Hansard debates

Mr PALLAS (Treasurer) 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 Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Bill 2015 (bill).

In my opinion, the bill, as introduced to the Legislative Assembly, is compatible with the human rights protected by the charter. I base my opinion on the reasons outlined in this statement.

Overview

The primary purposes of the bill are to authorise and facilitate the leasing of land and disposal of other assets of the Port of Melbourne Corporation to a private sector entity and to amend existing legislation to provide for an appropriate regulatory regime for the port of Melbourne.

Specifically, the bill (clause 131) inserts a new part 5C (Regulation of activities in the port of Melbourne) which is comprised of sections 88X to 88ZO in the Port Management Act 1995, which provides:

a port operator directions regime authorising the port of Melbourne operator to issue directions that regulate or prohibit certain activities in the leased port of Melbourne land for the purpose of maintaining or improving safety and security at the port;

an information gathering regime authorising the port of Melbourne operator to issue directions requiring specified persons to provide relevant information for allowable purposes.

For the purposes of this statement of compatibility, all references to 'port' are references to 'leased port of Melbourne land' as defined in the bill (see clause 78).

Human rights issues

Freedom of movement and right to liberty and security

Freedom of movement under section 12 of the charter provides that every person has the right to move freely within Victoria. The right to liberty and security under section 21 of the charter provides that a person must not be deprived of their liberty except on grounds and in accordance with procedures established by law.

Section 12 (freedom of movement) and section 21 (right to liberty and security) of the charter may be engaged by the operation of the bill (section 88Y) which empowers the port of Melbourne operator to issue directions regulating or prohibiting activities such as the driving, stopping and parking of vehicles, the movement, handling or storage of goods and any activity that may pose a risk to safety or security on the port.

The port of Melbourne operator may enforce compliance with a port operator direction by removing from the port any person who is contravening the direction.

The power to remove a person from the port does not authorise the port of Melbourne operator to detain or hold individuals for any length of time. In addition, compliance with a port operator direction is not mandatory where compliance would result in the person contravening a requirement imposed by or under an act.

The underlying purpose of this power is to maintain or improve safety and security at the port. Any interference with people's freedom of movement or liberty and security is carefully balanced against the important purpose of minimising safety and security risks to persons on the port. Access by members of the public to the port is limited, therefore the degree to which these rights may be engaged will be minimal in any event.

To the extent that an individual person might be temporarily deprived of his or her liberty when being removed from the port, the bill provides that such enforcement action must be on reasonable grounds, and in accordance with procedures established under the bill.

For these reasons, I consider any interference with a person's freedom of movement and right to liberty and security to be reasonable in the circumstances.

Right to privacy and reputation

Section 13(a) of the charter provides that a person has the right not to have his or her privacy unlawfully or arbitrarily interfered with.

Clause 131 of bill (section 88ZD) provides the port of Melbourne operator and its authorised officers with powers of entry at the port at any time to ascertain whether a direction has been complied with or contravened or to do anything that the operator is authorised to do to enforce compliance with a port operator direction.

Entry powers exercised properly and with authorisation, will be crucial to the performance of the functions of the port of Melbourne operator and its authorised officers to ensure the safety and security of persons and activities at the port is maintained and improved.

In practice, the exercise of the power to enter will be limited to non-residential premises at the port, and the degree to which the premises, and the things kept there, can be said to raise an expectation of personal privacy or property is minimal, especially in the regulatory context.

In addition, the bill provides an accountability and transparency safeguard that any exercise of the entry power by the port of Melbourne operator is a matter which is reportable to the minister within three months after the end of each six-month period ending on 30 June or 31 December, beginning the year 2015 (section 88ZG). Publication of reportable matters must not include information that identifies a person (or is likely to lead to the identification of a person) who has contravened a port operator direction (section 88ZH).

Authorised officers must also carry and produce identity cards before exercising their powers or if asked to do so by a person (section 88ZO).

To the extent that the bill could enable a person's privacy or property to be interfered with, which is likely to be minimal, I consider this limitation to be reasonable in the circumstances as it is neither unlawful nor arbitrary.

Lastly, clause 131 of the bill (section 88ZI) authorises the port of Melbourne operator to issue information directions requiring specified port users to provide relevant information for allowable purposes which does not include or relate to personal information. Accordingly, the right to privacy is not engaged in this context.

Right to property

Section 20 of the charter provides that a person must not be deprived of their property otherwise than in accordance with the law.

Clause 131 of the bill (section 88ZA) engages the right to property in section 20 of the charter because the port of Melbourne operator is empowered to enforce compliance with a port operator direction by removing from or moving within the port any vehicle that is stopped or parked and any goods stored in contravention of the direction. The power includes the power to place the vehicle or goods in secure storage pending return of the vehicle or goods to their owner. The Port of Management Act 1995 also provides important safeguards regarding people's property, including that all reasonable enquiries must be made to establish the identity or location of the owner of vehicles or goods (including advertising) and the owner must be compensated if the vehicle or goods are disposed of.

