grounds, at the time the offence is alleged to have been committed, that the person concerned was aged 18 years or more.
The right to a presumption of innocence (section 25) is a fundamental tenet of the common law and is tied to the principle that the prosecution bears the burden of proof and must prove guilt beyond reasonable doubt. Applying strict liability or absolute liability to an offence or reversing the onus of proof, can be considered a limitation of the presumption of innocence (section 25) because a defendant can be found guilty, or an element of the offence proven, without the prosecution being required to prove fault. This essentially increases the risk that an innocent person could be convicted of the offence. The availability of this ‘reasonable steps’ statutory defence substantially mitigates the risk of an innocent person being convicted of causing or inducing a child to take part in an act of sex work.
Some provisions in these re-enacted provisions include a limitation on the rights of an accused in criminal proceedings (section 25) because it interferes with the principle that a person is presumed innocent until proved guilty according to law and effectively reversing the onus of proof. These are outlined below.
The Bill states that in the circumstance, if it is proved that the accused was residing with a sex worker who was a child, the accused must be presumed to be guilty of the offence in the absence of proof to the contrary. This is adapted from section 6(3) of the SW Act. This limitation of the right to a presumption of innocence (section 25) is justified due to the seriousness of the crime of obtaining payment for sexual services provided by a child, the particular vulnerability of children and need for children to be protected from predatory behaviour, and the particular difficulty for the prosecution to meet the legal burden of proving the offences. The availability of the ‘reasonable steps’ statutory defence to an accused, outlined above, also substantially limits the risk that an innocent person could be convicted of the offence.
The Bill states that a person who owns or occupies any premises or who manages or assists in the management of any premises who allows a child to enter or remain on the premises for the purpose of taking part in an act of sex work, whether as the sex worker or as the client or in any other capacity, the accused must be presumed to be guilty. This is adapted from section 11(1) of the SW Act. There are two defences to this, which are the ‘all reasonable steps’ defence outlined above and satisfying the court on the balance of probabilities that the accused did not know, and could not reasonably have known, that a child was on those premises for that purpose at the time the offence is alleged to have been committed.
This limitation of the right to a presumption of innocence (section 25) is justified as it only relates to premises used for the purposes of the operation of a brothel where a higher standard of vigilance is warranted from the accused, the seriousness of the crime of allowing children to take part in sex work, the particular vulnerability of children and need for children to be protected from predatory behaviour, and the particular difficulty for the prosecution to meet the legal burden of proving the offence. The availability of the ‘reasonable steps’ statutory defence to an accused, outlined above, and additional defence for circumstances where the accused could not have reasonably known that the child was at the premises, also substantially limits the risk that an innocent person could be convicted of the offence.
Accordingly, I consider an appropriate balance has been struck between the creation of absolute liability offences, in which the accused would be liable irrespective of what reasonable efforts they had taken to ascertain the person’s age, and offences which include a requirement that actual knowledge of the person being underage be proven in light of the importance of protecting children (the latter being very difficult to prosecute).
The Bill prohibits children over 18 months from entering or remaining in a brothel for any purpose whatsoever. This is adapted from section 11A of the SW Act. This is a limit on the freedom of movement (section 12) and right to equality before the law (section 8) of children over 18 months but one that is proportionate to the need to protect children (section 17) by preventing children from being exposed to sex work or being exploited.
The Bill provides that if a police officer has reason to believe that a person in a brothel appears to be under the age of 18 years, they may demand particulars of the person’s age and request evidence if they consider the particulars supplied to be false. This is adapted from section 59(1) of the SW Act. A person who refuses or fails to give particulars, gives false particulars or supplies any false evidence is liable to a penalty. This offence impacts the right not to have one’s privacy unlawfully or arbitrarily interfered with (section 13) by requiring individuals to disclose personal information to a police officer. However, there is no limitation on this right, since the interference in this case is lawful and not arbitrary, being only exercisable where a police officer has reason to believe a person in a brothel is under the age of 18 years. Further, the interference with the right to privacy is justified to ensure the protection of children (section 17) from exposure to sex work or sexual exploitation.
E. Offences relating to forced work
• freedom from forced work (section 11 of the Charter)—promoted
Section 11 of the Charter recognises that a person must not be held in slavery or servitude and must not be made to perform forced or compulsory labour. The Bill promotes freedom from forced work (section 11) by preserving criminal offences relating to coercion by re-locating these offences to Part I Division 1 Subdivision (8FAA) of the Crimes Act with necessary amendments. The preserved offences are as follows:
• Forcing person into or to remain in commercial sexual service, adapted from section 8 of the SW Act;
• Forcing person to provide financial support out of commercial sexual services, adapted from section 9 of the SW Act -; and
• Living on earnings of a person providing unlawful commercial sexual services, adapted from section 10 of the SW Act.
I anticipate that maintaining these offences will empower sex workers to more freely exert their rights, including by reporting instances of misconduct (including forced work) by employers.
F. Anti-discrimination protections
• recognition and equality before the law (section 8 of the Charter)—promoted
• property rights (section 20 of the Charter)—relevant
Section 8(3) of the Charter provides that every person is entitled to equal protection of the law without discrimination and has the right to equal and effective protection against discrimination. The purpose of this component of the right to equality is to ensure that all laws and policies are applied equally, and do not have a discriminatory effect, whether directly or indirectly.
‘Discrimination’ under the Charter is defined by reference to the EO Act, which defines discrimination as indirect or direct discrimination on the basis of an attribute contained in section 6 of the EO Act. Section 6 of the EO Act lists protected attributes including disability, age, race and sex. Whilst “employment activity” is a protected attribute, it relates to activities specific to employee entitlements. Currently, discriminating against a person on the basis of their profession, trade or occupation does not constitute discrimination under the EO Act.
Sex workers are reported to experience discrimination due to their occupation, for example when applying for housing or financial products. In order to protect sex workers from discrimination based on their participation in sex work, the Bill introduces a new protected attribute for ‘profession, trade or occupation’ into section 6 of the EO Act. This amendment is intended to prevent discrimination by promoting the right of sex workers to recognition and equality before the law but may also have broader benefits in promoting the rights of other cohorts who face discrimination and stigma as a result of their occupation. To ensure the amendment does not have unforeseen consequences, the Bill also amends the EO Act to provide an exception for discrimination based on this new protected attribute, making it lawful to discriminate on the basis of a person’s profession, trade or occupation if the experience in a particular profession, trade or occupation is a genuine occupational requirement for the position and it is reasonable to discriminate on that basis in those circumstances.
This will ensure sex workers’ right to recognition and equality before the law (section 8) is appropriately considered into the future.
Section 20 of the Charter provides that a person must not be deprived of their property other than in accordance with law. ‘Property’ under the Charter includes all real and personal property interests recognised under the general law, including contractual rights and leases. A ‘deprivation’ of property may occur not just where there is a forced transfer or extinguishment of title, but where there is a substantial restriction on a person’s use or enjoyment of their property. In line with the intention of the Bill to remove all forms of discrimination against sex workers, it also repeals section 62 of the EO Act which allows a person to refuse accommodation to another person on the basis that they intend to use the accommodation for lawful sexual activity on a commercial basis.
While repealing section 62 may potentially deprive accommodation providers of certain aspects of controlling the use of their property, the right to property (section 20) will only be limited where a person is deprived of property ‘other than in accordance with the law’. For a deprivation of property to be ‘in accordance with the law’, the law must be publicly accessible, clear and certain, and must not operate arbitrarily. As any deprivation of property will be in accordance with the law, I consider that the right to property is not limited by the repeal of section 62 of the EO Act.
G. Sex work advertising controls
• freedom of expression (section 15 of the Charter)—relevant
• protection of families and children (section 17 of the Charter)—promoted
• recognition and equality before the law (section 8 of the Charter)—relevant
Section 15 of the Charter provides that every person has the right to hold an opinion without interference and every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, including through the media, by way of art or in any other medium. Subsection 15(3) recognises that this right may be subject to lawful restrictions reasonably necessary (a) to respect the rights and reputation of other persons; or (b) for the protection of, among other things, public morality.
The advertising of sex work is currently regulated under the SW Act and prevents sex work businesses from advertising job vacancies or from advertising in a way that at all describes the services offered. The current restrictions in the SW Act have a significant impact on the women and LGBTIQ+ communities who make up the historical majority of sex workers, who experience significant barriers to finding work or changing jobs, and are placed in the strange and dangerous position of not being able to describe what services they will or will not provide, compromising their ability to negotiate and establish consent with clients.
Current advertising controls in the SW Act will be repealed. To ensure the continued appropriate regulation on sex work advertising, the Bill expands the regulation-making power contained in the Summary Offences Act to make regulations:
• for, or with respect to, the size, form and content of advertisements for commercial sexual services;
• prohibiting the advertising of commercial sexual services in specified publications, or class of publications, or in a specified manner; and
• generally regulating the publication of advertisements for commercial sexual services.
The Bill impacts the right to freedom of expression (section 15) to the extent that it introduces regulation making powers in relation to sex work advertising and/or makes it an offence to breach the regulations. However, inappropriate advertising signage has the potential to impact public amenity and the character and image of local government areas. There is also the risk of inadvertently exposing children to sex work via signage and other promotion. Thus, any limitation on advertisement of sex work is in keeping with community standards and morality, and is reasonably necessary to protect children (section 17) from exposure to sexual content.
H. Sex work licensing and registration system
• recognition and equality before the law (section 8 of the Charter)—promoted
• privacy and reputation (section 13 of the Charter)—promoted
In Victoria, the current regulatory system for sex work is licensing, as set out in Part 3 of the SW Act, and supported by an offence in Part 2 section 15 of the SW Act regarding being in, entering or leaving an unlicensed brothel.
The licensing system is enforced through the criminalisation of all sex work that occurs without holding a licence, in breach of a licence’s conditions, or while a licence is suspended (section 22 of the SW Act). The SW Act makes an exception for small owner-operator businesses, Under the SW Act, small owner-operators, or private sex workers, must currently register with the Business Licensing Authority (BLA) and obtain a Sex Work Act Number (SWA) in order to lawfully operate without a licence. The registration process requires private workers to provide the BLA with personal information which is stored in a register. Though not accessible to the public, the register can be accessed by ‘the Director, by members or staff of the Authority or by authorised police officers or authorised officers of the responsible authority’. While sex workers can get SWAs ‘deregistered’ on request, a ‘historical record’ of the registration is kept by the BLA. The BLA also retains the authority to refer relevant matters to authorities including the police, WorkCover, the Australian Taxation Office, the Department of Immigration and Border Protection, Consumer Affairs Victoria and any other body.
Repealing Part 3 will decriminalise the commercial exchange of sexual services between consenting adults and promote the right to privacy and reputation (section 13), a right which is connected to conceptions of personal autonomy and human dignity. Decriminalising sex work removes the power of government to dictate the terms upon which consenting adults can have sexual relations——noting that these decisions concern bodily autonomy and should be considered private decisions. Decriminalising sex work also allows sex workers and others associated with the industry to make free and fair choices about their participation in a lawful industry.
Similarly, the repeal of the registration requirement for small owner-operators or private sex workers promotes the right to privacy and reputation (section 13) as well as the right to recognition and equality before the law (section 8) for the women and LGBTIQ+ communities who make up the historical majority of the sector.
I. Planning controls and powers to proscribe brothels
• Recognition and equality before the law (section 8 of the Charter)—promoted
• Freedom of movement (section 12 of the Charter)—promoted
• Privacy and reputation (section 13 of the Charter)—promoted
The Bill repeals:
• Part 4 of SW Act which sets out planning controls for brothels;
• Part 5 of the SW Act that provides powers to declare businesses that do not comply with the planning and licensing requirements as proscribed brothels; and
• a related offence in Part 2 Section 21A regarding operating a brothel other than in a building.
These controls include specific criteria for planning permits for sex work businesses, restrictions on granting permits, limitations on number of brothels/permits a person can have, specific powers of entry for police with or without a warrant for sex work premises and admissibility of evidence provisions for evidence gathered by police.
Under the SW Act, sex work businesses are prohibited from establishing within 200 metres (other than in parts of the City of Melbourne) of a place of worship, hospital, school, education and care services premises, children’s services centre or any other facility or place regularly frequented by children for recreational or cultural activities. These separation requirements are discriminatory and reinforce harmful social stigma towards sex workers and are a barrier to sex work taking place in safe locations. Removing these requirements promotes the right to recognition and equality (section 8) for the women and LGBTIQ+ communities who historically make up the majority of sex workers and ensure that they are treated the same as any other persons and regulated through planning controls which apply to all businesses in Victoria. This in turn reduces the stigma associated with sex work and the resultant discrimination faced by sex workers, particularly women and LGBTIQ+ communities. Removing these requirements also potentially promotes the right to freedom of movement (section 12) by enabling sex workers to establish business premises in areas of their choosing.
