Hansard debates

Mr PALLAS (Werribee—Treasurer, Minister for Economic Development, Minister for Industrial Relations) (10:07): In accordance with the Charter of Human Rights and Responsibilities Act 2006 I table a statement of compatibility in relation to the Zero and Low Emission Vehicle Distance-based Charge Bill 2021:

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (Charter), I make this Statement of Compatibility with respect to the Zero and Low Emission Vehicle Distance-Based Charge Bill 2021 (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 main purposes of the Bill are to:

• implement a distance-based charge which reflects the usage of roads by zero and low-emission vehicles (ZLEVs); and

• make related and consequential amendments to other Acts.

Human Rights Issues

Human rights protected by the Charter that are relevant to the Bill

The human rights protected by the Charter that are relevant to the Bill are:

• the right to privacy, as protected under section 13 of the Charter;

• the right to freedom of expression, as protected under section 15 of the Charter;

• property rights, as protected under section 20 of the Charter;

• the right to a fair hearing, as protected under section 24 of the Charter; and

• the right to a presumption of innocence, as protected under section 25 of the Charter.

For the reasons outlined below, in my opinion, the Bill is compatible with each of these rights and, therefore, the Charter.

Section 13—Privacy and reputation

Section 13(a) of the Charter provides that a person has the right not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with. An interference with privacy will not be ‘unlawful’ where it is permitted by a law which is precise and appropriately circumscribed.

Interferences with privacy will not be ‘arbitrary’ provided they are reasonable in the particular circumstances, and just and proportionate to the legitimate end they seek to achieve.

The rights in section 13 may be engaged by a number of clauses of the Bill:

Requirements to provide information to the Secretary or present a vehicle for inspection

Clause [212] requires a registered operator to lodge an initial declaration with the Secretary to the Department of Transport (Secretary) in relation to the first declaration period (defined in clause [211]) for the ZLEV within 14 days after the beginning of that period. Clause [214] provides that the registered operator of a ZLEV must lodge a declaration for each declaration period in respect of the ZLEV if the Secretary gives the registered owner a notice under clause [213] or within 14 days after the end day of the declaration period. The declaration must set out the odometer readings of the ZLEV or total distance travelled by the ZLEV, as well as any other information required by the Secretary. The Secretary also has the power, under clause [222], to request any further information and evidence that the Secretary reasonably requires to determine the amount of ZLEV charge payable by the registered operator.

Division 2 of Part 5 of the Bill permits the Secretary to appoint authorised officers to undertake inspections of a ZLEV for the purposes of verifying and confirming the odometer reading and identity of the relevant vehicle.

These provisions may interfere with the right to privacy. However, the powers are only exercisable for a limited purpose, namely, to enable the Secretary to determine the amount of ZLEV charge payable by the registered operator. Registered operators would expect that such information may be required, and it is reasonable for the Secretary to request information that goes directly to the use of the vehicle and the calculation of the charge or to inspect a vehicle in order to obtain such information. The provisions are for the important purpose of enabling the Secretary to administer the charge, and in turn improve the financial sustainability of Victoria’s road network. Further, the provisions are subject to appropriate notification requirements. Clause [213(1)] requires the Secretary to give the registered operator written notice of the requirement to lodge declarations subsequent to the initial declaration (in circumstances where the requirement is not arising as a result of the end of a declaration period) and clause [512(1)] requires that the Secretary give the registered operator written notice of the requirement to present the vehicle for inspection. Further, other safeguards on the exercise of the powers are in place. Clause [215] provides the Secretary with a power to, if the Secretary considers it appropriate to do so in all of the circumstances, waive the requirement to submit a declaration. Clause [512(2)] provides that a person given a notice under clause [512(1)] may request the Secretary to change the time or place of inspection.

To the extent that the above provisions will interfere with the right to privacy by requiring disclosure of personal information or submitting a vehicle for inspection, any such interference will be lawful and not arbitrary.

Use and disclosure of information obtained by the Secretary or a relevant person

Part 6 of the Bill provides for the Secretary (or a relevant person as defined in clause [601]) to disclose ‘relevant information’, such information being defined as information that is collected or received by the Secretary in relation to the ZLEV charge and identifies an individual or from which an individual’s identity can be reasonably ascertained (clause [601]). The information may be disclosed for a number of purposes outlined in clause [602] including: the administration of the Act or regulations; research, or the compilation or analysis of statistics, conducted in the public interest; the exercise of a power or the performance of a function under transport legislation; certain legal proceedings; and certain functions and activities when undertaken by or on behalf of a law enforcement agency.

