12 March 1991 - Current
TRANSPORT (SAFETY SCHEMES COMPLIANCE AND ENFORCEMENT) BILL 2014
20 February 2014
|ASSEMBLY||Statement of Compatibility||MULDER|
TRANSPORT (SAFETY SCHEMES COMPLIANCE AND ENFORCEMENT) BILL 2014 Statement of compatibility Mr MULDER (Minister for Public Transport) 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 Transport (Safety Schemes Compliance and Enforcement) Bill 2014. In my opinion, the Transport (Safety Schemes Compliance and Enforcement) Bill 2014, 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 main purpose of the bill is to consolidate and improve existing monitoring, compliance, investigation and enforcement powers available to the Victorian safety director (Victoria's rail, bus and marine regulator) and transport safety
officers following the implementation of national rail and marine safety schemes in Victoria. Consequential changes are also made to the investigatory powers of the chief investigator, transport safety who deals with no-blame investigations following public transport and marine accidents. The bill ensures that local compliance and enforcement standards for Victoria's locally regulated rail, marine and bus safety sectors enjoy the same levels of compliance and enforcement support as occurs under recent national schemes. The bill provides the safety director and officers of Transport Safety Victoria with detailed entry, search, seizure, inquiry and questioning powers. It also includes important administrative sanctions, such as the power to serve improvement and prohibition notices and contains court-based sanctions. The bill also provides a platform for Victoria to implement COAG-approved directors' liability principles in Victoria, which limits the offences for which an officer might be liable when an offence is committed by the corporation. The provisions in the bill broadly follow (with modifications and improvements) the monitoring and compliance provisions, enforcement measures and court sanctions in the rail safety national law (modified and applied as a law of Victoria by the Rail Safety National Law Application Act 2013). Prior to commencement of the national schemes, compliance and enforcement tools used by the regulator to monitor and enforce these schemes and Victoria's bus safety scheme were contained in the Transport (Compliance and Miscellaneous) Act 1983. The national provisions draw heavily on many pre-existing measures in that act. A number of additional key Victorian provisions contained in the Transport (Compliance and Miscellaneous) Act 1983 are retained and a number of improvements (including measures to ensure that any limitations on charter act rights are within reasonable limits) are made. The provisions are tailored to extend beyond rail safety, including the Melbourne metropolitan tram network, to provide powers in respect of Victoria's local bus and marine safety schemes. Human rights issues The bill engages the charter act rights of freedom of movement, privacy, property rights, the right to a fair hearing, the right to be presumed innocent and minimum guarantees in criminal proceedings. The impact of the bill on each of these rights is discussed below. Freedom of movement Section 12 of the charter act provides that every person lawfully within Victoria has the right to move freely within the state. The right is not absolute. As with all rights protected by the charter act, the right may be subject to reasonable limitations that can be demonstrably justified in a democratic society in accordance with section 7 of the charter act. Stopping vessels and vehicles A number of provisions empower the stopping of vessels and vehicles. Clauses 11 and 12 of the bill contain provisions enabling a transport safety officer to detain a vessel for up to 48 hours, or such longer period as the Magistrates Court allows. A vessel may be detained only if an officer has boarded it for compliance and investigative purposes under clause 6 of the bill. These powers do not limit an individual's movement, only that of the vessel. The power to detain a vessel may only be exercised if an officer seeks to ascertain whether a transport safety or infrastructure law or approved marine code of practice has been complied with or whether an offence against a transport safety or infrastructure law has been committed, or in relation to an investigation into a marine safety matter. Clauses 10 and 42 of the bill enable directions to be given to a master or person operating or in charge of a vessel to stop and (under clause 10) manoeuvre or secure a vessel. The clause 10 power is exercisable for compliance and investigative purposes. Clause 42 applies where a police officer or transport safety officer requires the person in charge of a vessel to produce a marine licence or certain other documents required by marine safety regulations to be displayed in or on the vessel. Clause 9 contains powers to stop rolling stock, road vehicles and buses, where a transport safety officer enters premises for compliance and investigative purposes under clause 6. The powers are limited to stopping the vessel or vehicle and giving directions for the compliance and investigative purposes of the provisions. Other than being required to remain in order to comply with requirements to produce a licence or other directions, the provisions do not authorise the detention of individuals. Clause 92 also enables an authorised officer to temporarily close a