Further, current planning regulations prohibit the establishment of commercial sex work businesses in a range of areas which in practice means commercial sex work businesses have been largely pushed to industrial areas. This means that sex workers are forced to work in industrial areas with a lack of public transport, limited foot traffic and poor lighting which makes a sex worker’s commute to and from work dangerous. Removing these regulations promotes the right to recognition and equality (section 8) by enabling women and LGBTIQ+ communities who make up the majority of sex workers to operate in safe commercial areas, like other similar persons, businesses and workforces.
The SW Act grants police powers of entry and inspection to any licensed sex service premise without the need for a warrant. For unlicensed sex industry premises, power of entry without a warrant is granted in 32 specified circumstances. The SW Act also enables an authorised person who believes land is being used for a brothel to enter and search a premises without having to comply with pre-conditions to entry imposed by the Planning and Environment Act 1987 (which include obtaining consent from the occupier, providing two days’ notice and obtaining a warrant). Repealing these powers of entry will promote the right to privacy (section 13) in protecting an individual’s right not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with and not to have his or her reputation unlawfully attacked.
Conclusion
For the above reasons, I consider the Bill to be compatible with the Charter.
INGRID STITT MP
MINISTER FOR WORKPLACE SAFETY
Second reading
Ms SYMES (Northern Victoria—Leader of the Government, Attorney-General, Minister for Emergency Services) (21:54): I move:
That the second-reading speech be incorporated into Hansard.
Motion agreed to.
Ms SYMES: I move:
That the bill be now read a second time.
Incorporated speech as follows:
In Victoria, sex work is currently regulated under a legalised model. This means that sex work is only legal if it takes place within the licensing and registration system established by the Sex Work Act 1994 (Sex Work Act). All sex work that occurs outside this system is criminalised.
This system is complex, costly, and onerous. This has led to poor compliance and the growth of a large, unlicensed sex work industry in Victoria, which neither criminalisation nor licensing has been able to eliminate. This has created a complex, dangerous two-tiered industry, where workers have access to different rights and protections under the law purely based on how, where and with whom they work. This has many negative impacts for sex workers and business operators. Sex workers report unsafe working conditions in both the licensed and unlicensed sectors. These issues are exacerbated by the lack of autonomy, stigma and discrimination experienced by sex workers. This has a range of impacts on the health and safety of sex workers at work and in the community.
This system perpetuates stigmatisation of sex work, by proclaiming that sex is a dangerous service in need of extensive government regulation and control. Destigmatising the sex work industry and reducing discrimination is essential for protecting people working in the industry and shifting public perceptions of sex work. Entrenched negative perceptions of the sex work industry impacts sex workers’ mental health, reinforces attitudes that drive violence against sex workers, creates barriers to accessing healthcare, social services and housing, and limits educational and employment opportunities for workers, including those who wish to leave the industry.
This system promotes and enables discrimination against sex workers, who may experience significant barriers simply because of their profession. Criminalisation limits the agency and independence of sex workers to make free and fair choices about their life and participation in a legal industry. It significantly limits their ability to collectively bargain with employers or leave an unsafe workplace, as they cannot readily identify or gain access to alternative employment opportunities within their sector. If identified as a sex worker, particularly if they have a criminal history associated with participating in unlawful sex work, they may experience barriers to services, such as accommodation and financial services.
This system enables harm against sex workers, who report that they are fearful to report crimes to the police due to the risk of self-incrimination. Criminalising sex work reduces sex workers’ access to justice as many sex workers are unwilling to report instances of violence, mistreatment, or suspected trafficking out of fear they may be prosecuted for non-compliance. The current criminalisation approach pushes the sex industry further underground beyond the sight of regulators, support services and the community. The existing framework implies that sex work businesses and sex workers require a criminalisation approach from the government to reduce harm to the community. However, the result of this approach is not less harm for the community, but increased harm to sex workers.
Other models of sex work regulation cause harm to sex workers. Models that criminalise clients or managers but not workers can still make sex work more dangerous for workers. These models are generally designed with the aim of eliminating or suppressing the sex work industry, and do not address the harm, stigma and discrimination experienced by sex workers.
Purpose of this Bill
The Sex Work Decriminalisation Bill recognises that sex work is a legitimate form of work. The Bill will support sex workers’ safety and rights and ensure that sex work is safe work.
The main objective of the Bill is to abolish the sex work licensing system and regulate sex work businesses through mainstream regulators in its place, such as WorkSafe, the Department of Health, Victoria Police and local governments.
Under a decriminalised framework, sex work businesses will be treated in the same way as other Victorian businesses and regulated through standard planning, occupational health and safety and other business laws and regulations that apply to all businesses in Victoria. Victoria Police will remain responsible for enforcing criminal laws.
The Bill is a critical element in delivering a new regulatory framework and the decriminalisation of sex work in Victoria. It will be delivered in conjunction with the development of planning and public health regulatory frameworks, transition activities, and engagement with sex workers and the sex work industry to achieve the intended benefits of decriminalisation.
The approach put forward today is the best option to maximise sex workers’ safety, health and human rights, while also reducing stigma and discrimination by bringing the industry out of the dark and into the light.
How the Bill works
To decriminalise sex work, the Bill will repeal the Sex Work Act and its associated regulations and make a range of consequential amendments and transitional arrangements. The new provisions of the Bill will commence in two stages. Stage One will commence no later than on 1 March 2022. Stage Two will commence no later than on 1 December 2023.
The extended date for Stage Two commencement reflects the significant work still required to prepare for the repeal of the regulatory framework, including the need for WorkSafe to develop health and safety guidelines for workplaces where sex work is occurring and to introduce new planning regulations to guide decision-making following repeal of the Sex Work Act.
Stage One
Stage One will remove offences for participating in consensual sex work. This includes offences relating to street-based sex work and public health.
A new offence will be created in Stage One to prevent street-based sex work from occurring at or near schools, childcare services and places of worship between 6 A.M. and 7 P.M. Street-based sex work also cannot occur at or near places of worship on prescribed holy days, which will be defined in the regulations. We will continue to work with key stakeholders to determine what holy days require exclusions for the entire day.
Independent sex workers, called small owner operators, must currently register their personal details with the Business Licensing Authority to prove they are exempt from the requirement to be licensed. The Bill will close this exempt small owner operator register in Stage One. These small owner operators will continue to be exempt from the licensing requirement, but will no longer need to register.
To establish anti-discrimination protections in Stage One, the Bill will amend the Equal Opportunity Act 2010 to add a new protected attribute of ‘profession, trade or occupation’. The Bill will also repeal section 62, which currently provides that it is lawful for a person to refuse accommodation to another person on the basis that they intend to use it for lawful sexual activity on a commercial basis. These amendments will address discrimination against sex workers and remove barriers to sex work taking place in safe locations.
Stage One will also repeal all legislated advertising controls on sex workers and the sex work industry, so that it is no longer an offence to advertise job vacancies or describe services that are offered at the business. A regulation-making power will be retained.
For the avoidance of doubt, the Bill will also make explicit in Stage One that local laws created by local governments must not be inconsistent with or undermine the intent of the Bill to decriminalise sex work and reduce discrimination against, and harm to, sex workers.
Stage Two
Stage Two will dismantle the sex work licensing and registration framework by repealing the Sex Work Act in full. Repealing the Sex Work Act will mean that sex work businesses will be regulated under standard business laws. For example, sex work business owners can apply for a liquor licence following the removal of the prohibition on supply or consumption of liquor at sex work premises.
An updated definition of ‘commercial sexual services’ will be inserted into the Crimes Act 1958 (Crimes Act) and used across the Victorian statute book. The updated definition is intended to ensure victims are not excluded from seeking justice on the basis of the type of sex work undertaken, the type of payment provided, or who accrued the payment.
The Bill will preserve certain criminal offences relating to children and coercion currently within the Sex Work Act by re-enacting them in the Crimes Act. Additionally, the Bill will create an offence for any person who allows a child to enter or remain at a business premises where commercial sexual services are provided.
The Bill will move the ability to create advertising regulations for commercial sexual services to the Summary Offences Act 1966 (Summary Offences Act). It will be an offence for a person to publish an advertisement for commercial sexual services that contravenes the regulations.
Review of these amendments
The Bill also provides for a review of the operation of the amendments no later than 5 years after Stage Two commences. The Minister will determine the Terms of Reference of the review. Noting this caveat, it is expected that the Review would consider whether the Bill has achieved its stated purpose of reducing discrimination against, and harm to sex workers, as well as the operation of laws, policies and regulations enacted as a result of the repeal of the Sex Work Act. The review will be tabled in Parliament.
This Bill is an important step forward in achieving better public health and human rights outcomes for sex workers in Victoria. Its development was supported by Ms Fiona Patten’s review into decriminalisation of sex work, and I thank her for this important work. These reforms will ensure that every worker in the industry has the same rights and access to the entitlements and protections under law, as they would in any other job.
I commend the Bill to the house.
Mr ONDARCHIE (Northern Metropolitan) (21:54): I move:
That debate on this matter be adjourned for one week.
Motion agreed to and debate adjourned for one week.
Special Investigator Bill 2021
Introduction and first reading
The PRESIDENT (21:54): I have another message:
The Legislative Assembly presents for the agreement of the Legislative Council ‘A Bill for an Act to establish the Office of the Special Investigator to investigate potential criminal conduct and breaches of discipline relating to the recruitment, management and use by Victoria Police of Nicola Maree Gobbo as a human source, to amend certain other Acts and for other purposes’.
Ms SYMES (Northern Victoria—Leader of the Government, Attorney-General, Minister for Emergency Services) (21:54): I move:
That the bill be now read a first time.
Motion agreed to.
Read first time.
Ms SYMES: I move, by leave:
That the second reading be taken forthwith.
Motion agreed to.
Statement of compatibility
Ms SYMES (Northern Victoria—Leader of the Government, Attorney-General, Minister for Emergency Services) (21:55): I lay on the table a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:
Opening paragraphs
In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (the Charter), I make this Statement of Compatibility with respect to the Special Investigator Bill 2021 (the Bill).
In my opinion, the Bill, as introduced to the Legislative Council, is compatible with the Charter. I base my opinion on the reasons outlined in this statement.
Overview
The Bill establishes the Office of the Special Investigator (OSI) as a new investigative body with responsibility for investigating possible criminal conduct or breaches of discipline in connection with Victoria Police’s use of Ms Nicola Gobbo as a human source. It provides for the OSI’s functions, powers and duties. It also provides for the oversight of the OSI by the Victorian Inspectorate.
Human Rights Issues
Human rights protected by the Charter that are relevant to the Bill
The Bill engages the following human rights under the Charter:
• freedom of movement (section 12);
• right to privacy and reputation (section 13);
• freedom of expression (section 15);
• right to liberty and security of person (section 21);
• right to a fair hearing (section 24); and
• rights in criminal proceedings (section 25).
For the following reasons, I am satisfied that the Bill is compatible with the Charter and, if any rights are limited, those limitations are reasonable and demonstrably justified having regard to section 7(2) of the Charter.
Criminal investigative powers
The Bill empowers the OSI to investigate the commission of offences in connection with Victoria Police’s use of Ms Gobbo as a human source (defined in the Bill as a ‘relevant offence’) and offences against the Special Investigator Act. Division 1 of Part 3 of the Bill provides for an investigating OSI officer’s criminal investigation powers, which include the power to:
• require a person to state their name and address (clause 30);
• apply to a magistrate for a search warrant (clause 31) and, where authorised by the warrant, compel assistance from a person with knowledge of a computer or computer network to access electronically held data (clause 32 and clause 33); and
• apply to a court for an arrest warrant (clause 37).
The Bill also amends the Surveillance Devices Act 1999 to permit the OSI to apply for the issue of surveillance device warrants.
Right to privacy
Section 13 of the Charter states that a person has the right not to have their privacy unlawfully or arbitrarily interfered with and the right not to have their reputation unlawfully attacked. The right to privacy protects a person from government interference or excessive unsolicited intervention by other individuals.