Given access to the port by members of the public is limited, the degree to which vehicles or goods on the port can be said to raise an expectation of personal property is minimal, especially in the regulatory context.

To the extent that the bill could enable a person's property to be interfered with in this context, I consider that as the bill clearly prescribes the circumstances in which vehicles or goods can be removed and securely stored, any deprivation of property is not unlawful.

Right to be presumed innocent

Section 25(1) of the charter provides that a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.

Clause 131 of the bill (section 88ZK) provides that it is an offence for a person, without reasonable excuse, to fail to comply with an information direction given to the person under division 3 of part 8 of the bill.

This provision enables a person who has a reasonable excuse to escape liability for what would otherwise be unlawful conduct and operates as a protection against the strict operation of the obligation to comply with an information direction. Consequently, the reasonable excuse exception provides a safeguard against an inappropriate application of the offence.

Where an accused wishes to rely on a reasonable excuse to avoid liability they will need to present or point to evidence that suggests a reasonable possibility of its existence. However, the provision does not transfer the legal burden of proof to the accused. Once an accused has pointed to such evidence, the prosecution will be required to prove there was no reasonable excuse.

An evidential onus on a defendant to raise a defence does not usually limit the presumption of innocence. For these reasons, I consider that the placing of an evidentiary burden on a person is not likely to constitute a limit on the right in section 25(1) of the charter.

Further, even if this were found to limit the right, the limitation would likely be reasonable and justifiable under section 7(2) of the charter, because there are no less restrictive means available to the port of Melbourne operator to obtain information for the allowable purposes under the bill.

Right to protection against self-incrimination and right to fair trial

Section 25(2)(k) of the charter provides that a person who has been charged with a criminal offence has the right not to be compelled to testify against himself or herself or to confess guilt. This is also an aspect of the right to a fair trial protected by section 24 of the charter which 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.

In my view, the right to a fair hearing is not engaged in relation to directions given by the port of Melbourne operator to a person under the bill. Nevertheless, this right is relevant to clauses of the bill relating to the subsequent use of information obtained under a direction to provide information.

The bill authorises the port of Melbourne operator to issue information directions requiring specified persons to provide relevant information that the port of Melbourne operator reasonably requires for allowable purposes, including monitoring compliance with port operator directions, determining liability for wharfage and channel fees, compiling statistics and coordinating communication at the port (relevant information). The specified persons are a limited number, and comprise masters of vessels berthing at the port, shipping agents, consignors or consignees for goods shipped to, from or within the port and operators of stevedoring or other facilities at the port.

As previously stated, it is an offence for a person, without reasonable excuse, to fail to comply with an information direction given to the person under division 3 of part 8 of the bill.

The information gathering regime is an important feature of the bill, especially in the regulatory context, because it provides the port of Melbourne operator with appropriate powers to obtain relevant information it reasonably requires for the effective operation and management of the port. The requirement to provide relevant information is unlikely to be onerous for specified persons as they are likely to hold such information in conducting their commercial and/or business activities at the port.

Division 3 of part 8 of the bill does not expressly abrogate the common law privilege against self-incrimination therefore not complying with an information direction on the basis that it may incriminate a person could be considered to be a reasonable excuse.

The extent to which compliance with an information direction may lead to self-incrimination is likely to be minimal because the type of information specified persons may be required to provide to the port of Melbourne operator will be business or commercial in nature. In this context, the bill provides that a duty of confidentiality is not a reasonable excuse for failure to comply with an information direction (section 88ZK(2)).

The restriction of the duty of confidentiality (which intended to be confined to its common law meaning) is balanced by section 88ZK(4) which provides that the provision of information that would otherwise constitute a breach of a duty of confidentiality does not constitute such a breach if the information is provided in compliance with an information direction.

The port of Melbourne operator is authorised to use and disclose information provided to it in compliance with an information direction for any allowable purpose for which it is authorised to require the information (section 88ZJ). Accordingly, the bill ensures that the use of the information is confined to the regulatory context in which it is obtained.

As previously stated, information directions requiring specified persons to provide relevant information for allowable purposes does not include or relate to personal information. Therefore the right to privacy in not engaged in this context.

The measures outlined above limit any possible disadvantage to a specified person who may be required to provide relevant information to the port of Melbourne operator. The bill seeks to balance the need for the port of Melbourne operator to use and disclose relevant information in connection with the operation and management of the port and the need to protect the rights of individuals who provide relevant information. I consider that there is no less restrictive means available to ensure this balance.

To the extent that the bill could enable a person's right to protection against self-incrimination and right to fair trial to be limited in compliance with an information direction, which is likely to be minimal, I consider that this is reasonable and justified.

Conclusion

For the reasons set out above, I consider that the bill is compatible with the human rights set out in the charter.

Tim Pallas, MP
Treasurer