crossing, bridge or other structure, but only if necessary because of an immediate threat to safety. Clause 51 contains a similar power which may be exercised in the circumstances set out in clause 50(1), for example if a transport safety officer reasonably believes that a person is carrying out railway operations that threaten safety. Insofar as the powers limit freedom of movement of individuals, it is reasonable and justified under section 7 of the charter act given the importance of the purpose of Victoria's marine and public transport safety schemes, which are to better secure safety on our waters and to secure safety in respect of public transport, so far as is reasonably practicable. This includes ensuring that individuals operating vehicles and vessels are licensed to do so and are safe. I acknowledge that the powers to stop vehicles and vessels are not limited to circumstances in which the transport safety officer suspects that an offence has been committed. However, I consider that such powers are necessary to monitor compliance with the regulatory scheme, and to detect non-compliance. Directions to persons Clause 8, which contains general powers exercisable by a transport safety officer who enters a place or who boards a bus or a vessel under clause 6, includes a power to require persons to provide reasonable help. This extends to operating
a vessel, driving a train or to running the engine of a locomotive or bus. In addition, a person may be required to unload or open rolling stock. Insofar as this may limit a person's freedom of movement it is reasonable and justified for the purposes of the provisions. Restrictions on access to sites Clause 16 enables a transport safety officer or a police officer, for compliance and investigative purposes, to secure a site and restrict access to a site. It is an offence to enter or remain at the site. However, certain exceptions apply where a person enters or remains at a site to ensure the safety of persons, to remove deceased persons or animals, to move a road vehicle or its wreckage to a safe place, or to protect the environment from significant damage or pollution. Clause 71 also provides that a transport safety officer may serve a non-disturbance notice on a person requiring the person to preserve a site or prevent its disturbance. The notice may also require that certain rolling stock, a bus or vessel are preserved or not disturbed. These directions may again engage the freedom of movement. However, the power may only be exercised if the officer reasonably believes it is necessary to serve a non-disturbance notice to facilitate the exercise of his or her powers. Any limit upon freedom of movement effected by these provisions is minimal and for an appropriate purpose, and I consider them to be reasonable and justified. Privacy Section 13 of the charter act provides that a person has the right not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with. The right is engaged in particular by the various powers of entry, search and seizure in clauses 6 to 8 and 18 to 21. The right is also engaged by the requirements to provide information such as a person's name and address in clause 41 and to produce certain information or certificates under clause 42, and by the broader power to require production of documents and answer questions under clause 22. Entry, search and seizure Part 2 of the bill includes a range of entry, search and seizure powers. I consider that, insofar as the powers interfere with privacy, such interference is in accordance with law and is not arbitrary. Entry, search and seizure powers properly exercised are essential to the investigative and compliance functions of Victoria's local bus, rail and marine safety regulator. The powers are exercisable in constrained circumstances, are directed at important regulatory purposes and are subject to a range of safeguards. The powers of entry, search and seizure without warrant are primarily available in respect of commercial premises in which individuals have a limited expectation of privacy, namely premises which transport safety officers reasonably suspect to be marine premises or public transport premises, and buses and vessels which are in use. An officer who enters a place that is not marine premises or public transport premises is required by clause 6(2) to leave immediately. Clause 6(3) authorises entry into places adjoining marine premises or public transport premises, but this is only in the very limited and important circumstances where entry is urgently required for the purpose of dealing with a marine incident or a public transport incident. Otherwise, warrantless entry into residential premises is only authorised with the consent of the person with control or management, or the occupier or resident of the premises (see clause 46). The bill also prescribes clear processes where entry to premises without warrant is obtained. Clauses 6 and 7 require a transport safety officer to take all reasonable steps to notify the person with control or management of premises of the officer's entry, unless this would defeat the purpose of entry or cause unreasonable delay. If no-one is present, a notice must be left setting out what has been done, when and why, and the procedure for contacting the safety director for further details. Clause 49 also provides that, in exercising powers, officers must cause as little inconvenience as possible and must not remain on premises