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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-03-05 Daily Xml
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SUMMARY OFFENCES (FILMING OFFENCES) AMENDMENT BILL

Committee Stage

In committee.

Clause 1.

The Hon. S.G. WADE: I rise in committee to consider the Summary Offences (Filming Offences) Amendment Bill 2012. At clause 1, I clearly state that the opposition supports the objective of the bill to enact criminal sanctions for humiliating and degrading filming. We support moves to strengthen the law, but want it to be done in a targeted way, and we do not think the bill is targeted enough. We have made clear that we think a parliamentary committee would be a good forum to sharpen the focus of the bill. In that context I moved amendments to a motion that was before this place on the referral of a matter to the surveillance bill.

To assist the Chair, I advise that my contribution on this matter will be long, so the Chair might want to consider how to manage the dinner break. I have indicated to the whip and to the Leader of the Government that is the case. I will persist in making my comments; I shall not be curtailed.

The CHAIR: Are you saying that you will seek leave to conclude your remarks after the dinner break? You said that you have a lengthy contribution. We are coming up to the dinner break, so if we are coming back—

The Hon. S.G. WADE: The conduct of the house is completely in the hands of the government, and I am not proposing to take it out of the hands of the government. I would be surprised if this consideration took less than two hours. If the government wants to sit through the dinner break, is up to them, but I will not be curtailed.

The CHAIR: My question to you is that we have reached 6 o'clock. The Hon. Mr Wade is asking for two hours, so we will be returning after the dinner break.

The Hon. S.G. WADE: To clarify, I expect my comments and any responses the government may wish to give may take up to two hours.

The CHAIR: At clause 1; alright. Therefore, minister, are we going to dinner?

The Hon. G.E. Gago: We will get up at 6.30.

The CHAIR: Alright. The Hon. Mr Wade.

The Hon. S.G. WADE: I thank the minister for choosing to communicate with the house—it would have been helpful if it had been given earlier. Given that extra time, I take the opportunity to remind the house of the background as to why this committee stage will be unusual.

The CHAIR: I will give you some guidance: you will stick to clause 1 and you will not treat clause 1 as a second reading speech.

The Hon. S.G. WADE: No, it is not a second reading speech, sir. The only reason the committee stage in this case will be very fulsome is because I moved a motion for the referral of the surveillance bill to the Legislative Review Committee, and to refer the summary offences bill to that committee.

The CHAIR: I understand that.

The Hon. S.G. WADE: I remind members that, in the context of my agreement to withdraw that amendment for the referral of the surveillance bill to the Legislative Review Committee, I made clear that I was only agreeing to withdraw that amendment because honourable members felt that they could not consider that amendment without a stronger case as to why I had concerns with the Summary Offences (Filming Offences) Amendment Bill.

I raised those concerns at a higher level in my second reading speech. The Attorney-General chose to respond to that by letter. In a number of respects his letter did not actually address all of my concerns.

I do not blame him for that because my second reading contribution was general. In fact, it may assist the committee if I read that letter. I will just arrange for that letter to be brought down so that the committee can be informed of the government's response to my second reading contribution. The house already has a copy of my second reading speech.

As the committee knows, I think it is helpful that when we have interchanges and letters to make sure that that public has access to the record by putting on the record key contributions—obviously not every letter. I have about four letters on this bill from the Attorney. It might be helpful for me to put on the record the letter dated 28 February 2013, which was from the Attorney-General in response to my second reading contribution.

I remind members that my second reading contribution was a justification as to why it should be referred to the Legislative Review Committee, but I was aware at that stage that members felt the need to have a better understanding of the issues that I was trying to raise before they considered possible referral. So, I made those comments in broad terms and I indicated that, at the committee stage of this bill, I would outline my concerns in more detail, and that is why this will be a very unusual committee stage. That is why I will be making significant contributions in the form of comments, not in the form of questions. The government may well choose to make comments in response.

