Mr PALLAS (Tarneit) — I rise to address the  Transport Legislation Amendment (Marine Drug  and Alcohol Standards Modernisation and Other Matters)  Bill 2012. In so doing I  express  my  appreciation to the minister’s office and department for  their willingness to provide briefings to  me.  That  has  assisted  in  my appreciation of the bill and its import.

The opposition  takes issue  with  a number  of matters  in the  context of  the operation  of the  bill in the sense that it believes there are some substantial matters that the minister may wish to address, either in this chamber or at some stage during the passage of the bill in the other place, in order to ensure that the bill has better and more effective operation.

With this bill the government has in effect again failed to demonstrate  its own positive agenda. It  has  also demonstrated  a  dramatic failure to  consult  or maintain a  positive  relationship with  key  stakeholders in the  industry.  In fairness, the minister’s  introduction of the bill should be criticised  for the inadequacies  of  his statement of  compatibility,  which failed  to  mention or adequately identify provisions that have the potential to result  in breaches of the Victorian Charter of Human Rights and Responsibilities.

We believe the effective operation and management of marine safety in this state requires an acknowledgement  that safety should be  a primary consideration,  as should the interest and the effective delivery of  a  modern and viable industry for recreational boating.

During  my contribution on this bill I will be drawing  substantially  from  the Scrutiny of Acts and Regulations Committee’s report on  this bill dated Tuesday, 9 October 2012, and I indicate for the record  that I am greatly appreciative of the  committee’s work. Through  its provisions this  bill purports to  generally bring Victorian legislation in particular  areas into line  with developments in other portfolio areas — for example, bringing marine safety laws into line with road safety laws. The bill purports to  achieve some level of consistency in the manner in which this jurisdiction deals with marine safety issues in  regard  to other  jurisdictions, therefore  implementing Council  of Australian Governments (COAG) agreements on, for example, directors liability.

The government  has  attempted  to use  the  introduction  of  this  bill  quite inappropriately  to  argue  that it  is  fixing  problems left  by  the previous government. However, its  accusations  were  contradicted  by the minister’s own department  in  the  bill  briefing,  when  it  was  indicated  that  this  bill effectively merely  builds  on Labor’s  strong  record  on  marine  safety.  The government has  also failed  to keep  key stakeholders on side, even with a bill aimed at modernising safety provisions.

I make the point that this Parliament has spent a bit of time, particularly this week,  dealing  with  the  legislative  inadequacies  and  shortcomings  of  the government’s capacity to prosecute its own agenda in regard to, for example, sex offenders.  The bill itself makes  amendments to a  legislative regime that this government put  in  place in this  bill  — technical  amendments,  errors being rectified  —  but  nonetheless  the  minister  could  not  help  but  use   the second-reading speech  as an opportunity  to attack the previous  government for effectively putting in place the most comprehensive review of marine legislation this state has ever seen.

The bill updates the relevant legislation following the review of the previously available  powers —  agency  powers, powers  following  a  pollution event  and directors liability following a COAG agreement. The bill brings drug and alcohol standards into line with those  found in the Road  Safety Act, which has a  zero tolerance standard for alcohol and drug use beyond prescribed levels.

The principal part  of the bill  contains amendments updating and  strengthening provisions  of  the Marine Safety Act 2010 and the  Marine  (Drug,  Alcohol  and Pollution Control) Act 1988 against a person operating or being in control of  a vessel while under the  influence  of  alcohol  or other drugs. The intention in making these amendments is to bring marine practices  into line with those found in the Road Safety Act 1986.

These changes include the creation of the offence of operating a vessel while at or  over the prescribed drug concentration level, reducing  the prescribed level to .00  for persons  under 21  years of  age and  for those operating commercial vessels,  including  vessels that are  at  anchor, and the  extension  of police powers relating to  alcohol  offences to drug  offences.  The inclusion of  drug concentration levels is significant  because previously it  was only possible to charge a person if there was proof that they were under  the influence of a drug which was causing them to be unable to control the vessel.

This standard was difficult for police to prove in court, so it has been altered to allow changes on the basis of the presence of  a drug in a person’s breath or blood  sample. There  is  also  an  expansion  of  police powers,  including  in particular the  creation of  an offence of refusing to undergo a drug or alcohol test, and an extension of alcohol-related powers to drug-related offences.