I consider that the right to privacy is engaged by the criminal investigation powers given to investigating OSI officers. However, for the following reasons, I am satisfied that any interference with the right to privacy is lawful and not arbitrary, and therefore that the Bill is compatible with section 13.
The Bill confers the OSI with the powers necessary to enable the OSI to effectively perform its statutory functions, as recommended by the Royal Commission into the Management of Police Informants (Royal Commission). The powers of investigating OSI officers do not exceed the scope of criminal investigation powers of other law enforcement agencies, such as Victoria Police.
The interference with the right to privacy is proportionate to the purpose of the OSI’s powers. The power to require a person to state their name and address may only be used if an investigating OSI officer believes on reasonable grounds that the person has committed, or is about to commit, a relevant offence or an offence against the Bill, or may be able to assist in the investigation of such an offence. The powers to apply for a search or arrest warrant similarly require an investigating OSI officer to have reasonable grounds for the belief that premises or a vehicle should be searched, or a person arrested, because an offence has been committed. A warrant may only be issued by a court where it is satisfied that there are reasonable grounds for this belief, and may be executed by any investigating OSI officer.
When a search warrant is executed, an investigating OSI officer must identify themselves to the occupier or a person at the premises and give that person a copy of the warrant. The Bill also contains procedures to enable a person to claim a privilege in relation to relevant documents or things under the search warrant. These measures will further ensure that any interference with the right to privacy is not arbitrary.
As the OSI is a public authority within the meaning of the Charter, the Special Investigator and OSI staff will be obliged to properly consider human rights in their decision making and to act compatibly with human rights in exercising their statutory functions, in accordance with section 38 of the Charter.
The exercise of the OSI’s criminal investigation powers will be subject to several safeguards. The exercise of the powers under Part 3 is restricted to investigating OSI officers appointed by the OSI. In appointing an ‘investigating OSI officer’, the OSI must be satisfied that the person is suitably qualified and trained to perform the functions and exercise the powers under Part 3.
Importantly, the exercise of the OSI’s powers under Part 3 will also be subject to independent oversight by the Victorian Inspectorate. The Victorian Inspectorate will have a broad jurisdiction to receive complaints about the conduct of the OSI and OSI personnel.
In addition to these safeguards for the powers under Part 3, the power to apply for surveillance device warrants will be subject to the rigorous framework in the Surveillance Devices Act 1999. Under that Act, the Public Interest Monitor is entitled to be heard in applications for surveillance device warrants to ensure there is an appropriate basis for such warrants. The Victorian Inspectorate is also empowered to oversee the use of surveillance devices by authorised law enforcement agencies.
Right to freedom of movement and right to liberty and security of person
Section 12 of the Charter provides that every person lawfully within Victoria has the right to move freely within Victoria. Section 21 of the Charter provides that every person has the right to liberty and security, including the right not to be subject to arbitrary arrest. Section 21(3) provides that a person must not be deprived of his or her liberty except on grounds, and in accordance with procedures, established by law.
In my view, the rights in sections 12 and 21 of the Charter are engaged by the search and arrest warrant powers in clauses 31 and 37 of the Bill, which allow an investigating OSI officer executing a warrant to use reasonable force and seek any assistance necessary to apprehend, detain and search a person.
In accordance with section 7(2), I am satisfied that any limitation of section 12 is necessary to achieve the aims of the Bill and is reasonable and demonstrably justified. In accordance with section 21(3), I am satisfied that any deprivation of liberty authorised by the Bill will be on grounds, and in accordance with procedures, established by law.
As noted previously, powers relating to search and arrest warrants are critical to the investigative function of the OSI. The Bill places robust controls on these powers, including independent oversight by the Victorian Inspectorate and the requirement for the OSI to report to the Victorian Inspectorate on the issue of an arrest warrant.
In addition to the safeguards noted previously, the OSI’s powers of arrest will be subject to the safeguards in the Crimes Act 1958 that apply where a person is held in custody, including where a person is under arrest by warrant or in the company of an investigating official. These obligations include that every person taken into custody for an offence must, within a reasonable time, be:
• released unconditionally;
• released on bail; or
• brought before a bail justice or the Magistrates’ Court of Victoria.
Right to freedom from self-incrimination
Section 25(2)(k) of the Charter states that a person charged with a criminal offence is entitled not to be compelled to testify against themselves or to confess guilt.
The right to freedom from self-incrimination is engaged by clause 32 and clause 33, which empower an investigating OSI officer, on authority of or following execution of search warrant, to direct a person with knowledge of a computer or computer network to access electronically held data. The Bill provides that a person is not excused from complying with such a direction on the ground that it may result in information being provided that might incriminate the person.
Importantly, the purpose of clauses 32 and 33 is to facilitate the OSI’s access to evidence that is already the lawful subject of a search warrant issued by a magistrate. Significantly, an individual will not be compelled to alert the investigating OSI officer to the existence of potentially self-incriminating evidence or to provide information about the substance of that evidence. Nor will they be required to bring new evidence into existence. To the extent that section 25(2)(k) may be limited by clause 32 and 33, that limitation is reasonable and demonstrably justified in accordance with section 7(2) of the Charter.
Disciplinary investigation powers
Division 2 of Part 3 of the Bill provides for the OSI’s powers to commence a disciplinary investigation into Victoria Police officers in relation to the use of Ms Gobbo as a human source.
Significantly, clause 43 empowers an investigating OSI officer to direct a police officer to give specified information, produce any specified document or answer any specified question relevant to the subject matter of a suspected breach of discipline. Clause 44 expressly abrogates the privilege against self-incrimination for the purposes of a direction given under clause 43. It also provides that a failure to comply with a direction given clause 43 will, itself, constitute a breach of discipline.
The Bill also empowers the OSI to lay charges against a police officer for a breach of discipline, as recommended by the Royal Commission.
Right to fair hearing and right to freedom from self-incrimination
Section 24(1) of the Charter provides that a person charged with a criminal offence has the right to a fair and public hearing by a competent, independent and impartial court or tribunal. Section 25(2)(k) protects the right of a person charged with a criminal offence not to be compelled to testify against themselves or to confess guilt.
While section 25(2)(k) of the Charter refers to ‘a person charged with a criminal offence’, courts have interpreted the protections as extending to persons who have not been charged. This acknowledges that the privilege against self-incrimination can be infringed by the use in criminal proceedings of evidence which a person was compelled to give prior to being charged.
I consider that clause 43 may engage the right to fair hearing in section 24(1) and the right to be free from self-incrimination in section 25(2)(k) of the Charter. However, for the following reasons, I am satisfied that clause 43 does not limit these rights.
The powers in Division 2 of Part 3 reflect the Royal Commission’s commentary in its final report that the Special Investigator should have the powers and procedures that apply in usual police disciplinary matters. Division 2 reflects the disciplinary powers of the Chief Commissioner under the Victoria Police Act 2013.
Importantly, the Bill prevents individuals from being compelled to give evidence while the subject of current or possible future criminal charges in relation to the same conduct. If a police officer is suspected by the OSI of having committed an offence relating to Ms Gobbo’s use as a human source, the Bill provides that a direction under clause 43 can only be given to a person if:
• the OSI has firstly determined there is insufficient evidence to charge the police officer for such an offence and has concluded any investigation for such an offence;
• the OSI has first been advised that the DPP has determined not to prosecute the police officer for such an offence;
• any criminal charges against the police officer for such an offence have been discontinued or proven; or
• the police officer has been acquitted of any charge in relation to such an offence.
This limitation recognises the risk of unfairness that could arise if a person were compelled to give evidence while facing a criminal investigation into the same conduct. The risk of potential unfairness is heightened in the context of the OSI’s investigations, due to the significant overlap in conduct that may fall within its criminal and disciplinary investigatory jurisdictions.
These protections are reinforced by a prohibition against the direct use of evidence obtained by the OSI against the person before any court or person acting judicially, except in proceedings for:
• perjury or giving false information;
• an offence against the Special Investigator Act; or
• breach of discipline.
In addition, the Bill expressly prohibits any evidence gathered as a direct or indirect result of any information, document or answer given under direction from being admissible in evidence against the person in any criminal proceeding or proceeding for the imposition of a penalty. That is, the Bill provides a derivative use immunity in respect of information, documents or answers given under a clause 43 direction.
As noted above, the Bill imposes several procedural, reporting and independent oversight-related safeguards on the exercise of powers under Part 3. These safeguards will also apply to the power under clause 43. In addition, the Bill requires a copy of a direction given under clause 43 to be given to the Victorian Inspectorate, along with a report specifying the reason for the direction. This will ensure the Victorian Inspectorate can rigorously monitor the appropriateness of the OSI’s use of the coercive disciplinary power.
While an investigating OSI officer will be precluded from giving a direction under clause 43 in certain circumstances outlined above, it is possible that a police officer may be subject to disciplinary proceedings while facing a criminal investigation or criminal proceedings in relation to the same conduct. This is because the OSI may lay a breach of discipline charge on the basis of evidence obtained from sources other than information, documents or answers given under a clause 43 direction.
An inquiry into a breach of discipline charge laid by the OSI involves a disciplinary proceeding undertaken by an independent person appointed by the Chief Commissioner of Victoria Police under the Victoria Police Act 2013. The rights under section 24(1) and section 25(2)(k) may therefore also be engaged at the disciplinary proceeding stage because a police officer may choose to give evidence to defend the breach of discipline charge. The evidence given may be relevant to the police officer’s defence of concurrent or subsequent criminal proceedings.
To mitigate the risks of interfering with section 24(1) and 25(2)(k) once a breach of discipline charge is referred to Victoria Police, the Bill contains certain notification and consultation requirements. Where a police officer charged with a breach of discipline may be facing an ongoing criminal investigation in relation to the same conduct, the Bill requires the OSI to notify Victoria Police of this fact when referring a breach of discipline charge. The Bill also requires the OSI to notify Victoria Police of any criminal charges laid in respect of the same conduct. In such cases, the person appointed to inquire into and determine the breach of discipline charge will also be required to consult with the Director of Public Prosecutions.
In light of this framework, I do not consider that the Bill, in authorising the OSI to lay a charge for breach of discipline against a police officer who is facing an ongoing criminal investigation, limits the rights under sections 24(1) and 25(2)(k).
Access to records of the Royal Commission or other records directly given to the OSI
Clause 66 of the Bill empowers the OSI to access, receive, assess and deal with all Royal Commission records to further its criminal and disciplinary investigations. The Bill also empowers the OSI to access, receive, assess and deal with records provided directly by the IBAC to the OSI for the purpose of its statutory functions.
Significantly, the OSI will have access to evidence given by a person subject to the abrogation of the privilege against self-incrimination. The Bill places limits on the admissibility of such evidence against the person who gave or produced that evidence, consistent with the Acts under which the person gave or produced the evidence.
However, the Bill authorises the admissibility of evidence acquired as a consequence of that evidence—that is, derivatively obtained evidence—against the person who gave or produced the evidence. The Bill also clarifies that the OSI may use Royal Commission records or records provided directly by IBAC to support an application for a warrant under the Crimes Act 1958, Criminal Procedure Act 2009 and Surveillance Devices Act 1999.
While section 44 of the Inquiries Act and section 41 of the Independent Broad-based Anti-corruption Commission Act 2011 enable, respectively, a Royal Commission and IBAC to share information or documents with another body where relevant to its functions, information shared under those provisions would ordinarily continue to be covered by any legislative protections that existed at the time the evidence was gathered. In contrast, the Bill overrides any implied derivative use immunity that attaches to certain evidence gathered by the Royal Commission and IBAC, through operation of section 40 of the Inquiries Act 2014 and section 144 of the Independent Broad-based Anti-corruption Commission Act 2011, respectively.
Noting that the IBAC will have the discretion to enter into a coordinated investigation with the OSI under section 72 of the Independent Broad-based Anti-corruption Commission Act 2011, the Bill preserves both the direct use and derivative use immunity that may attach to evidence gathered in the course of a coordinated investigation through operation of section 144 of the Independent Broad-based Anti-corruption Commission Act 2011.
Right to fair hearing and right to freedom from self-incrimination
I consider that, by enabling the access and use of evidence given subject to the abrogation of the privilege against self-incrimination, the Bill engages the rights in sections 24(1) and 25(2)(k) of the Charter. However, I am satisfied that any limitations on these rights are necessary to achieve the aims of the Bill and are reasonable and demonstrably justified in accordance with section 7(2) of the Charter.
