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Statute Law Amendment (Charter of
Human Rights and Responsibilities)
Bill 2009
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
PART 1--PRELIMINARY
Clause 1 provides that the main purpose of the Bill is to make amendments
to various Acts to ensure compatibility with the Charter of
Human Rights and Responsibilities.
Clause 2 provides that the Act will commence operation on the day after
the day on which the Bill receives the Royal Assent.
PART 2--AMENDMENTS TO THE AUSTRALIAN GRANDS
PRIX ACT 1994
Clause 3 amends sections 51(5)(a) and 51(5)(b) of the Australian Grands
Prix Act 1994 to substitute an evidential burden for a legal
burden. Sections 51(5)(a) and 51(5)(b) relieve the prosecution
from proving an element of an offence against a regulation.
The prosecution can prove the element based on information it
could reasonably obtain and which is not information in the
knowledge of the defendant. The amendment is intended to
ensure compatibility with the right to be presumed innocent in
section 25 of the Charter of Human Rights and Responsibilities.
Clause 4 inserts a new section 52 into the Australian Grands Prix Act
1994 providing that despite the amendment inserted by clause 3
of this Bill, section 51(5) of the Australian Grands Prix Act
1994 continues to apply to any proceeding for an offence against
a regulation commenced but not finished before the
commencement of the amendment inserted by clause 3 of this
Bill. The amendment is a transitional provision.
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PART 3--AMENDMENTS TO THE EDUCATION AND
TRAINING REFORM ACT 2006
Clause 5 amends section 2.4.31(2) of the Education and Training
Reform Act 2006. Section 2.4.31(2) contains a provision which
discriminates on the ground of age. This clause is intended to
remove the discriminatory aspect of section 2.4.31(2) to ensure
compatibility with the right to recognition and equality before the
law in section 8 of the Charter of Human Rights and
Responsibilities.
This clause also inserts a new section 2.4.31(2A) into the
Education and Training Reform Act 2006 to provide for the
criteria for a person to be entitled to be re-employed.
This clause also inserts a new section 2.4.31(4) into the
Education and Training Reform Act 2006 to provide that a
person may apply to a Merit Protection Board for a review of a
decision by the Secretary to refuse to re-employ the person in the
teaching service if the person is not a member of the teaching
service and the grounds for the refusal are that the person does
not possess the qualifications or experience required by a
Ministerial Order necessary for re-employment to an on-going
position in the teaching service.
Clause 6 inserts a new section 2.4.53A(1) into the Education and
Training Reform Act 2006 to provide that where an application
for review is made under section 2.4.31(4), the Merit Review
Board must inquire into and determine the applicant's claim.
This clause also inserts a new section 2.4.53A(2) so as to provide
that where the Board is satisfied that the grounds of review are
established it may make an order requiring the Secretary to re-
consider the decision not to re-employ the applicant.
PART 4--AMENDMENTS TO THE FAIR TRADING ACT 1999
Clause 7 inserts a new section 4(2A) into the Fair Trading Act 1999 so as
to provide that in any proceeding for an offence under the Fair
Trading Act 1999 concerning a representation made by a natural
person about a future matter, the person making the
representation is deemed not to have had reasonable grounds for
making the representation unless the person adduces evidence to
the contrary.
Section 4(2) of the Fair Trading Act 1999 imposes a legal
burden of proof on defendants in relation to the making of future
representations. The clause is intended to qualify section 4(2) as
to impose an evidential burden on a person making a
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representation about a future matter in proceedings for an offence
against a natural person under the Fair Trading Act 1999.
The amendment is intended to ensure compatibility with the right
to be presumed innocent in section 25 of the Charter of Human
Rights and Responsibilities.
Clause 8 amends section 14(2) of the Fair Trading Act 1999 to provide
that it applies to proceedings against a body corporate.
The clause also inserts new section 14(3) into the Fair Trading
Act 1999 so as to provide that in any proceeding against a natural
person for an offence against section 14 of the Fair Trading Act
1999 a representation made by the defendant is deemed to be
false or misleading in any particular unless the person adduces
evidence to the contrary.
Section 14(2) of the Fair Trading Act 1999 imposes a legal
burden of proof on defendants in relation to the making of false
testimonials. The clause is intended to amend section 14 to
impose an evidential burden on a person making a representation
in proceedings against a natural person for an offence against
section 14. The amendment is intended to ensure compatibility
with the right to be presumed innocent in section 25 of the
Charter of Human Rights and Responsibilities.
Clause 9 inserts a new clause 14(1) into Schedule 3 to the Fair Trading
Act 1999 so as to provide that despite the amendment inserted by
clause 7 of this Bill, section 4(2) of the Fair Trading Act 1999
continues to apply to any proceeding for an offence that was
commenced under section 4 of the Fair Trading Act 1999 but
not finished before the commencement of clause 7 of this Bill.