I make it clear to the government that I hope that they are not going to dishonour the goodwill that I showed by withdrawing my amendment in relation to the surveillance bill motion to broaden it to include the Summary Offences (Filming Offences) Bill, because I only did that on the basis that I would be given latitude at the committee stage to raise my concerns such that members could consider a separate reference. That reference, which we will consider at the end of the committee stage, could be in the form of an amendment to the reference that is already on the Legislative Review Committee, it could be in the form of a fresh reference to the Legislative Review Committee, or it might be a fresh select committee; so, in that sense, it is linked.

This discussion is linked back to the second reading debate and it anticipates whether or not the house considers that a reference to a committee is a wise move in relation to this particular piece of legislation. I raised my concerns in very broad terms and the Attorney-General kindly offered the following response by way of letter. The letter is dated 28 February 2013. It states:

Dear Mr Wade,

Summary Offences (Filming Offences) Amendment Bill 2013

I refer to the above bill and to your second reading contribution on 21 February 2013. The bill is listed as a government priority for the next sitting week. The purpose of this letter is to respond to the issues you raised in your second reading contribution and to request that you provide the opposition's amendments, if any, or any further queries to my office as soon as practicable.

Onus of proof

Without more information from you I can only assume the reference to a reversal of the onus of proof is in relation to the proposed new section 26B, subsection (7). This section was prepared after extensive consultation with media organisations. There is nothing particularly unusual about enacting a presumption of the nature contained within the proposed section. Please provide further particulars of your concern with this section.

Complex issues of consent

The bill certainly contains the concept of consent, but there is nothing particularly unique or complex about this. The statute books are littered with references to consent because the law generally takes the unexceptional position that what is done to a person with their informed consent is one thing; the same thing done to a person without their informed consent is quite another. Consent is a concept which depends upon its factual context for a precise meaning, which is an issue best left for the courts to determine in all of the circumstances of the particular case. Please explain which aspect of the bill you believe to be too complex.

The bill risks criminalising everyday or thoughtless behaviour

No, it does not. Please justify this sweeping generality with examples.

Subjective and objective elements

You suggest that further comment is needed in relation to the definition of a humiliating or a degrading act. The device employed by the bill within this definition is not new. This device balances the need for an objective check on the sometimes unreasonable sensitivities of the individual against the need to take into account general characteristics shared by the significant minority. The criminal law is well used to such a device. The most famous example is the test of the ordinary person in the law of provocation. You may wish to consider, for example, Masciantonio (1995) 183 CLR 58.

Right to privacy

The filming of another person without the person's consent certainly raises issues about that person's right to privacy, but this bill is not solely about consent to filming. This bill is about the lack of a criminal sanction aimed at those who would film someone who is being unwillingly subjected to a humiliating or degrading act. With respect, I cannot understand why the opposition would be willing to delay passage of this bill simply because it is linked with the privacy of the person being subjected to a humiliating or degrading act. I would have thought that the humiliating and degrading aspect of the conduct warranted prompt action by the parliament.

I trust this letter responds to the issues you raised during your second reading contributions. I look forward to receiving your response to this letter.

Yours sincerely,

John Rau

Deputy Premier, Attorney-General

It is appropriate that I respond to the letter, but I choose to do so by way of the committee stage of the bill, as I gave an undertaking to the house to do so. In terms of the issue the Attorney-General raises about delaying passage of the bill, the opposition has no intention of delaying the passage of the bill. We support the bill. I would remind the government that it has taken it two years from the initial announcement of this bill to bring it before the parliament. Surely, you would expect the parliament to give it due consideration.

As I said earlier, the second reading was an acknowledgement that I was withdrawing the motion in relation to surveillance devices and seeking in the committee stage to outline the opposition's case for further consideration of this bill in some form of parliamentary committee. Members have indicated to me that, while they are open to a referral, they wanted more details on the opposition's concern and for that matter an opportunity for the government to provide a response. It has been suggested that the best forum to consider a committee referral is the committee consideration of the bill. If, after the committee consideration of the bill, the council agrees with the opposition that further consideration by a parliamentary committee would assist, then a motion to refer could be considered at that point.