The matters uncovered by the Royal Commission go to the heart of the integrity of Victoria’s criminal justice system. The thorough investigation of possible offences in connection with Victoria Police’s use of Ms Gobbo as a human source is therefore of significant concern and benefit to the Victorian community. This is especially the case given the special status and powers of police officers to enforce the law and the considerable public interest in maintaining public confidence in the police force.
In recommending the establishment of a Special Investigator, the Royal Commission specifically recommended that the Special Investigator be given full and free access to its records. It is vital that the Special Investigator be able to access and use evidence essential to achieving its statutory purpose, namely to determine:
• whether there is sufficient evidence to establish the commission of criminal offending in connection with Victoria Police’s use of Ms Gobbo as a human source;
• the admissibility of that evidence in a criminal proceeding; and
• what other evidence may need to be gathered to establish whether any other relevant offences may have been committed.
The limitation of the rights under sections 24(1) and 25(2)(k) is reasonable and demonstrably justified. In my view, there are no less restrictive means available to enable the OSI to perform its recommended functions. Without the ability to use the Royal Commission and IBAC records to further its investigations, the OSI would be required to duplicate the work of the Commission and re-examine previous lines of inquiry already considered by the IBAC. This would significantly prolong the OSI’s investigations and unduly delay the finalisation of these important matters.
Importantly, the Bill preserves provisions that render inadmissible coercively obtained evidence given by a person, against that person. This measure protects against the most serious unfairness that would arise from the use of evidence given following the abrogation of the privilege against self-incrimination.
To the extent that the use of such evidence is permitted, it is restricted to allowing the OSI to gather further evidence to establish the commission of an offence.
Permitting the derivative use of evidence given subject to the abrogation of the privilege against self incrimination appropriately balances the public interest in the effective and timely investigation of offences with the Charter rights of those subject to the OSI’s investigations.
Right to privacy
By permitting the OSI to deal with records containing personal information that were produced to the Royal Commission or provided directly by IBAC, the Bill engages the right to privacy under section 13 of the Charter.
For the following reasons, I am satisfied that any interference with this right is permitted by law, sufficiently certain, and appropriately circumscribed. In addition, I consider that the restrictions on privacy are reasonable and necessary to achieve the aims of the Bill and to allow the OSI to perform its statutory functions. Accordingly, the Bill is compatible with section 13 in relation to the access and use of records containing personal information.
Clauses 66 and 69 respectively provide for what use can be made of Royal Commission and IBAC records, by reference to the OSI’s functions. Without the ability to use the records of the Royal Commission or IBAC to conduct its investigations, the OSI would be unable to effectively perform the functions recommended by the Royal Commission. In the absence of these records, the OSI would be required to duplicate the work of the Commission and IBAC—significantly delaying the OSI’s investigations and the restoration of public trust in Victoria’s criminal justice system in relation to these matters.
Importantly, the Bill imposes on the OSI a positive obligation relating to the secure management and storage of records provided to it. This requirement will complement the OSI’s obligations under the Privacy and Data Protection Act 2014.
Offences
Part 5 of the Bill creates several offences intended to safeguard the integrity of the OSI’s investigations and proper exercise of its functions. The offences prohibit:
• hindering or obstructing an OSI officer;
• making false or misleading statements;
• unauthorised use or disclosure of OSI information by an OSI officer or former OSI officer;
• causing or threatening detriment to a person who assists the OSI or an OSI officer; and
• destroying or concealing evidence.
The offences created by the Bill promote the public interest in ensuring the integrity of criminal proceedings, for example by preventing the destruction of evidence relevant to the prosecution of a criminal offence.
The offence of causing or threatening detriment to a person who assists the OSI or an OSI officer has been modelled on two similar offences which already exist in the Crimes Act 1958, in section 31D and section 257. Where a person is charged with this offence under the Bill, it will be a defence for the accused person to prove that the conduct was a lawful action, for example, any action engaged in the normal course of a lawful employment or industrial action or any action otherwise in accordance with law. This defence is consistent with the existing similar offences in the Crimes Act 1958. The defence is intended to exclude people who are undertaking otherwise lawful activities such as disciplinary processes, where their conduct is not improperly motivated but may fall within the definition of ‘detriment’ and attract the application of this offence. This defence engages the right to be presumed innocent until proved guilty in section 25 of the Charter, as the onus is on the accused to demonstrate that the conduct was lawful. To the extent that the right in section 25 is limited, I consider that the limit is reasonable and demonstrably justified in accordance with section 7(2) of the Charter.
The Evidence Act 2008 indicates that where an accused bears the burden of proving an exception to a charge, the court must be satisfied that the exception applies on the balance of probabilities. I consider that it is more appropriate that the accused bear the onus of proving the exception as it relates to matters that fall peculiarly within an accused’s knowledge—that is, the purpose for which the person engaged in conduct. These matters would be unduly onerous on a prosecution to investigate and disprove at first instance.
By prohibiting the unauthorised use or disclosure of information relating to any investigations by the OSI or its functions and powers, the Bill may engage the right of freedom of expression in section 15 of the Charter. Section 15 protects a person’s right to seek, receive and impart information freely. However, section 15(3) states that lawful restrictions on this right may be necessary to respect the rights and reputation of other persons, or to protect public safety, order health or morality.
In accordance with section 15(3) of the Charter, I am satisfied that the offence of unauthorised disclosure of information is a lawful restriction on a person’s rights under section 15 that is reasonably necessary to respect the rights of other persons and for the OSI to safeguard its own investigations.
Prohibiting the unauthorised use or disclosure of OSI information is necessary to mitigate the risk of sensitive information being disseminated inappropriately. The OSI will hold highly sensitive material, including Royal Commission records, which may include personal information and information that attracts public interest immunity.
The offence against unauthorised use or disclosure provides for a range of exceptions, including where use or disclosure is authorised by the OSI, information is already in the public domain or a reasonable excuse applies.
The Victorian Inspectorate will also be responsible for receiving, assessing and investigating public interest disclosures that may be made by OSI officers under the Public Interest Disclosures Act 2012. This will provide an avenue for OSI officers to raise appropriate concerns about the OSI’s investigations without contravening the offence against unauthorised use or disclosure of information relating to the OSI.
Public interest disclosures regime
The Bill empowers the OSI to:
• receive and investigate public interest disclosures referred to it by IBAC that relate to Victoria Police’s use of Ms Gobbo as a human source;
• refer public interest disclosures or public interest complaints made to the OSI about OSI staff to the Victorian Inspectorate;
• refer public interest disclosures or public interest complaints otherwise made to the OSI to IBAC for assessment and investigation; and
• disclose information under the Public Interest Disclosures Act 2012 for the purposes of the OSI’s criminal or disciplinary investigations.
These functions engage the right to privacy and reputation under section 13 of the Charter, as they may result in information about a person’s private life or adverse to their reputation being disclosed. However, for the following reasons, I am satisfied that any interference with the right to privacy is lawful and not arbitrary.
Importantly, information shared under the public interest disclosure regime will be subject to the existing confidentiality obligations and protections in the Public Interest Disclosures Act 2012. For example, section 39 of that Act provides that the protections under the Act do not apply to a person who has knowingly or recklessly made a false disclosure. This will ensure that any unlawful attack on a person’s reputation is not protected.
Where IBAC refers a public interest complaint to the OSI to investigate, the complainant will be permitted to request information about the investigation. However, the OSI will be prohibited from providing the complainant with any information that the OSI considers may involve the unreasonable disclosure of information related to the personal affairs of any person.
Reporting functions
The Bill requires the OSI to prepare annual reports in accordance with the Financial Management Act 1994. The annual report must include the number of investigations carried out under Part 3.
The Bill also provides for the OSI to lay a special report before Parliament at any time, on any matter relating to the performance of its duties or functions.
While the OSI’s reporting functions may engage the right to privacy and reputation in section 13 of the Charter, I am satisfied that the Bill does not limit this right. The matters required to be included in the annual report are aggregate in nature, and the OSI is not required to include personal information.
The OSI’s preparation of special reports is confined to any matter relating to the OSI’s performance of its duties or functions. Given the significant public interest in the matters within its jurisdiction, the OSI should be able to inform the Parliament and the community of relevant issues. By doing so, the Bill promotes the right to receive information freely in section 15 of the Charter.
The Bill contains safeguards to ensure individuals are afforded natural justice and do not have their reputation arbitrarily or unlawfully attacked. If the OSI intends to include in a special report any adverse findings, comments or opinions about a person, the OSI must give the person a reasonable opportunity to respond to the adverse material and include any response in the special report.
Jaclyn Symes MP
Attorney-General
Minister for Emergency Services
Second reading
Ms SYMES (Northern Victoria—Leader of the Government, Attorney-General, Minister for Emergency Services) (21:55): I move:
That the second-reading speech be incorporated into Hansard.
Motion agreed to.
Ms SYMES: I move:
That the bill be now read a second time.
Incorporated speech as follows:
The Special Investigator Bill 2021 (the Bill) is an important step towards the Victorian Government’s commitment to implement all recommendations of the Royal Commission into the Management of Police Informants (the Commission).
This Bill delivers recommendations 1, 3, 92–99, 101 and 103 of the Commission by providing for the appointment of a Special Investigator and establishing the Office of the Special Investigator (the OSI). The Bill confers on the OSI the functions, powers and duties necessary to investigate the conduct of persons involved in the use of Ms Nicola Gobbo as a human source, in particular Ms Gobbo and current and former Victoria Police officers named in the Commission’s final report and in the complete and unredacted closing submissions of Counsel Assisting the Commission.
The Bill will assure Victorians that their criminal justice system accords with the rule of law, as it should.
The Commission’s recommendations
The Government announced the establishment of the Commission on 3 December 2018. This announcement followed the publication of the High Court’s decision in AB v CD, EF v CD [2018] HCA 58, which revealed former criminal defence barrister, Ms Nicola Maree Gobbo, was a registered Victoria Police human source.
The Commission delivered its final report to government on 30 November 2020. The report contained 111 recommendations, 54 of which are directed to government. On 7 May 2021, the Government released its response to the Commission’s final report and reiterated its commitment to implement the Commission’s recommendations.
The Commission condemned the conduct of Ms Gobbo and Victoria Police, and pressed the need for a full and independent investigation of potential criminal or disciplinary offences, in the interests of accountability and transparency.
The Commission considered it would be inappropriate for Victoria Police and potentially not within scope of the Independent Broad-based Anti-corruption Commission (IBAC), to examine in full the conduct of Ms Gobbo and current and former Victoria Police officers.
As such, the Commission recommended government establish a purpose-specific Special Investigator to investigate criminal offences and breaches of discipline connected with Victoria Police’s use of Ms Gobbo as a human source.
In response, the Government committed $13.47 million to establish the OSI, to ensure justice is served, and to promote accountability and public confidence in the criminal justice system.
In June 2021, former High Court justice, the Honourable Geoffrey Nettle AC QC, was engaged to perform this role and will be appointed to his statutory position following passage of the Bill. Justice Nettle has commenced crucial preparatory work, including working through the extensive publicly available records of the Commission.
I now turn to the Bill.
Establishment of the OSI
The Bill establishes the OSI as an independent statutory office. This independence from government is central to public confidence in the OSI’s operations, as it will ensure that these investigations are conducted free from government influence.
The Bill provides for the appointment of the Special Investigator as a statutory office holder. The Special Investigator must be an Australian lawyer with at least ten years’ experience, with special knowledge of criminal legal practice or investigations.
The Bill empowers the OSI to employ staff and engage consultants as necessary to perform its functions. As such, the Bill will enable the OSI to delegate these functions, duties and powers to OSI officers. However, the exercise of the criminal and disciplinary investigative powers under Part 3 of the Bill will be restricted to investigating officers suitably qualified and trained to exercise these powers.
The OSI’s functions
The key functions of the OSI are to investigate whether there is sufficient evidence to establish any criminal offences, or breaches of discipline arising from, or out of, the conduct of persons involved in Victoria Police’s use of Ms Gobbo as a human source.
The Bill requires the OSI to conduct these investigations in relation to Ms Gobbo and any current and former police officers named in the Commission’s final report or in the complete and unredacted submissions of Counsel Assisting the Commission.
However, in line with the Commission’s recommendation, the Bill will also empower the OSI to investigate any other Victoria Police officers who may have committed criminal offences, or breaches of discipline, arising from, or out of, the use of Ms Gobbo as a human source by Victoria Police. Given the breadth of the Commission’s investigations and findings, and the expectation that any individual responsible for wrongdoing will be held to account, the Bill will empower the OSI to investigate current and former Victoria Police employees (not only sworn police officers) who may have committed criminal offences arising from the use of Ms Gobbo as a human source.