any longer than is reasonably necessary. The power to conduct a search pursuant to a warrant under clause 18 applies in relation to a broader range of premises, and may include residential premises. However, such searches are subject to the safeguards of the warrant process. Clause 18 provides that a warrant may be issued only if a magistrate is satisfied that there are reasonable grounds for suspecting that evidence of an offence against a transport safety or infrastructure law is, or may within the next 72 hours be, at the premises or on the rolling stock, bus or vessel. Various procedural safeguards are prescribed including procedures for announcement before entry and providing a copy of the warrant to relevant persons (clauses 20 and 21) and requiring provision of receipts for and copies of seized things (clauses 31 and 32). The bill also deals with instances where a film, photograph, video or digital recording or other image taken under the powers exercisable under clause 8 on entry to premises or boarding of a bus or vessel under clause 6 contains the likeness of a person. Clause 8(2) confirms that the film or other image is not inadmissible in evidence if the capturing of that likeness is incidental to the taking of the film or other recording or image. Insofar as this engages privacy rights, I do not consider that the right is limited as a result of this provision, which merely clarifies the extent to which the image or recording is admissible. Information-gathering powers Several provisions of the bill require a person to provide information that may be personal. However, not all information required or obtained under these provisions will be of a personal nature (indeed, it may be that none of the information obtained is personal information). Clause 41 empowers a transport safety officer to require a person to provide their name and address. While that information is personal in nature, any interference with privacy is reasonable and not arbitrary because the power may be exercised only for the important but limited purposes relating to the commission of offences. Further, clause 41(2) requires the officer to tell the person the reason for the requirement and to warn the person of the consequences of not complying. Similarly, clause 43 enables a direction to be given requiring a person to state the name, home and business address of another person associated with rolling stock, a bus or vessel, but again, the power may only be exercised for very limited purposes.
Clause 42 empowers police officers and transport safety officers to stop a vessel and to require production of certificates and licences. These documents may contain personal information and the powers are not limited to circumstances in which an offence is suspected. However, any interference with privacy is minimal and I consider it is reasonable and not arbitrary to require their production in order to monitor compliance with the marine safety scheme and ensure that masters and operators of marine vessels are appropriately licensed. Broader information-gathering powers are contained in clause 22. These powers are discussed in more detail below in respect of the privilege against self-incrimination. It is possible that some personal information may be required to be provided in the exercise of the power, but the power is limited to compliance and investigative purposes and clause 22(3) requires that interviews be conducted in private where the person so requests. To the extent that privacy may be interfered with I consider that it is lawful and not arbitrary. Property rights Section 20 of the charter act provides that a person must not be deprived of his or her property other than in accordance with law. The bill contains various provisions that interfere with a person's property. In particular, a person's property may be seized (both under warrant and otherwise under clauses 8(1)(i) and (j), 18, 19 and 27 of the bill) and sites (which may include property, vessels, buses and other vehicles, or rolling stock) may be secured under clause 16 of the bill. In limited circumstances, property may be forfeited to the state (clause 33). A person may also be directed to move a vessel, including for the purposes of detention (clauses 10 and 11), and to move other things including rolling stock (clauses 8(1)(l) and (4), and 9). Property may be inspected, examined, moved, entered or opened using reasonable force (clause 8(1)(e)). Equipment may be used to examine or process things (clause 15), electronic equipment may be operated (clause 14) and documents may be copied and retained (clauses 8(1)(c) and 26). Directions may also be given for the protection of evidence (clause 17). Supervisory intervention orders under clause 110 and exclusion orders under clause 111 may also have the effect of interfering with a person's use of their property. These provisions, broadly outlined above, may in certain circumstances amount to a deprivation of property. However, in my view, the powers are compatible with the right in s. 20 of the charter act. The circumstances in which property can be seized, secured, forfeited or otherwise interfered with are clearly specified, including by reference to the reasons for which powers can be exercised, and safeguards against the arbitrary deprivation of property are provided. Fair hearing and presumption of innocence Section 24 of the charter act guarantees the right to a fair hearing in both