By authorising the Secretary or a relevant person (defined as an employee in the Department of Transport, a person who is a delegate or sub-delegate of the Secretary, or a person engaged to provide services for the Secretary) to disclose personal information that is collected or received by the Secretary in relation to the ZLEV charge, these clauses of the Bill may interfere with the right to privacy in section 13 of the Charter. However, any such interferences will not be arbitrary or unlawful and will therefore be compatible with the Charter.

Although information may be shared for a number of different purposes, the type of information that can be shared is limited in that it is confined to information collected or received by the Secretary in relation to the ZLEV charge. Further, clause [603] contains an important safeguard in that it requires the Secretary or a relevant person to enter into an information protection agreement with a relevant person or body prior to any disclosure. An information protection agreement is required to, among other things, set out how the information will be protected and procedures for managing breaches of privacy. There are also a number of offences where there is a breach of the privacy requirements imposed by the Bill in clause [605].

Accordingly, I consider the above provisions to be compatible with the right to privacy under section 13(a) of the Charter.

Section 15—Right to freedom of expression

Section 15 of the Charter provides that every person has the right to hold an opinion without interference and has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds. Section 15 also provides that lawful restrictions may be reasonably necessary to respect personal rights and reputations, or for the protection of national security, public order, public health or public morality.

Clause [523] provides that it is an offence to include any information in a record or evidence required to be kept under clause [521] (being records and evidence that are necessary to enable the ZLEV charges in respect of the ZLEV to be properly determined), or in any declaration or other document lodged with or given to the Secretary under the Act knowing that the information is false or misleading in a material particular, or being reckless as to whether the information is false or misleading in a material particular.

This provision may limit the right to freedom of expression by restricting the kind of information that a person may impart, including through providing documents. However, to the extent that the right is limited, any such limitation would be reasonably justified. The prohibition is necessary to ensure the accuracy of the information provided to the Secretary, and, in the case of false or misleading information, does not apply where the person believes on reasonable grounds that the information was true or that it was not misleading. Further, the restriction is critical to ensuring the ZLEV charge scheme can effectively support the transition of Victoria’s vehicle fleet to ZLEVs, in order to improve the financial sustainability of Victoria’s road network. By reducing the risk that the Secretary’s decisions regarding the determination of ZLEV charges will be based on false or misleading information, or that a person will provide a misleading document or declaration, the provision reduces the risk that a ZLEV charge in respect of a ZLEV will be calculated inaccurately.

Accordingly, I consider this provision to be compatible with the right to freedom of expression under section 15 of the Charter.

Section 20—Property rights

Section 20 of the Charter provides that a person must not be deprived of their property other than in accordance with law. The right requires that powers which authorise the deprivation of property are conferred by legislation or common law, are confined and structured rather than unclear, are accessible to the public and are formulated precisely.

Part 3 of the Bill provides for the suspension or cancellation of registration of a ZLEV where there is a failure to lodge a declaration within the required time, to pay an invoice by the due date or to present a vehicle for inspection (clauses [301] and [311]). These provisions may engage section 20 of the Charter as, although the registered operator will retain formal title to the ZLEV, they are in effect prevented from lawfully using it on a highway. However, statutory rights, such as those arising from registration of a vehicle, are inherently subject to change, and for this reason, are less likely to be found to be proprietary rights.

To the extent that these clauses could be considered to deprive a person of property, any such deprivation will be appropriately tailored and confined and in accordance with law. The suspension or cancellation of registration of a ZLEV will only arise in circumstances where the registered operator has failed to comply with their obligations under the Act, and there are safeguards built into the legislation around the exercise of this power—including the ability seek review and appeal a decision of the Secretary to suspend or cancel registration in Part 4 of the Bill. The Secretary is also required to lift suspension if non-compliance is rectified under clause [305] of the Bill.

Accordingly, the provisions conferring the power to suspend or cancel registration do not limit the right to property under section 20 of the Charter.

Section 24—Fair Hearing

Section 24(1) 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. The Charter right to a fair hearing is not limited to judicial proceedings and can include administrative proceedings. The fair hearing right encompasses the concept of procedural fairness, which includes the requirement that a party have a reasonable opportunity to put their case under conditions which do not place that party at a substantial disadvantage relative to their opponent.

The right to a fair hearing may be engaged by provisions in the Bill which provide for various presumptions to be made regarding the evidentiary value of certain documents and determinations made by the Secretary.