In addition to these functions, the OSI will:
• access, receive and assess over 155,000 documents which were gathered by the Commission and records from the 2014 IBAC inquiry conducted by the Honourable Murray Kellam, to determine whether there is enough admissible evidence to support the commission of any criminal offence or breach of discipline;
• access, receive, assess and deal with any relevant IBAC records provided to the OSI and conduct coordinated investigations with the IBAC under the IBAC Act to determine whether a relevant offence, an offence against the Special Investigator Bill or breach of discipline has been committed;
• receive public interest disclosures and investigate public interest complaints;
• compile briefs of evidence to give to the Victorian Director of Public Prosecutions (DPP), who will determine whether criminal charges should be filed;
• charge police officers with breaches of discipline arising from, or out of, the use of Ms Gobbo as a human source by Victoria Police and refer those charges for determination to an independent person appointed by the Chief Commissioner of Victoria Police (Chief Commissioner) under the Victoria Police Act 2013;
• report to the Implementation Monitor established by the Police Informants Royal Commission Implementation Monitor Act 2021; and
• report to Parliament on any matter relating to its functions and duties.
The OSI’s performance of its functions and exercise of its powers will be carried out fairly, impartially, independently and in the public interest, and be oversighted by the Victorian Inspectorate (VI).
Criminal investigations—functions and powers
The Bill gives the OSI all necessary and proportionate powers to investigate the commission of relevant offences arising from, or out of, the conduct of persons involved in the use of Ms Gobbo as a human source. The Bill provides investigating OSI officers with a range of powers similar to those that can be exercised by police under the Crimes Act 1958. These include the power to:
• require a person to state their name and address;
• to apply to a magistrate for a search warrant, including a warrant compelling assistance from a person with knowledge of a computer or computer network to access electronically held data; and
• to apply to a court for an arrest warrant.
The Bill also provides the OSI with access to Victoria’s surveillance devices and witness protection regimes.
Once an investigation has been completed, the OSI will compile briefs of evidence to give to the DPP. Upon receipt of a brief of evidence, the DPP will advise the OSI whether it should file a charge-sheet and commence proceedings against that individual for a relevant offence or offence under the Bill.
Disciplinary investigations—functions and powers
The Bill provides the OSI with all necessary and reasonable powers to investigate potential breaches of discipline committed by Victoria Police officers in relation to the use of Ms Gobbo as a human source by Victoria Police.
These powers include the power to give a direction to a police officer to give any relevant information, produce any relevant document, or answer any relevant question. This power was specifically recommended by the Commission.
However, to limit any unfairness arising from concurrent criminal and disciplinary investigations into the same conduct, the Bill will preclude an investigating OSI officer from issuing a direction until all criminal investigations and prosecutions in relation to criminal offences arising from the same conduct have been finalised.
The Bill will also prevent any information that is given subject to a direction, from being admissible against the person who was subject to the direction.
The Bill empowers the OSI to lay charges for a breach of discipline against a police officer, where they consider that there is evidence to support a charge for a breach. This gives the OSI the same powers as those that apply in usual police disciplinary matters. However, in line with the Commission’s recommendations, the OSI will not inquire into or determine breach of discipline charges. The Bill requires that once a disciplinary charge has been laid, the OSI must refer the charge to an independent person authorised by the Chief Commissioner.
Use of Commission and IBAC records
As recommended by the Commission, the Bill gives the OSI and the IBAC full and free access to the Commission’s records. This will enable the OSI and the IBAC to use the Commission’s records for the performance of their functions. It delivers the Commission’s intent that Special Investigator not be required to duplicate work already undertaken by the Commission in the conduct of its investigations.
The Bill also provides that the OSI may access and use information provided to it by the IBAC which the IBAC considers relevant to the OSI’s statutory functions, and that the OSI will have access to the records of the inquiry into the conduct of current and former Victoria Police officers in relation to the management of Nicola Gobbo as a human source conducted by the Honourable Murray Kellam AO QC, the findings of which were detailed in a confidential report dated 6 February 2015.
However, the Bill places important safeguards on the use of these records. First, the Bill requires the OSI to keep Commission and the IBAC records securely.
In addition, any information or evidence produced to the Commission will not be able to be admitted into evidence against the person who produced it. This preserves the direct use immunity contained in section 40 of the Inquiries Act 2014, which applied to records obtained by the Commission.
The Bill will, however, allow for material given or produced to the Commission to be used derivatively against the person who gave or produced the material—that is, to identify further lines of inquiry. As such, any evidence that is obtained as a consequence of having accessed Commission records will be admissible in evidence against the person who produced those records to the Commission. The Bill partially overrides the derivative use immunity that is provided for in section 40 of the Inquiries Act.
The Bill also partially displaces section 144 of the Independent Broad-based Anti-corruption Act 2011 (IBAC Act), to ensure the IBAC records provided to the Commission, or given directly to the OSI, are able to be used on the same terms as other Commission records.
Where the IBAC obtains records in the course of a coordinated investigation with the OSI and provides those records to the OSI, the Bill provides that the OSI can only use those records on the same terms that the IBAC could.
The Bill will also afford documents or things considered to be ‘protected’ under the IBAC Act the same protections once transferred to the OSI. Where requests are made to the OSI to produce a ‘protected document or thing’ in a proceeding, the OSI will not be required to produce or enable inspection of protected documents. Rather, any such requests will be referred to the IBAC for action.
The Bill also includes a mechanism to enable the OSI to apply to the Supreme Court to determine how claims of privilege or secrecy provisions apply to Commission and IBAC records. This will allow the OSI to resolve any public interest immunity claims over documents that may not have been resolved by the Commission before such documents are included in a brief of evidence and considered by the DPP. This approach minimises any risk to the integrity of future criminal prosecutions.
Powers to investigate public interest disclosures
The Bill also brings the OSI under Victoria’s public disclosure regime established by the Public Interest Disclosures Act 2012 (Public Interest Disclosures Act). This will ensure that any whistle-blowers who provide information to the OSI are afforded protections and remedies for inappropriate reprisals under the Public Interest Disclosures Act.
The Bill allows public interest disclosures about police officers and employees in relation to the use of Ms Gobbo as a human source to be made directly to OSI officers. The OSI will then notify the IBAC, which will assess the disclosure in this first instance and determine whether it is a complaint. The IBAC can then refer a public interest complaint to an appropriate agency, including the OSI, for investigation. If referred to the OSI, the OSI may use a public interest complaint to further its criminal and disciplinary investigations.
The Bill provides that any public interest complaints about the OSI or current and former OSI officers will be given to the VI to investigate.
Criminal offences
The Bill creates new offences to safeguard the integrity of the OSI’s functions and investigations. These offences include the offence of hindering or obstructing an OSI officer, threatening a witness or an OSI officer, disclosing sensitive information without authorisation, and destroying or concealing evidence the OSI may be interested in.
These offences will deter attempts to compromise the OSI’s investigations. They will also protect against unauthorised use of the highly sensitive material held by the OSI.
The Bill provides exceptions to these offences where appropriate. For example, it will not be an offence to disclose or use OSI information where use or disclosure of information is authorised by the Special Investigator, information is already in the public domain, or where another reasonable excuse applies.
Oversight of the OSI
The Bill provides for oversight of the OSI by the VI.
The Bill enables the VI to:
• monitor the compliance of the OSI and OSI officers in exercising their investigatory functions and powers under the Bill, including the use of coercive powers and arrest warrants;
• receive, assess and investigate complaints about the OSI or OSI officers;
• receive and investigate public interest disclosures about OSI officers;
• assess the effectiveness and appropriateness of the policies and procedures of the OSI relating to the legality and propriety of its activities; and
• report on and make recommendations as a result of performing certain oversight functions.
This oversight is consistent with the existing oversight role played by the VI for the IBAC.
Reporting functions
The Bill imposes various reporting requirements on the OSI.
The Bill requires the OSI to prepare annual reports in accordance with requirements under the Financial Management Act 1994.
The OSI may report directly to Parliament, at any time it considers appropriate, on any matters relating to the performance of its duties and functions. This is consistent with the special reporting functions of the IBAC and the VI.
Given the sensitivity of the matters to be examined by the OSI, the Bill provides a number of limitations on reporting of sensitive details for matters under investigation.
As recommended by the Commission, the Bill will also require the Special Investigator to report regularly to the Implementation Monitor on the progress to establish the OSI’s operations, and on the outcomes of the OSI’s investigations. The Bill will also require the Chief Commissioner to report to the OSI and to the Implementation Monitor on the outcome of any disciplinary proceedings following disciplinary charges laid by the OSI.
Conclusion
This Bill ensures that the Special Investigator is empowered to perform their role in the manner envisaged by the Commission.
The Special Investigator will play a key role in increasing confidence in Victoria’s justice system–ensuring that possible criminal conduct or breaches of discipline arising from, or out of, Victoria Police’s use of Ms Gobbo as a human source are thoroughly and appropriately investigated. These investigations will represent another important step forward to ensure that the events that led to the Commission can never occur again.
I commend the Bill to the house.
Mr ONDARCHIE (Northern Metropolitan) (21:55): I move, on behalf of my colleague Dr Bach:
That debate on this matter be adjourned for one week.
Motion agreed to and debate adjourned for one week.
Victorian Collaborative Centre for Mental Health and Wellbeing Bill 2021
Introduction and first reading
The PRESIDENT (21:55): I have another message:
The Legislative Assembly presents for the agreement of the Legislative Council ‘A Bill for an Act to establish the Victorian Collaborative Centre for Mental Health and Wellbeing, to make consequential amendments to other Acts and for other purposes’.
Ms SYMES (Northern Victoria—Leader of the Government, Attorney-General, Minister for Emergency Services) (21:56): I move:
That the bill be now read a first time.
Motion agreed to.
Read first time.
Ms SYMES: I move, by leave:
That the second reading be taken forthwith.
Motion agreed to.
Statement of compatibility
Ms SYMES (Northern Victoria—Leader of the Government, Attorney-General, Minister for Emergency Services) (21:56): I lay on the table a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:
In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter), I make this statement of compatibility with respect to the Victorian Collaborative Centre for Mental Health and Wellbeing Bill 2021 (the Bill).
In my opinion, the Bill, as introduced to the Legislative Council, is compatible with the human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.
Overview of the Bill
The Bill provides for the establishment of the Victorian Collaborative Centre for Mental Health and Wellbeing (Centre) with certain functions and powers and sets out its governance arrangements. In doing so the Bill discharges recommendations of the Royal Commission into Victoria’s Mental Health System (Royal Commission) Interim and Final Reports.
Human rights issues
In establishing the Centre, this Bill and its guiding principles will promote the right to life (in section 9 of the Charter) and further the legal recognition of and enjoyment of rights of persons with a disability under the law (section 8).
However, although the Bill broadly promotes the right to equality, certain clauses may limit the right in section 8 to the extent discussed in this Statement. Other human rights protected by the Charter are that are relevant to the Bill and discussed below are: the right to privacy and reputation (section 13(a)); and the right to take part in public life (section 18).
Functions of the centre
Clause 8 sets out the functions of the Centre, which include to:
• provide, promote and coordinate the provision of mental health and wellbeing services;
• assist service providers to facilitate and improve access to mental health and wellbeing services;
• provide or arrange the provision of specialist support services and care for persons who have experienced trauma;
• develop strategies for conducting research, and applying and disseminating research findings in the field of mental health and wellbeing;
• conduct, promote and coordinate research in the field of mental health and wellbeing, including in collaboration with other persons and entities—
and various other educational, advisory and reporting functions.
Right to privacy
Section 13(a) of the Charter provides that a person has the right not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with. An interference with privacy will be lawful if it is permitted by a law which is precise and appropriately circumscribed and will not be arbitrary provided it is reasonable in the circumstances and just and appropriate to the end sought.
To the extent that the Centre, in the performing its functions under clause 8 of the Bill, collects personal information, the Charter’s right to privacy will be engaged. This includes in the course of its agreements with a designated mental health service and academic institution under clause 10. It is likely that the collection of sensitive information (within the meaning of the Privacy and Data Protection Act 2014 (PDP Act)) and health information (within the meaning of the Health Records Act 2001 (HR Act)) will be required to inform the Centre’s provision or arrangement of appropriate specialist services. However, any interference with privacy occasioned by such measures will be lawful and not arbitrary.