criminal and civil proceedings. In addition, specific minimum guarantees in criminal proceedings are provided in s. 25 of the charter act, including the right to be presumed innocent. Provisions affecting the way evidence is given and the burden of proof There are a number of provisions in the bill that alter the way that evidence may be given and affect the burden of proof. These provisions engage the right to a fair hearing and the right to be presumed innocent in s. 25(1) of the charter act. Clause 107 enables evidence to be given of certain matters by way of certificate. The certificate is proof of the matters stated unless evidence to the contrary is given by the accused. I consider that this provision is compatible with the rights in sections 24 and 25 of the charter act. While it alters the manner in which certain matters may be proved, the burden of proof remains on the prosecution. Having regard to the matters set out in clause 107 it is reasonable that the prosecution be able to prove each of those matters through a certificate. If the accused wishes to take issue with the evidence, this may be done by adducing evidence to the contrary, which should not be a difficult matter. Clause 98 provides that evidence of past convictions in respect of proceedings relating to a safety work infringement may also be used as evidence if a person is found guilty of the relevant charge where certain procedural steps have been taken. They can only apply after a person is found guilty and therefore do not affect the right to be presumed innocent. Procedural safeguards are put in place, including requiring consent of the accused if he or she is present in court, and I consider that the provisions are compatible with the right to a fair hearing. A number of provisions provide for offences, subject to the accused having a reasonable excuse. The consequence of these provisions is that the accused will bear the burden of adducing or pointing to evidence to establish a reasonable excuse. Once sufficient evidence is presented, the prosecution bears the burden of proving the absence of the reasonable excuse beyond reasonable doubt. Clause 8(3) provides that it is an offence for a person required to give reasonable help under section 8(1)(l) not to comply with the requirement without reasonable excuse. Reasonable help includes matters such as helping a transport safety officer to access electronically stored information, running the engine of a locomotive or bus, or operating a vessel. Clause 9(2) contains an offence to refuse to comply with directions about the operation and movement of rolling stock and vehicles without reasonable excuse. Clause 10(3) contains similar provisions about the movement and handling of vessels. Clause 22(6) provides that a person must not fail to produce documents or answer questions without reasonable excuse. Clauses 29(4) and 30(2) provide that it is an offence to fail to comply with a direction in relation to seizure without reasonable excuse. Under clause 41(4), a person must not fail to provide his or her name and address, and evidence of its correctness, without reasonable excuse. Clause 58 requires a person to comply with an improvement notice unless the person has a reasonable excuse for not doing so. Clause 63 contains a similar provision in respect of prohibition notices. Clause 73 also provides that it is not an offence to fail to comply with a non-disturbance notice if the person has a reasonable excuse. Clause 90(4) makes it an excuse for an accused to fail to comply with a direction in respect of safety reports without reasonable excuse. Clauses 91(4) and (6) also provide that a person must comply
with a direction in respect of works affecting a railway unless the person has a reasonable excuse. I consider that the imposition of an evidential burden on the accused with respect to establishing a reasonable excuse is reasonable and justified. In each case, the reasonable excuse will be within the knowledge and control of the accused, and it will be relatively easy for the accused to present evidence of it. In contrast, the prosecution may not know what excuse the accused will assert, and given the array of potential excuses that could be advanced it would be difficult or even impossible for the prosecution to prove an accused had no reasonable excuse. A number of provisions provide for more specific exceptions to offences. In these cases, the accused will bear the burden of adducing or pointing to evidence of the exception. Clause 16(3) provides that a person must not enter a secured site or board a restricted bus or vessel without permission. However, subclause (4) contains a number of exceptions such as entering to ensure the safety of persons. Clause 17(2) makes it an offence to fail or refuse to comply with a direction under subsection (1), to which subsection (3) sets out a range of exceptions. Clause 42(5) contains an exception to the offence of not providing a certificate, licence, exemption or other document when requested, if it is not on the vessel at the time the request to produce is made. I consider that the imposition of an evidential burden on the accused is reasonable and justified. In each case, whether an exception applies will be within the knowledge of the accused and evidence will be within their control. It will be relatively easy for the accused to point to or adduce that evidence. Infringement scheme The section 24 right is also