The bill provides  further powers to  police  and transport safety  officers  to include the power to inspect vessels for safety equipment and to make provisions as  to  the movement  of  a  vessel. Relevant  penalties,  police procedures and evidentiary provisions are  also updated. The remainder  of the bill  deals with the transfer of the  responsibilities of a pollution  control function from  the director of transport safety to the Secretary of the Department of Transport. It also  removes the  requirement in the Marine Safety Act 2010  that a  vessel may only be registered in the name of a natural person.

The department has  advised us that this has caused significant difficulties for companies and associations, as a change of  personnel  can also require a change of registration for a vessel. That seems to be a sensible  amendment. There will be updates  and  relevant directors  liability  provisions  in  line  with  COAG principles,  as  is  occurring  across  all  portfolios. The  bill  also imposes licensing  requirements  on  persons  who  are  providing  prescribed  services, including  towage, and  it  amends two  typographical  errors  in the  Transport Legislation  Amendment  (Public Transport  Development  Authority)  Act  2011. I suppose we are using this legislation to fix up the government’s mistakes.

Labor has a positive record when it  comes to  marine safety.  The hoon  boating laws were introduced  in  Victoria in time for the 2009-10 boating season. Water police were given powers to leave dangerous boaters high and dry and effectively to ban their vessels from the water for up to 48 hours.

Mr PALLAS — It is good  to continue  my contribution  on this bill. Labor’s contribution to marine safety and its record  in  that respect are quite substantial, both in terms of introducing Australia’s first hoon boating laws in 2009-10 and also  providing police with  the capacity, through those  powers, to leave those  boaters  who misbehave on our  waterways high and dry for  up to 48 hours.  Victoria  was the first  jurisdiction in this nation  to introduce these laws. Many jurisdictions have subsequently followed.

Mr  PALLAS  —  A member on the other side  of  the chamber has asked why this legislation is being amended. His comments demonstrate his lack of cognisance of the fact  that legislation  is  always  being  amended.  In  fact I  say to  the eavesdropping member for Prahran, who is always looking for good advice from the opposition,  that  the  bill  before  us  today  seeks  to  make  amendments  to legislation that this government introduced only 12 months ago. If  he wanted to talk about stuff-ups, he could not find a more demonstrable example of one!

Labor introduced the marine criminal offences of culpable operation of a  vessel causing  death  and dangerous  operation  of a vessel  causing  death or serious injury. This closed a significant gap  in the hierarchy of sanctions. Previously there were no such sanctions under the Marine Act 1988.

There was  the offence of dangerous operation of a vessel, which  had a  maximum penalty of two years imprisonment, and there was the  Crimes Act 1958 offence of manslaughter, which had a maximum penalty of 20 years imprisonment. The  gap has been dealt with.

The  Brumby government  comprehensively  reviewed the  Marine  Act  1988. On  17 September 2010  the Marine  Safety Act 2010 was passed. The new act improved the ability of police and regulators to improve safety on the state’s waterways. New regulations have also played their part in improving marine  safety. Preliminary observations  include  a  substantial  increase in the  number  of  recreational boaters wearing lifejackets since the  former government’s regulations came into effect in December 2005.

Through the boating safety and facilities program,  which was established by the previous government and  maintained  by the  current  government, more than  $41 million was  invested in boating safety, education and facilities  over the term of the previous government. That $41  million provided boating safety grants for projects such as  boat ramps, new parking  facilities, new floating  jetties and pontoons, as well  as statewide education campaigns, navigation aids and  marine communications.  Labor  worked  with the  recreational  and  commercial  boating sectors to develop safety solutions  that  work  for  everybody.  It  was  about seaworthiness, licensing, registration and hoon activity.

An issue I wish to  address involves a comment made by the Minister for Ports in his second-reading speech for this bill where he said:

These changes  are  largely aimed at  correcting  errors made by  the previous  Labor government when it  rushed that legislation  through Parliament in 2010.  The  Victorian police raised their concerns following the  commencement of the  act on  1 July  2012 and  the government  indicated that we would correct this  situation at the first opportunity.

That is from Hansard of 12 September on page 4127.

During departmental briefings  it was confirmed that these deficiencies were not raised by the police with the previous government at the time  the Marine Safety Act 2010 was introduced. It was also noted that this point had been  raised with Victoria Police and  that the police had not  brought it to the attention of the minister’s department  and  had not  raised  the deficiencies  with  the current government until after the relevant legislative provisions came into effect.