The Centre has the power to do all things necessary or convenient to perform its functions (clause 9). The collection of personal information will only occur in the performance of the Centre’s functions, and the collection of sensitive and health information about a person may be necessary to identify and arrange appropriate specialist services.
The Centre also has research-related functions. Clause 35 relevantly provides that to the extent necessary to conduct research in the field of mental health and wellbeing, the Centre may collect health information and identifiers (within the meaning of the HR Act), personal information (within the meaning of the PDP Act), and also unique identifiers (within the meaning of the Victorian Data Sharing Act 2017). However, any interference will be authorised by legislation and not be arbitrary. Relevantly, clause 35 provides that it will not affect the operation of the PDP Act and HR Act. This means that the Centre and the entities that it collects information from will need to comply with applicable restrictions on information collection, use and disclosure in each Act. This will ensure that parties to information-sharing arrangements under the Bill for research purposes will still be subject to controls on how they deal with that information.
For these reasons, clauses 8, 9 and 35 are compatible with the right to privacy in section 13(a) of the Charter.
Board membership and Director appointments
Clause 10 relevantly provides that, subject to the Minister’s approval, the Centre must enter into agreements with (i) another designated mental health service; and (ii) an academic institution that conducts research into the field of mental health and wellbeing, in order to assist the Centre in performing its functions.
Clause 11 relevantly provides for the Centre to have a Board with certain numbers of members, of which:
• at least two are persons who identify as experiencing or as having experienced mental illness or psychological distress;
• at least two are persons who identify as caring or supporting, or having cared for or supported, a person with mental illness or psychological distress;
• at least one is a representative of the designated mental health service the Centre has entered into an agreement with under clause 10; and
• at least one is a representative of the academic institution that conducts research into the field of mental health and wellbeing, that the Centre has entered into an agreement with under clause 10.
Board members are to be appointed on the recommendation of the Minister who must have regard to the need for members to have experience, skills or knowledge that is relevant to the functions of the Board. The Minister must also be satisfied that members fulfil the criteria above on making a recommendation for appointment (clause 11).
Clause 23 provides that the Board with the approval of the Minister must appoint two Directors of the Centre, of whom:
• one is a person who has worked or is working in academia in the field of mental health and as a mental health practitioner; and
• one who is a person who identifies as experiencing or having experienced mental illness and psychological distress and has demonstrated the ability to apply their experiences to improve systems that deliver health or human services or to develop policy.
Rights to equality and to take part in public life
Section 8(2) of the Charter provides that every person has the right to enjoy his or her human rights without discrimination. “Discrimination” under the Charter means discrimination on the basis of “protected attributes”, within the meaning of the Equal Opportunity Act 2010 (EO Act).
Section 18(2)(b) of the Charter relevantly provides that every eligible person should have the opportunity, without discrimination, to access public office. “Discrimination” has the same meaning in this section as in section 8(2).
Clauses 11 and 24 generally impose eligibility requirements, which is consistent with s 18(2)(b) of the Charter. However, clauses 11(6) and 23(1)(b) each restrict eligibility for certain Board member and Director positions to persons who are experiencing or have experienced mental illness and psychological distress, or to persons who are or have been the carers of such persons. Disability is a protected attribute under the EO Act and is defined to relevantly include a “malfunctioning of a part of the body, including … a mental or psychological disease or disorder” (section 4(1)). This broad definition will likely capture mental illness. Carer status is also a protected attribute. Clauses 11(6) and 23(1)(b) may therefore be seen to have a discriminatory effect under sections 8(2) and 18(2)(b) of the Charter, by restricting eligibility on the basis of protected attributes and precluding other persons from being appointed as a Board member or a Director on these bases, and therefore from accessing public office.
However, Board members and Directors are to include persons with appropriate lived experience of mental health and wellbeing, in order for the Board and Directors to perform their legislative functions (clauses 12 and 25). The perspectives and insights of people with lived experience of mental illness and psychological distress will be critical to the Centre’s work and this is reflected in the fact that people with lived experience will be represented at all levels of the Centre’s governance. This is consistent with the Royal Commission’s vision that people with lived experience be central to the planning and delivery of all aspects of the mental health and wellbeing system. I am therefore satisfied that if such measures were to constitute discrimination, any limit on the rights to equality and to participate in public life would nevertheless be reasonable and demonstrably justified in accordance with section 7(2) of the Charter, having regard to the reasons set out above.
The same could be said of clause 20(3)(b)––(c), which allows committee members to be appointed the basis of their having experienced mental illness or been a carer and might appear to be differential treatment based on a protected attribute. However, this criteria is not compulsory, and members may also be appointed to a committee where they have “expertise in matters to be considered by the committee” (clause 20(3)(a)). Therefore, clause 20 will not have a discriminatory effect.
For these reasons, clauses 12, 20 and 25 are compatible with the rights to equality and to participate in public life in sections 8(2) and 18(2) of the Charter.
Right to privacy
Board appointments are restricted to persons who fulfil certain eligibility requirements, to the satisfaction of the Minister (clause 11). The Minister must have regard to the need for members with experience, skills or knowledge relevant to the functions of the Board (clause 11). For the Minister to satisfy themselves of these matters, they must have access to prospective Board members’ personal information, including sensitive and health information, to fill the positions that require person who are experiencing or have experienced mental illness. Although this information will be provided voluntarily, this may be seen interfere with the right to privacy of such persons.
However, as above, the Bill doesn’t vary the operation of the PDP Act and HR Act, and so the Minister will be bound by the limits on collecting, using and disclosing sensitive and health information in those Acts. Information collection is required for the important purpose of ensuring that persons who have lived experience of mental illness and psychological distress are appointed to the Board. Therefore, any interference with the right to privacy occasioned by clause 11 will be lawful and not arbitrary, and therefore compatible with the Charter right to privacy.
For the reasons set out in this Statement, in my opinion, the Bill is compatible with the human rights as set out in the Charter.
Jaclyn Symes MLC
Attorney-General
Minister for Emergency Services
Second reading
Ms SYMES (Northern Victoria—Leader of the Government, Attorney-General, Minister for Emergency Services) (21:56): I move:
That the second-reading speech be incorporated into Hansard.
Motion agreed to.
Ms SYMES: I move:
That the bill be now read a second time.
Incorporated speech as follows:
When the Royal Commission into Victoria’s Mental Health System tabled its Interim Report, it described a vision for a reformed mental health system. In the new redesigned system, people living with mental illness or psychological distress, their families and carers will be at the forefront, listened to and valued as active contributors and leaders. They will have access to comprehensive treatment, care and support delivered by a skilled and diverse workforce. They will have access to a system that improves over time and responds to the changing needs of the many people that it serves. A new system that is based on connection and collaboration.
It is only fitting that the first recommendation of the Interim report of the Royal Commission was to establish the Victorian Collaborative Centre for Mental Health and Wellbeing. With the Royal Commission’s Final Report, the Collaborative Centre cemented its place at the heart of the transformation of Victoria’s reformed mental health and wellbeing system. This Bill will launch the Collaborative Centre as a new entity—an independent body corporate—that will connect lived experience leadership, innovative service delivery, and cutting-edge mental health research, to form part of the foundational architecture of the transformed system.
The Victorian Government is committed to implementing each of the Royal Commission’s recommendations and in doing so, delivering the biggest social reform in our state’s history. We have invested in the mental health and wellbeing system Victorians deserve. The record $3.8 billion invested through the State Budget earlier this year will start us out on an ambitious ten-year reform agenda. The momentum is only building, and we intend to see it through.
This Bill is a crucial early step to point this long-term reform in the right direction. The Collaborative Centre will deliver better mental health outcomes for all Victorians through supporting translational research, workforce development, and modelling international best practice for mental health care and treatment. It establishes the objectives and guiding principles of the centre, lays out the functions of the centre, and stipulates governance arrangements that embed collaboration and lived experience leadership within the Board and executive levels.
Objectives and Guiding Principles of the Centre
I will first speak to the objectives and the guiding principles of the Collaborative Centre as outlined in the Bill.
The objectives of the Collaborative Centre are clear. It will embody the characteristics of responsiveness, collaboration and continuous improvement that exemplify Victoria’s transformed mental health and wellbeing system. It will support continuous improvement and learning. It will draw together expertise from across Victoria and around the world, to research, develop and disseminate effective practice to effect large-scale positive changes across the system. It will integrate the participation of people with lived experience across all functions and governance levels. The proximity of cutting-edge research with innovative service provision within the Collaborative Centre will ensure research priorities are set by mental health consumers, carers and practitioners and ensure new knowledge is relevant to and translated into practice.
In delivering on these objectives, the Collaborative Centre will be held to the following guiding principles:
• Mental health and wellbeing is shaped by the social, cultural, economic and physical environments in which people live and is a shared responsibility of society.
• The inherent dignity of people living with mental illness or psychological distress is to be respected and the necessary holistic support required to ensure their full and effective participation in society is to be provided.
• The family members and carers of people living with mental illness or psychological distress are to have their contributions recognised and supported; and mental health and wellbeing treatment, care and support services are to be provided on an equitable basis to those who need them and as close as possible to their communities.
• Comprehensive mental health and wellbeing treatment, care and support services are to be provided on an equitable basis to those who need them and as close as possible to their communities.
• Collaboration and communication is to occur between services within and beyond the mental health and wellbeing system and at all levels of government; and
• Responsive, high-quality, mental health and wellbeing services attract a skilled and diverse workforce.
• People living with mental illness or psychological distress, their family members, carers, and local communities, are central to the planning and delivery of mental health treatment, care and support services.
• Mental health services are to be informed by continuing research, evaluation, and innovation, to respond to community needs now and into the future.
Functions and powers of the Centre
I will now talk to the eight functions of the Collaborative Centre as described in the Bill.
First, to provide, promote and coordinate the provision of mental health and wellbeing services. This will include providing a comprehensive range of multidisciplinary services to adults and older adults in their local community.
Secondly, to provide or arrange the provision of specialist support services and care for persons who have experienced trauma. This provides for the establishment of the Statewide Trauma Service which will improve mental health and wellbeing outcomes for people of all ages with lived experience of trauma.
Further, to conduct, promote and coordinate interdisciplinary translational mental health and wellbeing research, including developing and implementing a broad research strategy, disseminating knowledge through a formal statewide network, and delivering a ‘clearing house’ for research output and best practice guidance.
The Collaborative Centre will establish links and service access pathways between mental health services and the Centre by performing a coordination function for statewide services and supporting service improvement.
The Centre will provide, promote and coordinate activities that support the continuing education and professional development of service providers and persons who work or conduct research in the field of mental health and wellbeing.
It will also develop and implement research strategies that addresses priority needs in Victoria’s mental health and wellbeing system, including through collaboration with the mental health and wellbeing sector, workforce development organisations, and academic and research institutes and entities.
The Collaborative Centre will collate and disseminate best practice advice and guidance to be applied across mental health and wellbeing settings.
Finally, it will report to the Minister and Secretary on its functions.
These functions will help to complement wider reforms in the mental health sector and support the Government’s commitment to implementing the recommendations of the Royal Commission in full.
Governance of the Centre
A crucial feature of the Centre is the leadership and inclusion of people with a lived experience of mental illness at the heart of responses to mental health in Victoria.
To this end, the Governance Board has four dedicated positions for people with lived experience; two with a consumer background and two with a family, carer or supporter background. These positions aim to reflect some of the diversity that exists across people with a lived experience of mental illness or psychological distress and promote their active and full participation at all levels of the mental health and wellbeing sector.
The Bill provides for the Board to establish two key partnerships: one with a health service and one with a research partner. Once selected, both partners will have dedicated positions on the Collaborative Centre’s Board. This will enable greater integration between research and service delivery. It will also nurture and establish a wide range of partnerships across academic and health sectors——crucial for the Collaborative Centre to fulfill its functions at the centre of a networked and adaptive mental health and wellbeing system.
The Centre will also feature an innovative joint executive leadership model, with Co-Directors working collaboratively to facilitate the Centre’s operations. One of the Co-Directors will be a person with a lived experience of mental illness and the other Director will come from an academic background. The Co‐Directors will have joint executive authority over the operations and strategy of the Collaborative Centre, similar to the more traditional role of a Chief Executive Officer in a single executive leadership arrangement. This approach is intended to foster cooperation and will ensure that traditional power structures identified by the Royal Commission that placed greater emphasis on clinical academic expertise are adjusted to incorporate greater agency for people with lived experience.
In establishing these governance arrangements, this Bill aims to hold fast to the centrality of the experience and outcomes for people with lived experience—that means their voices and perspectives must be part of any solutions within the new system.