engaged by division 2 of part 4 of the bill, which relates to safety work infringements. The bill provides that a safety work infringement notice may be served by a police officer following the recording of a prescribed amount of alcohol concentration in a rail safety worker's blood at the time of commission of the offence. The infringement penalty process involves an alternative dispute resolution process whereby a person may accept a penalty without a court hearing. If a safety work infringement notice is served, the safety work infringement takes effect as a conviction of the offence unless the rail safety worker to whom the notice was issued objects to the infringement notice within 28 days of the notice. Safety work infringements result in a conviction being recorded without a court hearing (in the same way as occurs with certain road traffic drink driving offences). However, a conviction is not recorded automatically if the person challenges the notice within the 28-day time limit. I consider that the infringement scheme is compatible with the right to a fair hearing and the presumption of innocence. While a conviction may be recorded without a hearing, the right to a hearing is preserved. A person who receives a safety work infringement notice has the right, in accordance with the procedure prescribed in the bill, to have the matter dealt with by a court. Fair hearing and privilege against self-incrimination Section 25(2) of the charter act provides for minimum guarantees in criminal proceedings. The right is engaged where the privilege against self-incrimination is abrogated. Section 25(2)(k) protects the right to be free from self-incrimination. This means that a person charged with a criminal offence may not be compelled to testify against himself or herself or to confess to guilt. This is also an important element of the right to a fair hearing. At the investigation and pre-trial stage, this includes the right to remain silent. Evidence obtained compulsorily may offend this right. Clause 22 provides transport safety officers with powers to require any person at searchable premises or on a searchable bus or vessel to say who has custody of a document and to answer any questions put to the person by the officer. A person must comply with a direction unless the person has a reasonable excuse for failing to comply. Clause 23 provides that a person is not excused from answering a question or providing information or a document on the ground that to do so would incriminate the person. However, the privilege against self-incrimination is protected by providing both a direct and indirect use immunity in clause 23(2), which ensures that neither the person's answer nor evidence obtained as a consequence of that answer can be used against that person in a criminal proceeding, other than a proceeding arising out of the answer being false or misleading. An exception to this is where the information or document that is obtained directly or indirectly as a consequence of the answer is information or a document that is required to be kept under the regulatory scheme, or is contained in such a document. To the extent that the exceptions in clause 23(3) limit the privilege against self-incrimination, I consider they are reasonable and justified. Pre-existing documents (as opposed to oral testimony) and information required to be kept under a regulatory scheme are generally accorded less protection under the privilege against self-incrimination. They are documents that a person is required to produce and keep as a consequence of their election to participate in the regulatory scheme. Ensuring that they are made available for investigatory and regulatory purposes, and ensuring they are able to be used in criminal proceedings including against those required to keep them, is essential to achieving compliance with the rail, bus and marine safety schemes in Victoria and the broader safety purposes of those schemes. The bill also provides a number of more specific information-gathering powers where, depending upon the circumstances, there is the potential for the answer to be incriminating or to lead to the discovery of incriminating evidence. Clause 41 empowers directions to provide a person's name and address. Clause 42 requires persons to produce licences and certificates. Clause 43 requires certain persons associated with rolling stock, buses and vessels to provide information regarding the identification and address of other persons associated with those vehicles. It is possible that providing the answer or producing the licence or certificate would, in some cases, incriminate the person or lead to the discovery of evidence that would do so. However, I consider that any limit on the privilege against self-incrimination is reasonable and justified. They are reasonable obligations that are necessary to ensure the regulator has access to essential information for purpose of monitoring and enforcing the regulatory scheme.
Conclusion The bill provides essential monitoring, compliance and investigative powers for Victoria's local rail, bus and marine safety schemes. For the reasons set out in this statement, I consider that the bill is compatible with the charter act. I consider that, to the extent that some provisions may limit charter act rights, the limitations are reasonable and demonstrably justified in a free and democratic society. Hon. Terry Mulder, MP Minister for Public Transport