Hansard debates

Ms D’AMBROSIO (Mill Park—Minister for Energy, Environment and Climate Change, Minister for Solar Homes) (10:26:39): In accordance with the Charter of Human Rights and Responsibilities Act 2006, I table a statement of compatibility in relation to the Energy Safety Legislation Amendment (Victorian Energy Safety Commission and Other Matters) Bill 2019. 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 Energy Safety Legislation Amendment (Victorian Energy Safety Commission and Other Matters) Bill 2019 (the Bill). In my opinion, the Bill, as introduced to the Legislative Assembly, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement. Overview The Bill: • amends the Energy Safe Victoria Act 2005 to establish a new governance structure for Energy Safe Victoria as a three-member Commission supported by a Chief Executive Officer, with a Ministerial power of direction and a Technical Advisory Committee appointed by the Minister, and thereby to strengthen Energy Safe Victoria’s regulatory decision-making and transform it into an effective, modern safety regulator; • amends the Electricity Safety Act 1998 to establish an electrical lineworker licensing scheme; and • makes consequential and related amendments to certain other Acts and for other purposes. Human rights issues Section 13—Privacy and reputation Section 13 of the Charter provides that a person has the right not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with, and the right not to have his or her reputation unlawfully attacked. The right to privacy is relevant to various provisions in the Bill which either require or permit the disclosure of personal information which may otherwise be considered private. Obtaining the personal information of applicants Clauses 3 to 9 of the Bill amend the Electricity Safety Act 1998 to establish an electrical lineworker licensing scheme, in the same way the Act now requires other kinds of electrical workers to be licensed. Under the Electricity Safety (Registration and Licensing) Regulations 2009, applicants for licences must provide information about their skills, qualifications and experience and this may include personal information. Although the right to privacy is relevant, persons who are seeking to participate in a regulated industry necessarily have a diminished expectation of privacy. The information that will be sought is necessary for determining an applicant’s eligibility to be licensed and for ensuring only appropriately qualified persons are engaged in linework on Victoria’s transmission, distribution and traction (rail and tram) networks. In my opinion, there will be no limitation on the right to privacy where information is obtained and handled within the confines of the Act and Regulations. Victorian Energy Safety Commission Under the Bill, the Victorian Energy Safety Commission (the Commission) will consist of three persons with skills, qualifications, knowledge and experience in relevant specified areas who are recommended by the Minister. The Bill also sets out the procedures by which the Commission will make its decisions and what disclosures must be made by its members. In particular, the new section 10M in clause 25 requires a Commissioner who has a pecuniary interest in a matter that is to be considered by the Commission to declare the nature of that pecuniary interest at a meeting of the Commission or, in the case of a disclosure by the Chairperson, to the Minister. Failure to do so may lead to removal from office under new section 10G(2) in clause 25. The new section 17 in clause 26 likewise requires the Chief Executive Officer to declare any pecuniary interest to the Commission. The requirement for Commissioners and Chief Executive Officer to declare pecuniary interests may operate to require the disclosure of personal information, including financial information. As such, it may engage the right in section 13(a) of the Charter. However, the requirements in new sections 10M and 17 are an important and appropriate means of avoiding potential conflicts of interest that could undermine the integrity and internal transparency of decision-making. The obligation is clear and confined, serves a legitimate purpose and does not arbitrarily limit the right to privacy. I therefore consider new sections 10M and 17 to be compatible with the right to privacy. The right to privacy and reputation in section 13 of the Charter may also be relevant to the appointment process for Commissioners and Acting Commissioners (new sections 10D and 10H in clause 25), the Chief Executive Officer and an Acting Chief Executive Officer (new sections 14 and 15 in clause 26) and members of the Technical Advisory Committee (new section 22F in clause 30). Appointees may be required to share information about their private lives such as their other interests, positions or associations. The Bill provides as well for removal from office of Commissioners (new section 10G in clause 25) which engages the right to privacy and reputation as a person’s private life may contribute to the ground for removal and removal may affect reputation. However, these provisions serve the legitimate purpose of ensuring appointment of appropriately skilled persons and are consistent with best practice principles of corporate governance. Accordingly, I consider that any interference with the right to privacy and reputation in the Bill is neither arbitrary nor unlawful. The provisions in question are clearly set out, underpin good governance and ensure that the Commission’s functions are performed free from any perception of bias or conflict of interest. For these reasons, I am satisfied that the Bill does not limit the right to privacy and reputation. Section 15—Freedom of expression Section 15 of the Charter provides that every person has the right to freedom of expression, which includes the freedom to impart information and ideas of all kinds. The right has also been held to include the