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PUBLIC ADMINISTRATION AMENDMENT (PUBLIC SECTOR IMPROVEMENT) BILL 2013
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30 October 2013
Statement of Compatibility
NAPTHINE
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PUBLIC ADMINISTRATION AMENDMENT (PUBLIC SECTOR IMPROVEMENT) BILL 2013 Statement of compatibility Dr NAPTHINE (Premier) 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 (charter act), I make this statement of compatibility with respect to the Public Administration Amendment (Public Sector Improvement) Bill 2013 (the bill). In my opinion, the bill as introduced to the Legislative Assembly is compatible with the human rights protected by the charter act. I base my opinion on the reasons outlined in this statement. Overview of bill The aspect of the bill relevant to the charter act is the conferral on the Victorian Public Sector Commission (which is established under the bill to replace the State Services Authority) of appropriate powers to conduct inquiries as directed by the Premier. Human rights protected by the charter act that are relevant to the bill Right to privacy, freedom of movement and expression Section 13(a) of the charter act provides that a person has the right not to have his or her privacy unlawfully or arbitrarily interfered with. Sections 12 and 15 of the charter act provide that a person has the right not to have his or her lawful movement or expression interfered with. Section 57(2) of the act, inserted by clause 10 of the bill, confers a power on a person conducting an inquiry to compel a person to attend an examination, give evidence under oath, and provide documents. This provision is relevant to the freedom of movement, as a person may be required to appear before the commission, and the rights to privacy and freedom of expression, as that person may be required to impart information. These powers are given to achieve the commission's objective to strengthen the efficiency, effectiveness and capability of the public sector and will be lawful and only
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apply to persons whose evidence is material to an inquiry. Accordingly, even if these provisions did limit the right to privacy, freedom of movement and expression, the limit is reasonable and justified. Presumption of innocence Section 25(1) of the charter act provides that a person charged with a criminal offence has the right to be presumed innocent until proven guilty in accordance with the law. New subsection 57(2), inserted by clause 10 of the bill, creates penalties for failing to comply with a summons to attend or produce documents, without reasonable excuse, and attending but refusing to be sworn or, without lawful excuse, refusing to answer any relevant question or produce any document. These provisions impose an evidential onus on accused persons, thus displacing to some extent the onus on the prosecution and may therefore be a limit on the presumption of innocence. It would undermine the effectiveness of the offence provisions (which, in turn, would undermine the efficacy of the Victorian Public Sector Commission's investigative functions) if the prosecution had to prove beyond reasonable doubt that the defendant did not have a relevant excuse. This is because whether a defendant had a relevant excuse is a matter within the knowledge of that defendant. Accordingly, even if these provisions did limit the right to be presumed innocent, the limit is reasonable and justified. The Hon. Dr Denis Napthine, MP Premier