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12 March 1991 - Current

 
PUBLIC ADMINISTRATION AMENDMENT (PUBLIC SECTOR IMPROVEMENT) BILL 2013
Page 3658
30 October 2013
ASSEMBLY Statement of Compatibility NAPTHINE
     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