Hansard debates

Ms PULFORD (Minister for Agriculture) 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'), I make this statement of compatibility with respect to the Firefighters' Presumptive Rights Compensation and Fire Services Legislation Amendment (Reform) Bill 2017.

In my opinion, the Firefighters' Presumptive Rights Compensation and Fire Services Legislation Amendment (Reform) Bill 2017 ('the bill'), as introduced to the Legislative Council, is compatible with human rights as set out in the charter. I base my opinion on the reasons outlined in this statement.

Overview of bill

The bill provides a rebuttable presumption that, for the purpose of claiming compensation under the Workplace Injury Rehabilitation and Compensation Act 2013, specified forms of cancer suffered by career and volunteer firefighters are due to the nature of their employment or service. The rebuttable presumption applies to diseases that occur on or after 1 June 2016, during a period in which the worker is employed or provides services as a firefighter; or within ten years after that time; or within a specified qualifying period prior to that time; or if the disease occurred outside the qualifying period but the worker attended a unique and exceptional exposure event in a firefighting capacity. A disease is taken to have occurred on the earliest of the day on which the worker is first diagnosed or dies by reason of the disease.

The bill does not amend the Workplace Injury Rehabilitation and Compensation Act 2013; however, it is to be read as if it forms part of that act, and claims to which the rebuttable presumption apply will be determined in accordance with the existing framework under that act.

The bill also amends the Metropolitan Fire Brigades Act 1958 ('the principal act') to modernise Victoria's fire services framework, particularly as it relates to metropolitan areas, by:

a.     establishing a new statutory authority to be called Fire Rescue Victoria (FRV), which will assume the existing functions and responsibilities of the Metropolitan Fire Brigade (MFB), as well as responsibility for the Country Fire Authority's (CFA) existing 35 integrated stations;

b.     establishing the office of the fire rescue commissioner which will have operational and management responsibility for FRV;

c.     amending the metropolitan fire district to the effect that:

i.      the FRV will have responsibility for the prevention and suppression of fire in Victoria's major cities and towns, covering what is presently the responsibility of the MFB and the areas for which the CFA's 35 integrated stations are presently responsible; and

ii.     the CFA will be reinstated to a volunteer-based organisation with responsibility for the prevention and suppression of fire in areas such as private land in rural Victoria which are not serviced by FRV or DELWP.

d.     establishing the Strategic Advisory Committee to provide strategic advice to the fire rescue commissioner on a range of organisational matters; and

e.     establishing the Fire District Review Panel to review the geographical scope of the metropolitan fire district and provide advice to the minister.

The bill also makes consequential and miscellaneous amendments to other acts and for other purposes.

Human rights issues

In my opinion, the human rights under the charter that are relevant to the bill are:

the right to freedom of movement as protected by section 12 of the charter;

the right to privacy as protected by section 13 of the charter;

the right to property under section 20 of the charter; and

the right to a fair hearing as protected by section 24 of the charter.

For the reasons outlined below, I am of the view that the bill is compatible with the charter because, to the extent that some provisions may limit human rights, those limitations are reasonable and demonstrably justified in a free and democratic society.

Right to freedom of movement

Section 12 of the charter establishes a right of freedom of movement according to which every person lawfully within Victoria has the right to move freely within Victoria.

Clause 48 will insert new section 20AB into the Country Fire Authority Act 1958 (CFA act) to allow the chief officer of the CFA to exercise a number of powers of the CFA in relation to volunteer brigades located in the Fire Rescue Victoria fire district for specified purposes, such as the duty of the CFA to prevent and suppress powers. These powers include the duty to summon once a month members of permanent brigades for practice and arranging for regular practices of members of volunteer brigades (CFA act, section 29(a)).

This power limits freedom of movement by requiring a person to attend a particular place at a particular time. However, these limitations are minor, and are reasonable and demonstrably justified in a free and democratic society, as these powers are necessary to support the preparation and training of volunteer brigades, which ensures that the CFA can function in a professional and effective manner, and can discharge its duties to prevent and suppress fires, and protect life and property.

