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Legislative Assembly

16 October 2019
Statement of compatibility
Lily D'Ambrosio  (ALP)


Ms D’AMBROSIO (Mill Park—Minister for Energy, Environment and Climate Change, Minister for Solar Homes) (10:25:03): In accordance with the Charter of Human Rights and Responsibilities Act 2006, I table a statement of compatibility in relation to the Melbourne Strategic Assessment (Environment Mitigation Levy) Bill 2019. Opening paragraphs 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 Melbourne Strategic Assessment (Environment Mitigation Levy) 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 Most relevantly for present purposes, the Bill is intended to: 1) impose an environment mitigation levy on persons in respect of certain land, based on specified events; 2) require the Secretary to establish an 'environment mitigation information system’ for use in the calculation of the amount of levy that is payable, and which is capable of recording and making publicly available information and functions relevant to the calculation of the levy; 3) establish a scheme: a) for calculating and assessing a person’s levy liability; and b) allowing liable persons to both object to such assessments and apply to the Victorian Civil and Administrative Tribunal (VCAT) for review of the determination of those objections; 4) establish the Melbourne Strategic Assessment Fund: a) into which all amounts received as levies must be paid; and b) from which amounts will be paid on the Minister’s approval for purposes relating to the administration of the Bill and conservation in order to fund measures to mitigate impacts on the environment caused by the development of certain land. 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 and reputation, as protected under section 13 of the Charter; • the right to a fair hearing, as protected under section 24 of the Charter; and • property rights, as protected under section 20 of the Charter. For the reasons outlined below, in my opinion, the Bill is compatible with each of these rights. The right to privacy (section 13) 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. Requirements to provide information and power to enter onto Crown land Part 3, Division 5 of the Bill contains provisions that involve compulsory disclosure to the Secretary of certain construction-related information. Clause 43 requires a person responsible for the carrying out of certain works on Crown land in the levy area to provide the Secretary to the Department of Environment, Land, Water and Planning specified information (including the name and contact details of the entity that carried out the works and any occupier of the Crown land). Clause 44 requires the person responsible for the carrying out of building work on Crown land in the levy area to provide the Secretary a copy of the building permit application and certain other information, including the name and contact details of the applicant, any occupier and the relevant building surveyor. The Secretary also has power to request further specified information from a building surveyor (clause 112). While statutory compulsion of information such as name and contact details may in some circumstances interfere with the right to privacy, in the context of the regulation of land, this is unlikely to be so. This is because applicants and other persons connected with Crown land would expect that such information may be required in certain circumstances. In any event, the basis for any interference is set out clearly in law and is not arbitrary as the information is required for the proper administration of the levy. Part 7, Division 4 of the Bill also provides powers to gather information or documents in relation to Crown land, and to enter upon Crown land to search and inspect the land and any thing found on it. That power also includes a power to inspect and make copies of any documents found on the land or premises. Specifically, clause 111 permits the Secretary, in certain circumstances where a levy is or may be payable in respect of Crown land, to request in writing that a liable person or Crown land manager provide certain information or documents and provide these on oath or by statutory declaration. Information provided orally may be recorded. Clause 113 permits an authorised officer to enter Crown land for purposes relating to assessing liability to pay and the amount of a levy. Under clause 113(2), officers can search the land or premises or any thing on it, inspect the land or premises, record images or make sketches of the land, or inspect and make copies of, or take extracts from, any document kept on the land. In each provision under Part 7, Division 4 of the Bill, the powers are clearly set out and are strictly confined by reference to the purpose for which they can be exercised. Additionally, clause 113 is also subject to appropriate legislative safeguards. Specifically, the powers of entry and search under clause 113 cannot be exercised in relation to premises used for residential purposes except with the written consent of the occupier of the premises (clause 113(4)). Further, none of the powers in clause 113, including to enter, inspect and record images of the land, can be exercised if the authorised officer fails to produce, on request, an identity card issued to them by the Secretary. Accordingly, to the extent that these investigation powers could interfere with a person’s privacy, any interference would not constitute an unlawful or arbitrary interference. I therefore consider that neither of these provisions limit the right to privacy. Establishment of environment mitigation information system The right to privacy may also appear to be relevant to the establishment of the environment mitigation information system, which the Bill requires the Secretary to establish and maintain. However, in my view there is no substantive interference with the right. Specifically, clause 19 provides that the Secretary must establish and maintain a computer system capable of both recording certain details relating to land, and doing 'any other thing that the Secretary considers appropriate’. Under clause 20, the public must be given access to use the system, which would include access to the information gathered from and data stored in the system. In my view, these provisions do not interfere with any person’s right to privacy, as the information to be recorded and made accessible is not private in nature. Rather, the information primarily relates to the identification of certain types of land and geographic coordinates. Although the system may include other information that the Secretary considers appropriate, the inclusion of any further information would need to be compatible with the right to privacy and is unlikely to be private in nature. Right to a fair hearing (section 24(1)) 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. Evidentiary provisions Part 7, Division 5 provides for various presumptions to be made regarding the evidentiary value of certain documents, and as a result of