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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-07-29 Daily Xml
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ELECTRICAL PRODUCTS (ENERGY PRODUCTS) AMENDMENT BILL

Committee Stage

In committee.

Clauses 1 to 14 passed.

Clause 15.

The Hon. A. BRESSINGTON: I move:

Page 11—

Line 9 [clause 15, inserted section 11(6)]—Delete 'Subject to subsection (7), a' and substitute 'A'

Lines 13 to 36 [clause 15, inserted section 11(7)]—Delete subsection (7)

As I argued in my second reading contribution, I am not comfortable extending the power to authorised officers under this act to demand information and documents at the expense of the fundamental common law right against self-incrimination, not to be confused, as the minister did, with self-discrimination.

In discussing my amendments with crossbench members, it is apparent that many determine whether we so empower authorised officers on a case by case basis specifically on the nexus between the power and the threat to public safety. While I do not necessarily disagree with this position, I make the point that we do not bestow these powers upon our police despite the very real probability for serious incidents or tragedies to be prevented.

As such, whether authorised officers have powers commensurate to royal commissioners becomes a threshold question of whether the power is reasonably needed to address, and I quote the Hon. David Ridgway, 'an imminent risk to public safety'. While I accept that this power is limited to section 8 of the act and as such will only be used in relation to safety incidents, I submit the power does meet the threshold outlined. This is largely because the regulator already has available to it the greatest power of all: the power to order the supplier to recall or take remedial action to ensure the safety of a product under threat of penalty, a power which we are enhancing by providing immunity to the crown, provided the power is exercised in good faith which, to make clear, will embolden the regulator to be more willing to recall suspected faulty energy products.

Further, any example in which the government can argue that an authorised officer may need these powers to protect the public, I suggest that the supplier already has the legal duty to assist authorised officers with any safety concerns. If a tragedy has occurred—as in the example used by the minister in another place—the supplier, being made aware of the safety issue, has a common law duty to every customer who has installed the energy product. To avoid a potential lawsuit, it is in their best interests to cooperate.

As I am aware, because the power is limited to unsafe energy products, many members believe the threshold to have been met and, as such, I do not have the support of the council. I will not continue to prosecute my case. I will, however, repeat my position of yesterday, namely, that we are being asked to extend to authorised officers powers that traditionally reside with royal commissioners and the like.

The Hon. S.G. WADE: I do not intend to speak for long because the Hon. Ann Bressington has summarised well the Liberal opposition's position. We have very strong concern about the increasing use of the provisions which remove the privilege against self-incrimination. We also have a related concern about the increasing use of authorised officers.

We share with apparently all crossbench members the view that one needs to balance the impact on safety and the impact on legal rights. On this matter for judgement, apparently the Hon. Ann Bressington has found that most of the crossbenchers have come down in favour of the removal of the privilege. As a Liberal opposition, we are disappointed about that because, having gone through the process ourselves, we thought that this was a case that did not justify removal.

It is not just that the reason has the word 'safety' in it that it suddenly becomes a carte blanche for the removal of a legal right. In that sense, I am reminded of the discussion we had in this council in relation to the South Australian Public Health Bill. We did not accept that, just because you had an emergency health need, legal rights needed to be abolished. So, we will continue to make a case-by-case judgement. We certainly do not take the view that safety overrides all other factors.

We certainly agree with the Hon. Ann Bressington that that primary recall function and the reasonable suspicion provisions already in the act gave sufficient confidence that safety issues could be addressed and that it was not justified to remove the privileges against self-incrimination. We are disappointed that other members of the council did not come to the same conclusion but, as I understand it, the Hon. Ann Bressington will not be dividing. We just want to put on record that we believe she raised a very significant issue worthy of consideration, as our shadow minister in the other place indicated.

The Hon. M. PARNELL: The Greens will not be supporting the amendments.

The Hon. R.P. WORTLEY: The government does not support the amendments. These amendments apply to the proposed modification of the privileges against self-incrimination. What the government proposed to become section 11(7) of the act is designed to achieve the highest possible level of public safety. The issue that the government is aiming to address arises when unsafe appliances have been sold. The technical regulator has power under section 8 of the act to prohibit the sale or use, or both, of unsafe appliances. Unfortunately, it is has often been difficult to gather information regarding how many of the unsafe products have been sold and to whom because the privilege against self-incrimination has been used by persons who fear that, by providing the information, they might incriminate themselves of an offence against section 8.

It is important to note that under the clause the privilege is only modified after a prohibition of sale and/or use of an appliance has already been issued by the Technical Regulator under section 8 of the act. The maximum penalty for a breach of section 8 is $10,000, and no term of imprisonment is prescribed. Once the sale or use of an unsafe appliance has been prohibited, it is important to trace purchasers of the product where ever possible so that relevant warnings be given directly to the purchasers.

It is proposed that the trader will be required to provide information, such as a list of customers who have purchased an unsafe appliance. It will however not be possible to use the information provided as evidence against the trader if the trader is a natural person or a director of a body corporate. Where the information is provided identifies purchasers of the appliance, any evidence from those purchasers would not be used in a prosecution.

In recent times there have been instances of small traders who have bought batches of unsafe or otherwise non-approved appliances from overseas via the internet and then sold them to their customers. This has occurred, for example, with respect to hair straighteners and aquarium heaters. The privilege prevented investigations from being completed.

In summary, the bill strengthens public safety whereas the amendment would have the effect of undermining it.

Amendments negatived; clause passed.

Remaining clauses (16 to 21), schedule and title passed.

Bill reported without amendment.

Third Reading

The Hon. G.E. GAGO (Minister for Regional Development, Minister for Public Sector Management, Minister for the Status of Women, Minister for Consumer Affairs, Minister for Government Enterprises, Minister for Gambling) (16:55): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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