This signals a united approach which moves us from “us and them” to “all of us together”—the genuine collaboration that will be at the heart of the new mental health and wellbeing system.
I commend the Bill to the house.
Mr ONDARCHIE (Northern Metropolitan) (21:56): I move, on behalf of my colleague Ms Crozier:
That debate on this matter be adjourned for one week.
Motion agreed to and debate adjourned for one week.
Terrorism (Community Protection) Amendment Bill 2021
Council’s amendments
The PRESIDENT (21:57): I have another message:
The Legislative Assembly informs the Legislative Council that, in relation to ‘A Bill for an Act to amend the Terrorism (Community Protection) Act 2003 in relation to radicalisation towards violent extremism and the protection of counter-terrorism intelligence, to require a further review of the operation of the Act, to delay the expiry of that Act, to make consequential and related amendments to certain other Acts, to amend the Juries Act 2000 to provide for the Juries Commissioner to exempt persons or classes of person from being summoned for jury service and to amend the Victorian Institute of Forensic Medicine Act 1985 to update a reference to a repealed Act and for other purposes’ the amendments made by the Council have been agreed to.
Adjournment
Ms SYMES (Northern Victoria—Leader of the Government, Attorney-General, Minister for Emergency Services) (21:58): I move:
That the house do now adjourn.
Lyndoch Living
Mrs McARTHUR (Western Victoria) (21:58): (1619) My adjournment matter is for the Minister for Health and concerns Lyndoch Living in Warrnambool, which in addition to residential aged-care services provides respite, in-home care and disability and allied health services to other age groups. Warrnambool is rightly proud of Lyndoch, which was established by local people and has grown successfully in the decades since. Community ownership and engagement have always been an essential part of the Lyndoch story. I am concerned, however, by recent developments which appear to undermine this ethos and perhaps reflect other more concerning problems in the organisation.
Since Lyndoch became a company limited by guarantee in 2018 it appears that new board and general members are not being admitted. Lyndoch has no general members other than the seven board members and a handful of unnamed executive staff. Under the Lyndoch constitution, to nominate for the board you must first be a general member. It seems the wider community has been cut off. Every membership application in the last 18 months—well over 100—has been rejected, including those of incredibly well-qualified and motivated individuals. In my view the current membership of Lyndoch should be a matter of public record and criteria surrounding the application process should be properly explained. I raise my concerns in this house with the minister because this poor governance practice appears to reflect wider problems, including poor staff morale and increased turnover, and questions from the former CFO over the viability of the $100 million master plan. It is also concerning that staff complaints to board members have apparently gone unanswered, as has a community petition signed by more than 1000 residents.
Now, I well understand that problems can arise in any big organisation, but I implore the management of Lyndoch to change their approach to working with the community and to adopt transparent and actively cooperative policies. As a funding partner through the health independence program and the home and community care program the minister’s department has an ongoing relationship with Lyndoch. The action I seek from the minister is that, in light of these community concerns, the minister provides an assurance that in the considered opinion of the department Lyndoch Living continues to offer high-quality services under an appropriate governance structure. I know your view will be of great interest to Warrnambool residents.
Veterans employment strategy
Ms VAGHELA (Western Metropolitan) (22:01): (1620) My adjournment matter is directed to the Minister for Local Government, Minister for the Suburban Development and Minister for Veterans, the Honourable Shaun Leane. This adjournment matter relates to the portfolio responsibilities of veterans. Many veterans successfully transition out of the Australian Defence Force to civilian life, but some have difficulties finding employment, in part due to the need to navigate new systems and processes. The Victorian government is backing our veterans to join the Victorian public sector with the public sector veterans employment strategy. The Victorian government has provided more than $2.7 million to date for the strategy, including a $1.3 million boost in the Victorian budget 2021–22.
Hundreds of Victorian veterans who are transitioning to civilian life will receive support to bring their extensive skills and experience to the public sector. The government has set a target to get an additional 750 roles in the public sector by June 2025. It is great to know that the Andrews Labor government supported 767 veterans in securing public sector employment between June 2017 and June 2021, which is more than the goal of 750 we had set previously. Veterans have enormous value to offer, including skills in leadership, project management, innovation and communication. The government is working to employ more veterans on major government infrastructure projects and continues to promote skills that veterans have on offer to the private sector. The action I seek from the minister is that he provide me with an update on what resources are available to veterans in the Western Metropolitan Region to assist them in seeking work in the Victorian public sector.
Horseracing
Mr MEDDICK (Western Victoria) (22:02): (1621) My adjournment matter is for the Minister for Racing. A new Netflix show has broken records, with hundreds of millions of people watching the new show Squid Game. Right here in Victoria many in our society have been transfixed by a show both spectacular and violent. The contestants are forced through a series of contests from which few emerge alive. Penned in confined spaces, they have no option but to compete for their life. They talk, but few understand their language. Deaths and accidents are frequent and form part of the entertainment for the onlookers. The VIPs watch from palatial surroundings, wearing ridiculous headgear, sipping on champagne and betting on the outcome. They cheer, even as some of the participants die in front of them. Victory can mean a pampered life, but for most participants it is death, quick or slow, one way or the other. Of course I talk about the squid game, but for horses: the racing carnivals that beset our state throughout the year. The action I seek is for the minister to set a death rate for the horses in the racing industry that the government would find unacceptable.
COVID-19 vaccination
Ms LOVELL (Northern Victoria) (22:04): (1622) My adjournment matter is directed to the Minister for Health. It concerns the government’s mandatory COVID-19 vaccination policy, and in particular the difficulties experienced by Victorians in obtaining medical exemptions. The action that I seek is for the minister to ensure that all doctors in Victoria are fully aware of the rules regarding medical exemptions from the COVID-19 vaccination to ensure those seeking an exemption are given the correct advice or are at least referred to someone who can provide that advice, rather than just being told that it is illegal for a doctor to issue an exemption.
The Andrews Labor government’s mandatory COVID-19 vaccination requirement has dramatically impacted on the lives of all Victorians. Our vaccination status dictates where we can eat, where we can shop, whether we can get a haircut and even whether we are able to go to work. While our increasing vaccination rate shows most Victorians are comfortable to receive the COVID-19 vaccination, there are some within our community who suffer from various medical conditions, such as anaphylaxis, who are genuinely and rightly concerned about receiving the vaccination.
I have been contacted by two such constituents who because of their severe anaphylaxis are seeking medical exemptions. The first is a 15-year-old girl who suffers from severe anaphylactic shocks caused by unknown allergens. The girl and her family are genuinely concerned about her reaction to the vaccine, and when she sought an exemption her local GP said it was illegal for her to grant an exemption—information that is clearly not accurate. The girl had been warned by doctors that if she were to receive a vaccination her first dose would have to be administered in hospital under strict medical supervision, a frightening prospect for anyone let alone a young girl.
The second constituent is also severely anaphylactic and is also seeking a medical exemption after suffering an anaphylactic shock when administered a first dose of the Pfizer vaccine. After receiving the vaccination this constituent went into anaphylactic shock and had to be administered two EpiPens. She was then conveyed to a Goulburn Valley Health hospital, where she suffered another shock and needed to be treated with an adrenaline infusion. The constituent is rightly fearful of getting a second dose of the vaccine but has been advised that she must.
Both cases have been referred to the Victorian Specialist Immunisation Services, which are funded by the state government, but still no clarity has been provided. I have forwarded the personal details of both constituents in correspondence to the minister, and I ask him to respond accordingly.
Aged care
Ms MAXWELL (Northern Victoria) (22:07): (1623) My adjournment is to the Minister for Disability, Ageing and Carers, and the action I seek is for the minister to detail how training and practice are being strengthened in state-managed aged-care homes in response to the sexual assault and abuse of residents. I recognise that responsibility for aged care sits largely with the federal government, but I am very concerned by how reports of the abuse of residents by staff who commit sexual assault could possibly be classified as non-urgent.
The serious incident response scheme was brought forward by the federal government because of the Royal Commission into Aged Care Quality and Safety. Every resident in aged-care services must have in place an effective incident management system for eight types of reportable incidents, including the use of unreasonable force, unlawful or inappropriate sexual contact and psychological or emotional abuse. The scheme requires priority 1 incidents likely to cause psychological or physical injury to be reported to the Aged Care Quality and Safety Commission within 24 hours, with priority 2 incidents to be reported within 30 days. What concerns me is that the regulator asks staff to determine the impact on the victim and whether there are reasonable grounds to report an incident to police.
In 2019 a KPMG study found that almost 60 per cent of aged-care staff considered a sexual assault survivor had experienced no physical or psychological impact after being raped or sexually assaulted. In one-third of cases incidents were resolved without formal intervention. Now, the serious incident response scheme should cover this because sexual assault is a reportable offence, but if staff deem it to have no impact it might not be reported for 30 days or reported to police at all. The royal commission found that:
… Australia’s aged care system is understaffed and the workforce underpaid and undertrained.
It recommended regular training in trauma-informed service delivery for all workers. I raise this to the state minister because the Victorian public health system is the nation’s largest provider of public sector residential aged care, and more than 89 per cent of these care facilities are in regional and rural areas. Training is important not only for staff to understand their obligations under this scheme but to improve protective measures so that the incidence of sexual assault and abuse are reduced, not swept under the carpet.
I raise these concerns to actually honour and support Maria Berry, who does an enormous amount of work in regional Victoria for those in aged care. I would like to give her an enormous shout-out, because she has advocated tirelessly for this work and for those in the aged-care sector.
COVID-19 vaccination
Ms CROZIER (Southern Metropolitan) (22:10): (1624) My adjournment matter this evening is for the Minister for Health. Sadly today, as the government officials went out to inform Victorians of the latest case numbers, there were 1923 new cases and there were 22 189 active cases. 746 people with COVID are in hospital, and 137 of those are in intensive care. I am pleased to say that those numbers are well under the modelling that was provided by the Burnet. I think that all Victorians and indeed all Australians are very pleased and relieved with those results, which are the result of so many people that have gone out and done what the government has demanded, and that is to get vaccinated. That is something that everybody in this house has said that they have supported, and everyone in this chamber is actually vaccinated.
And it is the government that has been demanding Victorians be vaccinated. In fact they have brought in so many rules, regulations and laws to ensure people are vaccinated, and if you are not vaccinated you will be cut out of society. You will not be able to contribute to society within the next few weeks if you are not double vaccinated. The government has been very strong on this. In fact they have not really brought people with them. They have pushed people into a corner and demanded that they be vaccinated. I do not think that has been the right way. I think it has been incredibly disappointing and the wrong way, and I do not like the way the Premier has done this. I do not like his style. I do not like the way he has berated Victorians. I do not like the way he has demanded and cajoled people to be vaccinated. People will get vaccinated. Look at what they have done in New South Wales. They have not had all the bullying that has occurred here in Victoria.
So I find it really incredible regarding the tragic 25 deaths that happened today—the sad deaths that happened today—that the government refuses to disclose their vaccination status. Why? They demand to know the vaccination status of every single Victorian so they are able to contribute to our society, to be engaged across a whole range of activities—they demand that vaccination status—yet they will not tell us the vaccination status of these people that sadly died today. So the action I seek is for the minister to explain why the government and the department officials are refusing to release the vaccination status of those that die of COVID-19.
COVID-19 vaccination
Dr CUMMING (Western Metropolitan) (22:13): (1625) The adjournment matter is to the Minister for Health, and the action that I seek is for the minister to remove the vaccine mandates once the 80 per cent double-vaccinated target is reached. I have spoken many times about the segregation that is happening in our society—the vaccinated and the unvaccinated, those that can go to restaurants and those that cannot, those that can go and get a haircut and those that cannot—all due to the vaccine mandates and the removal of everyone’s choice about receiving the vaccine or their medical conditions.
Now, the rest of the world is opening up, and I am sure many of the ministers in this house and in the other place will be jetting off for their summer holidays—off to Bali, to Thailand or maybe even to Paris. Wherever they go—
Dr Bach: Noosa?
Dr CUMMING: No, normally Bali. And while they are jetting off or just tripping around Victoria or the rest of Australia, many Victorians will be locked out of everyday activities. They will be locked out well into 2022—into 2023 if the Premier has his way. While these ministers and the Premier are enjoying their holidays, do they think they will be surrounded by only vaccinated people? Do they think that the person next to them in the day spa or in their Zumba class or in any restaurant that they go to overseas will be fully vaccinated, or are they going to trust that rapid testing works in other countries and the risk of catching COVID is minimal?
