Hansard debates

                  WATER AMENDMENT (FLOOD MITIGATION) BILL 2014
                           Statement of compatibility
Mr  WALSH  (Minister for  Water)  tabled following statement  in accordance with
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  act),  I  make  this  statement of
  compatibility with respect to  the  Water  Amendment  (Flood  Mitigation) Bill
  2014.
  In my opinion, the Water Amendment  (Flood Mitigation) Bill 2014 as introduced
  to the Legislative Assembly, is compatible with the human rights  set  out  in
  the charter act. I base my opinion on the reasons outlined in this statement.

  Overview of bill
  The  bill amends  the Water  Act 1989  to provide  for a legislative scheme to
  authorise the maintenance of flood  mitigation works (or  levees) on specified
  Crown  land. The bill provides authorisation by the  issue  of  a  permit  for
  access and  maintenance, which may be subject to conditions. The Crown land to
  which  the scheme  applies is  land, not  being a natural catchment area  or a
  reference area, which is:
    land reserved under the Crown Land (Reserves) Act 1978;
    reserved forest within the meaning of the Forests Act 1958;
    unreserved Crown land under the Land Act 1958;

    land in the several specified schedules to the National Parks Act 1975 other
    than the specified areas as set out in  the  bill  (wilderness zones, remote
    and natural areas and designated water supply catchment areas); and
    any  state wildlife reserve  or  nature reserve within  the  meaning of  the
    Wildlife Act 1975.
  The bill also amends the Crown Land (Reserves) Act 1978, the Forests Act 1958,
  the Land Act 1958,  the National Parks Act 1975  and the Wildlife Act  1975 to
  insert offences relating to the unauthorised construction, removal, alteration
  or maintenance of a levee.
  The bill also amends the Conservation, Forests and  Lands  Act  1987 to enable
  certain  additional functions created  by  the bill to  be  delegated to Parks
  Victoria or its employees.

  Human rights issues
  Right to be presumed innocent (section 25)
  Exception if performing a function under an act
  Clause 9 of the bill  inserts a new subsection 21AA(2)  and (3) into the Crown
  Land (Reserves) Act 1978 that provides an exception to the offence in proposed
  21AA(1) of constructing, removing, altering or carrying  out maintenance on  a
  levee.  The exception under  proposed subsection 21AA(2) applies if the person
  does these activities in the performance of a function under  the  Crown  Land
  (Reserves) Act 1978, regulations made under that act or under any other act or
  related regulations.

  This exception will  in  practice apply  to  water authorities  and  catchment
  management authorities. On the face of the provision it could potentially also
  apply to a committee of management under  the  Crown  Land (Reserves) Act 1978
  with flood management responsibilities. While a committee  of management under
  the latter act can be a body corporate or a group of individuals,  in practice
  a committee of management made up of individuals does not have and will not be
  given responsibilities for flood management activities under legislation.  The
  levee maintenance permit  will be the sole mechanism to authorise  individuals
  to carry out  such activities. On this basis proposed section 21AA(2) does not
  apply to individuals and so does not engage the charter.
  This  similarly  applies to  the  same  exceptions provided  in  the identical
  offence provision  inserted in the  Forests Act 1958, Land  Act 1958, National
  Parks  Act  1975  and  Wildlife  Act  1975  by  clauses  10,  11,  13  and  14
  respectively.

  Exception if acting under a levee maintenance permit
  Proposed section  21AA(3)  of the  Crown  Land (Reserves) Act  1978,  proposed
  section 96F(3) of the Forests Act 1958, proposed section  190A(3)  of the Land
  Act 1958, proposed section 44B(3) of the National Parks Act 1975  and proposed
  section  21AAA(3)  of  the Wildlife Act 1975 being inserted by the bill,  each
  provide an exception to the offence  of carrying out maintenance on a levee if
  the person carries out  the maintenance in accordance with a levee maintenance
  permit.  In  each instance the  exception engages section  72  of the Criminal
  Procedure  Act 2009  to require  an accused to present or point to evidence to
  suggest  a reasonable possibility  of  the existence  of  facts that, if  they
  existed, would establish that he or she were  acting  under  and in accordance
  with a levee  maintenance  permit. The right  to  be presumed  innocent  under
  section  25(1)  of the charter  is  relevant because the  provisions place the
  evidential burden on an accused to raise evidence of the exception.

  Placing the evidential burden on the accused in these instances  is considered
  reasonable  because  the  accused is best placed to point to the  reasons  for
  their conduct and that  it  falls within the exception. However, this does not
  transfer the legal burden of proof,  because  once  the accused has adduced or
  pointed to  some evidence in support of the exception,  the burden  is on  the
  prosecution  to  prove  beyond reasonable  doubt  that the  exception  is  not
  satisfied. Further the prosecution must prove beyond  reasonable doubt all the
  elements of the offence. Consequently these provisions  do not limit the right
  to the presumption of innocence.
  This equally applies to  the exception inserted respectively by clauses 5,  6,
  10,  12  and 15 of the bill  of  acting  under  or in accordance with a  levee
  maintenance permit in relation to 

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 certain existing offences. Specifically they  are  the  offence  under  section
208(1) of  the  Water  Act  1989  that  prohibits the undertaking or erection of
unauthorised works or structures on a floodway or between a  building line and a
designated waterway, land or  works; the offence under section 218(11) and  (12)
of the Water Act that relates to unauthorised obstruction or interference with a
drainage  course; offences under section 96(h), (j) and (o) of the  Forests  Act
1958 of  cutting,  digging  or  being  in possession of forest produce without a
licence or being authorised; the offence under section 21(1) of the Wildlife Act
1975 of removing sand, soil or other  material  from,  or of depositing material
in, a state wildlife reserve or nature reserve; and the  offence  under  section
191 of the Land Act 1958 of depositing rubbish on Crown land.
  Right to property (section 20)

  Proposed part  5AA of the Water Act 1989 being  inserted by  the bill  engages
  section 20 of the charter on the basis that  a levee maintenance permit can be
  issued in respect of a levee that is located on or adjacent to Crown land that
  is leased to an individual. However,  the  right  is  not  limited because the
  proposed provisions require the consent of the lessee of the land on which the
  levee  is  located  or  over which access is required. As such,  no  arbitrary
  interference with the lessee's rights will be possible under new part 5AA.
  For  the  reasons given in  this  statement,  I  consider  that  the  bill  is
  compatible with the Charter of Human Rights and Responsibilities Act 2006.
  The Hon. Peter Walsh, MP
  Minister for Water