Right to privacy

Section 13 of the charter states that a person has the right not to have their privacy unlawfully or arbitrarily interfered with and the right not to have their reputation unlawfully attacked.

Information sharing

Clause 19 of the bill specifies the intended interplay between claims made by volunteer firefighters under the Workplace Injury Rehabilitation Act 2013 and the Country Fire Authority Regulations 2014. For the purpose of properly processing such claims and avoiding inadvertent overcompensation, clause 19(8) of the bill provides that the Victorian WorkCover Authority (which processes claims under the Workplace Injury Rehabilitation Act 2013) and the Country Fire Authority (which processes claims under the Country Fire Authority Regulations 2014) may exchange any document produced or served or information acquired in respect of a proceeding or claim for compensation in relation to the same injury under each scheme.

This sharing of information may give rise to a prima facie interference with a claimant's privacy; however, it is clearly lawful by way of being permitted by this provision and serves the dual objectives of efficiency and maintaining the integrity of these two important compensation schemes. For these reasons, in my view any interference with privacy is therefore neither unlawful nor arbitrary, such that the right to privacy is not limited by the provision.

Power to keep records about members of fire brigades

Clause 48 will insert new section 20AB into the CFA act to allow the CFA to exercise a number of powers of the CFA in relation to volunteer brigades located in the Fire Rescue Victoria fire district for specified purposes, such as:

the power to register volunteer brigades (CFA act, section 23(1)(b)); and

the power to keep a register of the names, ages, occupations and addresses of members of volunteer brigades (CFA act, section 23(1)(c)).

As the bill will authorise these activities, the interference with privacy is not unlawful. In addition, the interference with privacy is not arbitrary, as the powers are for specified and limited purposes, and registering volunteer brigades and keeping a register that contains personal information about brigade members is necessary to ensure that the CFA can operate in a professional and effective manner (e.g. to ensure that there is a record of all brigade members if the CFA needs to summon them).

Inspection of brigades

Clause 48 will insert new section 20AB into the CFA act to allow the CFA to exercise a number of powers of the CFA in relation to volunteer brigades located in the Fire Rescue Victoria fire district for specified purposes, such as inspecting volunteer brigades and reporting to the CFA (CFA act, section 29(b)).

As the bill will authorise the inspections, the interference with privacy is not unlawful. In addition, the interference is not arbitrary, as inspections and reports are undertaken for specific purposes (such as assessing the efficiency of volunteer brigades) that are necessary to ensure that volunteer brigades operate in a professional and effective manner.

Property rights

Section 20 of the charter provides that a person must not be deprived of his or her property other than in accordance with law.

The bill will transfer rights, assets, liabilities and obligations from the CFA and MFB to the FRV, and this may affect the property rights of individuals (e.g. if the CFA owes a debt to a person). As the bill will transfer assets and will not alter any existing rights, assets, liabilities or obligations, section 20 of the charter is not engaged.

The bill may also affect property rights in other ways, such as allowing the CFA to exercise powers to collect contributions from volunteer brigades located in the Fire Rescue Victoria fire district (clause 48).

As the bill will authorise these activities, a person will only be deprived of his or her property in accordance with law.

Right to a fair hearing

Section 24 of the charter provides that a person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

Clauses 35, 49 and 50 provide for immunities for the fire rescue commissioner and officers or employees of Fire Rescue Victoria made available to the CFA. Where an immunity clause creates a procedural bar to bringing a claim, the right to a fair hearing may be relevant.

These measures are reasonable limitations that are demonstrably justified in a free and democratic society, as the immunities are necessary to maintain the independence of the fire services commissioner, and to ensure that officers or employees of Fire Rescue Victoria made available to the CFA can perform their functions effectively. In addition, these are consistent existing immunities regarding members of the Metropolitan Fire and Emergency Services Board and the CFA (which are in section 17 of the Metropolitan Fire Brigades Act 1958 and section 92 of the Country Fire Authority Act 1958 respectively).

The Hon. Philip Dalidakis, MP
Minister for Small Business, Innovation and Trade