This country has chosen to use rapid testing on its pet major projects but not made it widely available to the rest of the community. Rapid testing would give Victorians back some kind of normal life. Rapid testing could be introduced even outside high-risk settings and could isolate the sick rather than the unvaccinated. So while you are enjoying your summer holidays, I hope you give a thought to those sitting back here in Melbourne who have been locked out of the economy, because we all know that you will be going around Bali, doing your Zumba—
Mr Finn: Zumba?
Dr CUMMING: Zumba. Or is it the Zorba? (Time expired)
Child protection
Dr BACH (Eastern Metropolitan) (22:16): (1626) My adjournment matter tonight is for the Premier, and the action that I seek is for him to institute a full and independent inquiry into Victoria’s child protection system. While he is at it, he could appoint a full-time and ongoing child protection minister in place of our current acting minister. It has been a big day here today—211 reports dumped here in the Parliament. Obviously there was a big focus on the pandemic legislation, and the Premier took the press off to a rainy spot this morning for a photo opportunity as well. Under the cover of all of that, one very important report was tabled in this place, which has received some attention and will in the days to come receive a huge amount of attention: the annual report of the Commission for Children and Young People.
This report details the death of another 45 of the most vulnerable children in this state known to child protection. Far worse, what the children’s commissioner said was that on so many occasions these deaths were directly related to more failures of the state government. On two occasions, shockingly, these deaths were directly related to the government’s COVID restrictions. Remembering that not one Victorian child has actually died of COVID, two of the most vulnerable children in the state have now died directly—so says the independent children’s commissioner—because of the government’s COVID restrictions. She took to ABC News tonight, after tabling her report today, to make it absolutely plain that she warned the government repeatedly that this would occur and yet the government did nothing. The statistics are startling. Almost half of these poor vulnerable children who died were under five months and 13 were Indigenous. When we were in government one Indigenous child known to child protection died. That statistic is appalling, noting that fully one in 10 Indigenous children in our state are in out-of-home care tonight, right now, removed from their families.
Looking at what has happened to the children who have not been subject to the deaths review of the commissioner and yet who remain in our system, there have been huge increases in self-harm and attempted suicide, up 32 per cent; a massive increase in physical abuse, up 26 per cent; a huge increase in emotional and psychological abuse, up 19 per cent—overall these shocking incidents have gone up 19 per cent. There has been a huge increase too in the number of young people who are absent on any given night—missing. Children in our care system are 70 times more likely than my daughter or your children, President, to be declared missing by Victoria Police, and yet the former minister was a corrupt buffoon. The new acting minister is an avuncular geriatric with a D-grade intellect.
Ms Symes: On a point of order, President, I really want to go home, but that is quite offensive, unparliamentary and really unlike Dr Bach. He should withdraw.
The PRESIDENT: Dr Bach, I ask you to withdraw.
Dr BACH: Thank you, President. I withdraw. Now, coming back to my adjournment matter, it is so important now, given the complexity of this space and given the government’s shocking failures, that we have an ongoing minister and that we have a full independent inquiry.
Glenrowan rail bridge
Mr QUILTY (Northern Victoria) (22:19): (1627) My adjournment matter is for the Minister for Transport Infrastructure. Last week I went to Glenrowan to see for myself the location of the proposed new bridge over the railway line. Australian Rail Track Corporation, ARTC, have what they believe is a final bridge design. I heard many concerns about its height and the impact on the surrounding historical sites. The existing bridge does not have enough clearance to allow double-stacked trains to pass. The proposed bridge replacement will be extremely high, towering over the town. The section of road from the main intersection of Gladstone Street and Beaconsfield Parade is not long enough to reach the height without a very steep incline. Residents whose houses face Beaconsfield Parade are concerned that their access to their property will be impacted and worry they will be living in the shadow of this huge new bridge.
ARTC has the option to lower the track or raise the bridge height. Their argument for not lowering the track—that it will alienate the town from the railway station—does not hold water. The station has been closed for over half a century. Glenrowan residents want the option of lowering the line, to avoid all the issues involved in raising the bridge, put back on the table.
There is considerable concern that ARTC has not done a proper heritage assessment of the proposed bridge and that the latest design is vastly different from the original sketches waived through the early planning process. The proposed bridge will alienate the Glenrowan Heritage Precinct and the site of the Kelly Gang’s last stand from the rest of the town. This is an important historical site for all of Australia. Ned Kelly’s famous last stand in the small northern Victorian town of Glenrowan on 28 June 1880 ended his bushranging crusade. Failing to factor in the siege site and the work the committee has been doing to incorporate this into their whole Ned Kelly experience will destroy this historic site. Glenrowan is a small country town that relies on the Ned Kelly story for its tourism dollars. The local community takes great pride in keeping the history of the Kelly story alive through the Glenrowan Heritage Precinct, which includes the siege site, the location of the Ann Jones Glenrowan Inn and the surrounds, including the links to the Indigenous trackers. The precinct also holds the historic railway station.
Community members believe the best option for their community, and the one with the least impact on the important heritage sites, is lowering the railway line. It is also an option to move the bridge so it lines up with the eastern intersection with the Hume Highway, which will shift lots of heavy traffic out of the town. Once again, I am hearing from a regional community that feels like this Melbourne government is not listening. The action I seek is for the minister to personally pay attention to what ARTC is proposing for Glenrowan and ensure their solution does not destroy this historic precinct. In the words of Ned Kelly:
It will pay Government to give those people who are suffering innocence, justice and liberty.
COVID-19 vaccination
Mr FINN (Western Metropolitan) (22:22): (1628) I wish to raise a matter on the adjournment this evening—I am sorry that she is packed up and ready to go—for the attention of the Attorney-General. I have not hidden the fact that I have some considerable contempt for the actions of the Premier in institutionalising discrimination in the way that he has set up a system of persecution of those who either have decided not to be vaccinated or indeed medically cannot be vaccinated. I think it is appalling that we have a two-tiered system in this state where some people have all the rights and a minority have no rights at all. It is just beyond the realm of any form of decency, in my view, that we have come to allow this to happen here in Victoria. I shake my head in disbelief. But I particularly shake my head when I hear reports that some doctors are refusing to treat people who are not vaccinated. Some doctors are even refusing to treat some children who are not vaccinated. That brings another component into it altogether, when children are involved. But I think we have got a particularly bad situation, an evil situation in fact, if doctors are refusing to treat patients who are not vaccinated.
What I would like the Attorney-General to do is to give us a ruling, if you will, on the legality of that. I do not know whether that is legal. I do not know whether you can discriminate. If medical doctors can discriminate against people, can deny them life-giving treatment, on the basis of whether they are vaccinated or not, it seems to me that we have an anti-discrimination law in the state that is not worth two bob. It is not worth a pinch of anything. I ask the Attorney-General to give us a ruling, taking into consideration the anti-discrimination laws, taking into consideration the charter of human rights and taking into consideration all the legal infrastructure that we have in this state. I ask her to give us a ruling as to whether this treatment of people, or non-treatment of people, is legal.
Traralgon Creek flooding
Ms BATH (Eastern Victoria) (22:25): (1629) My adjournment matter this evening is for the Minister for Emergency Services, so I am pleased that she is at the table to listen to this. On Thursday, 10 June 2021, in the early hours of the morning after torrential rain the Traralgon Creek flooded and Traralgon residents in that low-lying area were absolutely smashed. A major flood level warning was issued at 4.00 am when people were sleeping. The previous day it had been a minor warning and moderate as they went to bed. When they woke up in the morning there was water flowing through their homes, through their kitchens, through their bedrooms, through their garages and indeed there is footage of somebody saving a person—an older gentleman—who was floating down his street and could well have drowned.
The problem was that the first ‘evacuate now’ instigation from the VicEmergency app occurred while that water was flowing through homes and streets and it was unsafe to leave. That was the first time there was an evacuate now order. Previously a very good flood warning system was run by the Latrobe City Council. It was award winning. Residents were able to prepare, they had real-time in-stream monitoring, and they were provided with communications. Residences and businesses had texts, phone calls, door-to-door and media alerts. They were sandbagged the night before and provided with those sandbags. They had early notice, and that was the key thing. There was traffic management as well. Throughout this day of the 10th, 22 evacuate messages occurred after the floodwater had receded, so 22 messages were too late.
Minister, in relation to what was going on, Commissioner Crisp said there had been a gap in the system. There were some clear failings in the whole system around information transfer from the Bureau of Meteorology and through the hierarchy of the emergency management system—not the people on the ground, not our fantastic volunteers and local people even in the Latrobe City Council. Indeed one of the local emergency management officers there has not been contacted. The commissioner said there would be a fulsome review to check out this gap, and there has been nothing responded to for five months.
So I am asking the minister: will she be able to provide the fulsome report at the end of this review? When will it occur, and what assurances have people in the Latrobe Valley got that they will not be woken up in the middle of the night with water running through their kitchens but that there will be a proper system in place with proper announcements and proper support for them so that they do not have to go through this experience again? This has got a statewide implication. It is not just for the Latrobe Valley. People need to know that there are proper flood warning systems in place and proper communications. It needs to be addressed, and I ask the minister to respond and provide this information.
Rental payment systems
Dr RATNAM (Northern Metropolitan) (1630)
Incorporated pursuant to order of Council of 7 September:
My adjournment matter tonight is for the Minister for Consumer Affairs, Gaming and Liquor Regulation, and my ask is that the minister bans the use of third-party platforms for rental payments in Victoria.
Renters across Victoria are increasingly being asked by their property managers to sign onto third-party property management software. The third-party platforms are pitched as a property management tool for the real estate industry and are supposedly designed to make it easier for renters and their property managers to manage all aspects of a tenancy.
Renters are rightly concerned that their personal data, including bank details, are being provided to an unknown third party through the use of these platforms.
In many cases renters are also told that signing up to the new systems is mandatory and are left with no choice but to hand over their personal and financial data to a third party.
There has also been an increase in third-party companies that process rental payments themselves, which most often involve hidden fees and charges. Some can add up to as much as an extra week’s worth of rent a year.
While I understand that the Residential Tenancies Act requires that a rental provider must offer at least one rent payment method without fees or charges, and that it is reasonably available, it’s concerning that even the fee-free payment methods are now being processed through third-party platforms.
Where renters previously arranged their own Bpay or other rental payments, they are now being directed through the platform and in many cases offered only one fee-free option alongside a number of payment options with attached fees.
It’s also likely that many renters will find themselves pushed into adopting the payment methods through the platforms that do have extra charges attached to them.
I’ve been hearing from renters that the real estate industry is already pushing the limits of what ‘reasonably available’ payment methods allow. For example, some renters are being asked to travel to the real estate agency to pay rent in person as their fee-free, reasonably available method of payment; others are being asked to pay with cheques or in cash.
Pushing renters to sign up to and go through a third-party software company to pay their rent, which may lead many to incur extra fees, also appears to be on the limits of what is reasonable.
I ask the minister to ban the use of third-party platforms for rental payments in Victoria.
Responses
Ms SYMES (Northern Victoria—Leader of the Government, Attorney-General, Minister for Emergency Services) (22:28): Tonight there were nine matters for ministers other than me and two matters for me.
Mr Finn has asked me as Attorney-General to provide a ruling. It is not my role to do that. In fact it is not my role to provide legal advice, unfortunately. However, what I would say, Mr Finn, is that if you have come across individuals that have been refused treatment, I agree with you that it is abhorrent. There is a code of conduct that health professionals sign up to, particularly doctors, in relation to the care that they are to provide patients. So I would ask that you provide advice to your constituents or people from whom you have heard about this that they can contact the Victorian Equal Opportunity and Human Rights Commission to complain about that, but also the health complaints commissioner would be an appropriate place to go. If you did want to furnish me as Attorney with any of that information, I can find a home for it as well. I have not heard of that practice, and I certainly would not like to hear that it is widespread. But if you have got examples, I am more than happy to follow that up through a variety of mechanisms on your behalf and provide you with any support to help the people that you have heard of this happening to.
Ms Bath, thank you for your question. I will get some further advice on where that review is up to. The exact same thing happened to Benalla in 1993, and my family home was flooded. I know how scary it can be, and the lack of warning in that instance I know was a concern. An apology has been issued, and an investigation is underway involving the emergency management commissioner and also the inspector-general for emergency management. Yes, my commitment to you would be of course to provide you with the details when I have them available.
The PRESIDENT: On that basis, the house stands adjourned.
House adjourned 10.30 pm until Tuesday, 16 November.