Accordingly, this is an unusual committee stage debate of a bill. After all, the committee stage debate usually focuses on proposed amendments and queries to the government, but the fact of the matter is that it is completely within the capacity of the council to make and seek comments in relation to a bill, and my particular comments will be highlighting issues that I think would benefit from further consideration by a parliamentary committee, whatever form that might take.

In that context, I would indicate that the opposition has been extremely flexible on this. When we first raised the issue with the Attorney-General in relation to a possible parliamentary consideration of this bill, we proposed that it be referred to a select committee. The Attorney-General was not attracted to that idea. In the context of his agreement to refer the surveillance bill to the Legislative Review Committee, we modified our suggestion and proposed instead that it be referred to the Legislative Review Committee.

The opposition does consider that there may be need for further amendment to the bill but, in our view, a parliamentary committee is better placed to consider the range of issues that the bill raises and promote a proper balance, so the focus of my comments in this committee stage will be on whether the bill will benefit from further consideration by a committee.

There are already bills on the Notice Paper that highlight the benefit of parliamentary committees in the passage of bills; I would remind honourable members of two. One is item No. 8 on today's Notice Paper, the Electoral (Miscellaneous) Amendment Bill (No. 117). It is significantly influenced by the joint select committee on electoral matters. That committee arose out of the concern of this council at the dodgy how-to-vote practices of the Labor Party at the last election. A number of the proposals in that bill can be traced back to the work of that committee—a committee which, by the way, was opposed by the Labor Party.

The other matter that has benefited from the contributions of a parliamentary committee is No. 10 on today's Notice Paper, the Statutes Amendment (Appeals) Bill (No. 119), and I acknowledge that, if the bill were significantly influenced by a parliamentary committee, even more credit is attributable to the contribution of the Hon. Ann Bressington. The Hon. Ann Bressington proposed a criminal cases review commission. As the Legislative Review Committee was looking at the proposal for a criminal cases review commission, they suggested changes to the statute law, which are reflected in that appeals bill.

There are other elements that the government has subsequently decided to add to that set, but I think it would be fair to say that that bill would not exist without the work of the Hon. Ann Bressington in bringing matters before this council and with the work of that parliamentary committee in relation to a bill then leading on to other proposals. We believe that parliamentary committees in this place have provided a valuable contribution to improving legislation.

To be frank, it is not as though the government is, if you like, as a matter of principle, opposed to parliamentary committees on bills. It was only in the last sitting week that the government moved the motion to refer the Surveillance Devices Bill 2012 to the Legislative Review Committee. The Leader of the Government in that context referred to the fact that:

Given the complexity of the issues that...the bill is attempting to grapple with, the government has agreed that these issues ought to be referred to the Legislative Review Committee for further consideration rather than being dealt with via contested amendments on the floor of this chamber...The government looks forward to considering the report of the committee in due course and then progressing the Surveillance Devices Bill 2012 to completion.

The opposition supported that approach, and I submit that the same situation applies here. There was no talk of the bill being blocked, and in that sense let me make the opposition position clear: if this council does not agree with us, and does not agree either to refer this bill to a committee or alternatively, and as the government has done in relation to surveillance devices, pause consideration while a parliamentary committee considers related matters, we will not seek to hold up the passage of the bill. We will accept the view of the council.

The committee stage of this bill, as reflected in the discussions of the last parliamentary week, is an opportunity for this council to pause and reflect as to whether we can best discharge our legislative review function by adding further consideration by a parliamentary committee. In terms of timeliness, in the discussions in relation to the Surveillance Devices Bill, the government indicated that it was keen for there to be no undue delay, and it was the shared view of the government and the opposition that consideration of that bill by committee should be able to be completed by winter.

The Legislative Review Committee is a standing committee of the parliament, and has a dedicated research officer and secretary. The workload at this time is such that the Surveillance Devices Bill fits in nicely with the other matters before the council, and it may well be that a conjoint consideration of the Summary Offences (Filming Offences) Amendment Bill could be considered in the same time frame.

Progress reported; committee to sit again.

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