This clause also inserts a new clause 14(2) into Schedule 3 to the
Fair Trading Act 1999 so as to provide that despite the
amendment inserted by clause 8 of this Bill, section 14(2) of the
Fair Trading Act 1999 continues to apply to any proceeding for
an offence that was commenced under section 14 of the Fair
Trading Act 1999 but not finished before the commencement of
clause 8 of this Bill.
PART 5--AMENDMENTS TO THE FORESTS ACT 1958
Clause 10 provides for the repeal of section 59(3) of the Forests Act 1958.
The effect of this amendment will be to require the prosecution to
prove all of the elements of the offence in section 59 of the
Forests Act 1958. The amendment is intended to ensure
compatibility with the right to be presumed innocent in
section 25 of the Charter of Human Rights and Responsibilities.
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Clause 11 amends section 61 of the Forests Act 1958. The effect of this
amendment will be to require the prosecution to prove all of the
elements of the offence in section 61 of the Forests Act 1958.
The amendment is intended to ensure compatibility with the right
to be presumed innocent in section 25 of the Charter of Human
Rights and Responsibilities.
Clause 12 inserts a new section 103 into the Forests Act 1958 so as to
provide that the amendments inserted by clauses 10 and 11 of this
Bill only apply to proceedings for an offence that are commenced
after commencement of Part 5 of this Bill.
PART 6--AMENDMENTS TO THE PROJECT
DEVELOPMENT AND CONSTRUCTION MANAGEMENT
ACT 1994
Clause 13 amends section 43 of the Project Development and
Construction Management Act 1994. Section 43 of the
Project Development and Construction Management Act
1994 makes it an offence for a person connected with a
nominated project to communicate information, except in
carrying out official duties or obligations, or within the scope of
other exemptions. The effect of the amendment is that the
offence will only relate to information obtained in confidence.
The amendment intends to ensure compatibility of the provision
with the right to freedom of expression in section 15 of the
Charter of Human Rights and Responsibilities. The clause also
inserts a new section 43(e) into the Project Development and
Construction Management Act 1994.
PART 7--AMENDMENTS TO THE TRANSPORT ACT 1983
Clause 14 amends section 228ZL(4) of the Transport Act 1983 so as to
provide that in proceedings for an offence against subsection
228ZL(3) of the Transport Act 1983, it is a reasonable excuse
if the direction was unreasonable. Section 228ZL(4) imposes a
legal burden on the defendant in relation to a defence.
The amendment in clause 14 relies on the operation of
section 130 of the Magistrates Court Act 1989, so that in
relation to the reasonable excuse, the defendant must present
or point to evidence that the direction was unreasonable.
This amendment removes the legal burden on the defendant and
is intended to ensure compatibility with section 25 of the Charter
of Human Rights and Responsibilities.
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Clause 15 amends section 228ZN(4) of the Transport Act 1983 so as
to substitute an evidentiary burden for a legal burden.
Section 228ZN(4) imposes a legal burden on the defendant in
relation to a defence. The amendment in clause 15 relies on the
operation of section 130 of the Magistrates Court Act 1989,
so that in relation to the defence, the defendant must present or
point to evidence that they did not have a business address.
This amendment removes the legal burden on the defendant and
is intended to ensure compatibility with section 25 of the Charter
of Human Rights and Responsibilities.
Clause 16 inserts a new Division 8 into Part VIII of the Transport Act
1983 so as to provide that despite the amendment made by
clause 14 of this Bill, section 228ZL(4) of the Transport Act
1983 as in force immediately before the commencement of
clause 14 of this Bill continues to apply in respect of proceedings
for an offence against that section which were commenced but
not finished before that commencement.
This clause also provides that despite the amendment made by
clause 15 of this Bill, section 228ZN(4) of the Transport Act
1983 as in force immediately before the commencement of
clause 15 of this Bill continues to apply in respect of proceedings
for an offence against that section which was commenced but not
finished before that commencement.
PART 8--AMENDMENTS TO THE VICTORIAN URBAN
DEVELOPMENT AUTHORITY ACT 2003
Clause 17 amends section 72 of the Victorian Urban Development
Authority Act 2003. Section 72 of the Victorian Urban
Development Authority Act 2003 makes it an offence for a
person connected with the Victorian Urban Development
Authority to communicate information gained because of that
connection, except in carrying out official duties or obligations,
or within the scope of other exemptions. The effect of the
amendment is that the offence will only relate to information
obtained in confidence. The amendment intends to ensure
compatibility of the provision with the right to freedom of
expression in section 15 of the Charter of Human Rights and
Responsibilities. The clause also inserts a new section 72(e) into
the Victorian Urban Development Authority Act 2003.
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PART 9--REPEAL OF AMENDING ACT
Clause 18 provides that the Statute Law Amendment (Charter of Human
Rights and Responsibilities) Bill 2009 is repealed on the first
anniversary of its commencement. The repeal of this Act does
not however affect the ongoing operation of the amendments
made by this Act (see section 15(1) of the Interpretation of
Legislation Act 1984).
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