Apparently the minister has a level of omnipotence, of all-knowing capacity, and he   was  just  doing  his  job.  He  took  the  opportunity  to  politicise   a second-reading speech  with inaccurate observations  that were not  borne out by his department. This minister is  a  recidivist.  He  has  done exactly the same thing in the past by misrepresenting amendments to a bill before this  place and saying that effectively those amendments were a result of omissions.

When one looks at the departmental briefing provided by the minister’s office on that bill, it is clear that those legislative amendments were part of the normal process of tidying up the legislation. This minister consistently  misrepresents and will regularly face a  lack of  goodwill and good faith from the bureaucracy — and from this side of the Parliament,  I might say — in  circumstances where he malevolently  seeks to misrepresent  the  efforts and endeavours  of previous governments.

This departmental advice directly  contradicts  the minister’s  politicised  and inaccurate second-reading  speech. The adjustments required only  became evident to the police after those relevant powers provided by the Marine Safety Act came into effect in July  this  year. The police did  not  raise the issue  with  the previous  government.  Let us be  clear about that. No  departmental advice ever raised these issues with the previous government.

When the Baillieu government introduced the Transport Legislation (Marine Safety and  Other Amendments) Bill 2011  last  year, it made no  mention of the need to update these provisions.

Is that a deficiency of this government? It is not, because this government does not  believe in taking responsibility for its own actions let alone the  actions of  the  previous  government.  This  government  constantly  seeks  to  deflect responsibility  for  its  errors and  omissions  and  nothing  could  be  a more transparently obvious  example  of  that  character flaw than the second-reading speech.  It  was an  inappropriate  use  of the  second-reading  process because second-reading  speeches  are  documents  that  are used  for  the  purposes  of statutory interpretation.

Further, the Marine Safety Act 2010 was not rushed through Parliament.

It was introduced before  a summer so that its  provisions would be in  place in time for the boating season.  The stakeholder consultation process  on that bill began in  November 2008,  and the  bill was  introduced  in  2010,  which is  an appreciably longer consultation process than any this minister has put in place. The  overblown  and misleading assertion  that this bill is  about correcting an error made by  the previous government are  is  a key piece of  rhetoric that is being used  to present  this bill. Rather the bill  is a  demonstration of  this government’s  own  agenda.  Perhaps  the  government   should  spend  more  time developing an agenda.

If members consider the stakeholders and their contributions, they will see that the government has repeated its failure  to engage stakeholders.  The government has put  the  boating industry offside.  Last year the industry  expressed grave concerns about the consultation process on the Marine Safety Regulations 2012.

According to members of the Boating Industry Association of Victoria — and they stated this publicly — the consultation process left  a lot  to be desired. The Boating Industry Association of Victoria was told about this legislation only on the day it was introduced.  The association had not been emailed any information until 5.30 p.m. on Friday after the introduction of this legislation. Members of the association now feel — and  I am using their own words — that nothing they say matters to this government.

Members of  the  association also expressed  concerns  that they  had  not  been sufficiently consulted  on  specific provisions of  the  bill. The  bill  amends section 28 of the Marine (Drug, Alcohol and  Pollution  Control) Act 1988, which deals with persons under the influence of alcohol or any other  drug, to include situations where vessels are at  anchor or  are under  way. The intention of the amendment to the act, as reported in the  departmental briefing to stakeholders, is to ensure that at all times the operation of a vessel could be performed by a capable  person.  Boating Industry Association  of Victoria members  report that they were told that the  intention was to prevent quick anchoring, to avoid police or to enable anchoring for the purposes  of  drinking.  The following new definition of ‘at anchor’ is inserted ‘at anchor, in relation to  a vessel, does not include  a vessel properly made fast at a registered mooring or at anchor at a  registered  mooring’.  This  means  that  only  those  operating  vessels  at registered moorings are effectively enabled to consume alcohol.

The  boating  industry  association members  have  raised  with  the  government concerns  that this is quite restrictive and  that  there  are  only  18  public registered moorings in Port Phillip Bay and  in the  Western Port area and about 2900 privately registered moorings, the majority  of which are in bad condition. The  association members  have argued that that is an area that should  not have been  brought into line with road safety because  of  the  potential  damage  to recreational boating.

This concern of  the association, which I would  urge the minister to look at in terms of the provision of adequate  infrastructure to accommodate the definition of ‘registered mooring’, could well mean that a person who is holidaying or on a houseboat  or yacht  will not  be able to  effectively moor  their boat  for the purposes of finishing their daily activities by having a drink with dinner. This issue is a legitimate concern.