the issue of a certificate. Clause 114 provides for a presumption that a document issued by the Secretary or their delegate is admissible in any proceeding and, in the absence of contrary evidence, is proof that the document was issued by the Secretary. Clause 115 provides that levy assessment notices (or apparent copies signed by the Secretary) are admissible as evidence in any proceeding, and in the absence of contrary evidence, are proof of certain matters, including the making and amount of an assessment and, a person’s liability to pay the levy. Finally, clause 116 provides that a certificate signed by the Secretary is admissible in any proceeding as evidence of certain matters stated in it, including a person’s liability, the making of an assessment, the amount of the levy or interest, and that the environment mitigation information system operated correctly and in accordance with prescribed standards. These clauses are intended in part to streamline proceedings brought under the Bill by providing prima facie proof of matters that are either unlikely to be controversial or would be unnecessarily onerous or burdensome to prove. The presumptions apply in both review proceedings relating to assessments of levy liability under the Bill and to civil debt recovery proceedings in the case of non-payment of an assessed levy liability. In the specific context of court proceedings to recover levy debts, clauses 115 and 116 also facilitate proof of matters that will or should have been determined within the applicable statutory process for assessment, objection and review. The provisions allow the Secretary to prove, absent any contrary evidence from a defendant, that all elements of the statutory debt (created by clause 50) are established. Many of the matters to be presumed or certified relate to evidence that ordinary processes for assessment have been followed, that assessments and determinations have been made, that amounts of liability are correctly stated, and that certain processes and systems involved are operating in the ordinary fashion. In respect of the evidencing of assessments, it is noted that clause 55 of the Bill permits the Secretary to refuse to consider an application for reassessment in certain circumstances, including where the Secretary considers the application to be frivolous, vexatious, misconceived or lacking in substance. The right to a fair hearing includes a right of access for a liable person to apply for an assessment. This clause imposes a reasonable limitation on this right. Such a limitation is appropriate and necessary in the circumstances, as it protects the Secretary from having to spend a disproportionate amount of time dealing with vexatious applications that are lacking in substance. In respect of the presumption that the environment mitigation information system operated correctly and in accordance with prescribed standards (clause 116(h)), there is a correlative obligation placed on the Secretary under clause 19(4), requiring him or her to ensure that the system does meet these standards. Further, and most importantly, a respondent can still lead evidence to the contrary challenging the evidence that is certified or the presumption in clause 115. 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. Given the considerations above, I am satisfied that the provisions do not limit the right to a fair hearing. Onus of proof on objection and review Clause 68 of the Bill provides that where a party objects to an assessment the onus of proof rests on the objector. Clause 80 imposes the same onus on a liable person seeking review of the Secretary’s determination (or non-determination) before VCAT. These provisions replicate the position of parties appealing decisions of the executive government in court proceedings. Consequently, I am satisfied that they do not limit the right to a fair hearing. Immunity of Registrar of Titles from certain claims Part 3, Division 6, imposes obligations on the Registrar of Titles, upon receiving applications lodged by the Secretary, to record notifications on a folio in the Register that a levy may be payable in relation to a lot, and to remove such notifications (clauses 46 and 48). Clause 49 provides that a person is not entitled to receive any damages or compensation from the Registrar for anything done by the Registrar in compliance with those clauses (or anything arising from that compliance). In effect, clause 49 provides the Registrar with a general immunity from liability for things done in relation to their obligations relating to the Register. The immunity from that liability confines claims that might otherwise have existed under statute or general law. As such, clause 49 affects the substantive content of legal rights which may otherwise exist in certain circumstances, rather than limiting a person’s access to a hearing to determine the application of existing rights. For these reasons, I consider that the new section does not engage the right in section 24 of the Charter. Right to property (section 20) Section 20 of the Charter establishes a right not to be deprived of property other than in accordance with law. The requirement that deprivation only occur in accordance with law includes a requirement that any such law not be arbitrary. This means that the law must be accessible to the public generally and the class of persons who are likely to be affected by the law in particular. The law must also be formulated with sufficient precision to enable those to whom it applies to guide their conduct accordingly. Similarly, clauses 35 (which empowers the Secretary to declare that a levy approved for staged payment but unpaid at the specified date is to be a charge on the land) and 113 (which, as noted above, provides entry and search powers in certain circumstances) may be viewed as interfering with proprietary interests. However, they do not amount to a limit on the right to property as protected by the Charter. The Bill makes consequential amendments to the Building Act 1993. New section 24(4A) of the Building Act will prohibit a surveyor from issuing a building permit in respect of land for which there is a levy recording under the Bill, unless the applicant for the permit produces a relevant certificate evidencing that the levy has been paid, is not required to be paid or a staged payment approval has been issued. Similarly, the Bill also amends the Subdivision Act 1988. New sub section (da) of existing section 5(3) of the Subdivision Act will require a person who wishes to have certain plans registered in respect of land for which there is a levy recording to obtain certain certificates relating to levy liability. While these provisions impact the ability of persons to deal with land they otherwise own, in my view this does not amount to a deprivation and, in any event, the regulation of those dealings is prescribed by law that is clear in its terms and application. Accordingly, I do not consider that this requirement limits the right to property. The Hon Lily D’Ambrosio Minister for Energy, Environment and Climate Change