right not to impart information. The right in section 15 of the Charter is relevant to clause 28 of the Bill which substitutes section 25 of the Energy Safe Victoria Act 2005 to prohibit a person who is, or has been, a Commissioner, the Chief Executive Officer, an employee and other specified persons from making improper use of any information acquired in the course of the person’s duties to obtain, directly or indirectly, any pecuniary or other advantage. The substituted section 25 makes it an offence to do so with a maximum penalty of 100 penalty units. The substituted section 25 is directed at ensuring the maintenance of confidentiality of information, which may include both private and commercial information, obtained during the course of a person’s duties and ensuring those with authority do not use information so gained to advance their own or another person’s interests. As such, to the extent that the substituted section 25 may impose a restriction on a person’s right to freedom of expression, I am satisfied that such a restriction is both lawful and reasonably necessary to respect the rights and reputations of other persons and for the purpose of public order within the exceptions in section 15(3) of the Charter. Section 18—Taking part in public life Section 18(2)(b) of the charter provides that every eligible person has the right, and is to have the opportunity, without discrimination, to have access to the Victorian public service and public office. This right requires access to positions in the public service and in public office to be based on general terms of equality. This right is engaged through several clauses of the Bill. As noted above, the Bill: sets criteria for appointment as a Commissioner or member of the Technical Advisory Committee; provides for terms and conditions of appointment as a Commissioner, the Chief Executive Officer and a member of the Technical Advisory Committee; provides for decisions by a quorum of two rather than three Commissioners; and excludes Commissioners from deliberating on matters in which they have declared a pecuniary interest. (See new sections 10B, 10D, 10K, 10M, 14, 22D and 22F in clauses 25, 26 and 30.) These provisions may be perceived as effecting a person’s access to the public service. In fact, they facilitate equal opportunity to the public service, based on general principles of merit, and facilitate effective governance practices. The criteria and processes for appointment and involvement in decision-making are objective, reasonable and non-discriminatory. The Bill also provides grounds for removing Commissioners (new section 10G in clause 25) and abolishes the existing Energy Safe Victoria and the office of Director of Energy Safe Victoria (new sections 45 and 46 in clause 32). These provisions engage and limit the right to take part in public life because they affect access to the public service for existing position holders. However, the provision for removal of Commissioners is justified to facilitate good corporate governance and to hold Commissioners to account for their responsibilities. Similarly, the abolition of the existing body and office of Director is necessary to establish the new governance framework. Therefore, I consider that to the extent that these provisions may be seen to impose a restriction on a person’s right take part in public life, they are reasonable limitations that are justified in a democratic society. Section 20—Right to property Section 20 of the Charter provides that a person must not be deprived of his or her property other than in accordance with law. This property right is relevant to several provisions in the Bill. As noted above, the Bill abolishes the existing Energy Safe Victoria and the office of Director of Energy Safe Victoria. The newly constituted Energy Safe Victoria will be the successor in law and any contracts, legal proceedings and other continuing matters will therefore not be affected. Staff will be transferred with all entitlements. (New sections 45, 46 and 48 in clause 32.) The holding of public office is not ordinarily regarded as property, so the loss of office as Director does not involve a loss of property rights. The rights of employees, contractors and others are protected by the Bill. Therefore, in my opinion the provisions of the bill are compatible with the right to property in section 20 of the Charter. Section 26—Right not to be tried or punished more than once Section 26 of the Charter provides that a person must not be tried or punished more than once for an offence in respect of which they have already been finally convicted or acquitted in accordance with law. This right is engaged by new section 10G in clause 25 of the Bill which provides for office of a Commissioner to become vacant if the Commissioner is convicted or found guilty of an indictable offence and for the Minister to recommend a Commissioner to be removed from office in the case of other offences under energy safety legislation. To the extent that new section 10G might limit rights under section 26 of the Charter, the limitation will protect the integrity of Energy Safe Victoria and public confidence in its operations. The purpose is not to impose further punishment, but rather is to ensure that only fit and proper persons hold office as Commissioners. Therefore, I am of the opinion that any limitation imposed by clause 25 of the Bill on the right of a person not to be punished more than once for an offence for which the person has been finally convicted is reasonable and justified under section 7(2) of the Charter. Conclusion For the above reasons, I consider that the Bill is compatible with the Charter of Human Rights and Responsibilities because to the extent that some provisions may limit human rights, those limitations are reasonable and demonstrably justified in a free and democratic society. Hon. Lily D’Ambrosio, MP Minister for Energy, Environment and Climate Change