The following provisions provide for a presumption that a document, invoice or certificate issued by the Secretary is admissible in legal proceedings (both civil and criminal) under the Act and, in the absence of evidence to the contrary, are proof of certain matters:

• Clause [711] provides for a presumption that a document issued by the Secretary (or their delegate) is admissible in legal proceedings under the Act and, in the absence of evidence to the contrary, is proof that the document has been issued by the Secretary (or delegate) and all requirements for issuing of the document have been complied with.

• Clause [712] provides that production of an invoice is admissible in evidence in legal proceedings under the Act and, in the absence of evidence to the contrary, is proof of the due issuing of the invoice, that the person named in the invoice as the registered operator of the ZLEV to which the invoice relates is the registered operator of the vehicle and is liable to pay the ZLEV charge in the invoice, the ZLEV charge stated in the invoice has been determined correctly, and all other details in the invoice are correct.

• Clause [713] provides that a certificate signed by the Secretary that states any of a number of prescribed matters is admissible in legal proceedings under the Act, including the registered operator’s liability and the calculation of the ZLEV charge or interest.

In respect of determinations made by the Secretary, clause [431] of the Bill provides that where a party objects to the Secretary’s calculation of the charge or in respect of the suspension or cancellation of the registration of a ZLEV, the onus of proof rests on the objector. Clause [442] imposes the same onus on a liable person seeking review of the Secretary’s determination (or non-determination) before VCAT.

These clauses are intended in part to streamline proceedings brought under the Act by providing prima facie proof of matters that are either unlikely to be controversial or would be unnecessarily onerous or burdensome to prove. The evidentiary presumptions apply to all legal proceedings under the Act, which include criminal proceedings for offences under the Act, review proceedings relating to calculation of the charge under the Act, and to civil debt recovery proceedings in the case of non-payment of the charge. The onus of proof in clauses [431] and [442] applies to objections and review proceedings.

In the specific context of court proceedings to recover unpaid amounts of the charge, clauses [712 and 713] also facilitate proof of matters that will or should have been determined within the applicable statutory process for calculation (including any objection and review process). The provisions allow the Secretary to prove, absent any contrary evidence from a defendant, that all elements of the statutory debt (created by clause [501]) are established. Many of the matters to be presumed or certified relate to evidence that ordinary processes for calculation have been followed, that amounts of liability are correctly stated, and that certain processes and systems involved are operating in the ordinary fashion.

Importantly, an objector can still lead evidence to the contrary challenging the evidence that is certified or the presumption in clauses [711 and 712]. Finally, the presumptions do not interfere with a court or tribunal’s ability to conduct its proceedings as it sees fit, including the manner in which it evaluates competing evidence, or the way it affords procedural fairness.

In my view, the above provisions do not impose any unreasonable requirements on a registered operator in objecting to decisions or as a party to legal proceedings under the Act. As such, the right to fair hearing is not limited.

For the above reasons, I consider the Bill to be compatible with section 24 of the Charter.

Section 25(1)—Presumption of innocence

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. The right in section 25(1) is relevant where a statutory provision shifts the burden of proof onto an accused in a criminal proceeding, so that the accused is required to prove matters to establish, or raise evidence to suggest, that they are not guilty of an offence.

The Bill contains a number of provisions imposing an ‘evidentiary burden’:

• Clause [512(4)] of the Bill, which provides that it is an offence to fail to comply, without reasonable excuse, with a notice from the Secretary under clauses [512(1)] or [512(3)] requiring inspection of a ZLEV for the purposes of verifying odometer readings. Clause [512(5)] makes clear that a person does not commit an offence against clause [512(4)] if the person has a reasonable excuse for failing to comply with the notice.

• Clauses [521(1) and 522(2)] of the Bill, which provide that it is an offence to not retain all records and evidence that are necessary to enable the ZLEV charges to be properly determined for a period of 5 years after such record or evidence was made or obtained. Clauses [521(2) and 522(2)] provide that these offences do not apply if the registered operator has a reasonable excuse for non-compliance.

• Clauses [711, 712 and 713] of the Bill, which provide for a presumption that a document, invoice or certificate issued by the Secretary is admissible in legal proceedings under the Act and, in the absence of evidence to the contrary, is proof of certain matters. These provisions are discussed in more detail under the right to a fair hearing.

In my view, although these provisions require an accused to adduce certain evidence, they do not limit the right to be presumed innocent. The prosecution must still prove the essential elements of the relevance offences; an accused need not prove any matters in order to escape liability. Therefore, the right to be presumed innocent under s 25(1) of the Charter is not limited.

For the above reasons, I consider the Bill to be compatible with section 25(1) of the Charter.

Tim Pallas, MP

Treasurer