Stakeholder groups  which  were  consulted  by  Labor  in regard  to  this  bill generally expressed  bemusement  as to  its  purpose. Members  of  the passenger boating industry  expressed concerns  about being  disproportionately  targeted. This government has managed to alienate stakeholders, leaving them unsure of the government’s program in relation to  this industry. Stakeholder  feedback on the Marine  Safety Act 2010 introduced  by Labor shows by  contrast almost unanimous support for the then government’s actions at the time.

Unlike the current government, the majority of the work of the former government in  developing  the  Marine  Safety  Act  involved stakeholder consultation.  In November  2008  and  March  2009  the Department of Transport hosted a series of marine safety workshops and attracted 800  people to those workshops. Discussion papers  were  released  in  July  2009,  which  attracted  400  submissions.  An overwhelming majority of those were supportive. The hard work was done.

The  Minister for Ports,  who  is at the table,  tried  his hardest to  whip  up opposition. However, a good demonstration of how to consult with people involves taking  time.  This minister  has  introduced legislation  in  a  hurry and  has alienated industry associations,  which are quite  happy  to say on  the  public record that they have been alienated. They publicly state and believe there is a massive  contrast between  the  way the previous  government  dealt with  marine safety issues and the way this government goes about its duties.

In the remaining 10 minutes of my contribution I will address issues in relation to  the   statement  of  compatibility   with   Charter  of  Human   Rights  and Responsibilities. The Scrutiny  of Acts and Regulations Committee (SARC) in  its investigations of this bill found a number of potentially gross breaches  of the Victorian  charter.  The committee  noted  the potential threat  to an accused’s right  to a fair trial  and  potential  violations  of  rights  to  privacy  and property.  The  committee was highly critical of the  minister’s  second-reading speech, as it failed to adequately mention  these important charter  provisions. SARC  raised  concerns about  these  provisions, which require  that  an accused person  who wishes  to show  that any  drugs found in a sample  were exclusively consumed after his or  her use of a marine  vessel must give sworn  evidence and ensure that his or her evidence is corroborated by another person.

The committee noted  that provisions may  engage  issues in relation  to charter rights, including the provision of a  fair hearing and the calling and examining of witnesses under the same conditions as a prosecution witness. In the  case of a court procedure concerning such an offence, the  accused  would be required to seek leave  before calling  an  analyst  of  a drug  sample to  testify but  the prosecution does not require leave.

Finally, there is the issue of  not  being compelled to testify against oneself, which is a  provision against self-incrimination.  An accused person is required to provide sworn evidence and to ensure that the evidence  is corroborated. This is the only  way an accused can call for evidence about an issue. This is a very substantial matter.  I urge  the minister to look at it seriously while the bill is between this chamber and the upper house. This seriously restricts the way in which an accused may conduct their defence.

It   requires  the   accused   to  give  evidence,   to  expose  themselves   to cross-examination and  to  adduce corroborating  evidence,  which the  committee notes is a requirement that Victoria is progressively abolishing from its common law.

The minister argues that  the requirements of the  presumption of innocence must be  satisfied because the prosecution must prove the presence of drugs; however, the offence is that ‘the person  operates  a  vessel  …  while  the prescribed concentration of drugs or  more than the  prescribed  concentration of drugs  is present in his or her blood or oral fluid’. The accused is obliged to testify if he or  she wishes to challenge this important  aspect  of  the  offence — that is, whether there  was an amount of drugs at  the  time  the accused was in control  of  the marine vessel. The prosecution is not required to prove all of the offence.

In the statement of compatibility for this bill the minister said:

The imposition of  an  evidential onus ensures that the defendant must put any  evidence explaining  his  or her behaviour,  or  reasons for  the  presence of  alcohol  or  drugs  in  his  or  her system. The presumption of  innocence  is  protected by requiring the prosecution to prove the behaviour or  the presence  of drugs or alcohol.

The statement goes on to say:

  An evidential onus would not be effective as it could be too easily discharged  by the defendant because tests will often be carried out after a person leaves  a vessel.

The minister’s second-reading speech states:

… it would be unduly difficult and onerous for  members of  the police force  to investigate and prove what steps the defendant took to discharge his or her  responsibilities.

Returning  to the statement  of compatibility, the minister concluded by saying, ‘I  consider that  the bill is compatible with the Charter  of Human  Rights and Responsibilities Act  2006’ and that any  limitations on human rights  under the bill are ‘demonstrably justified for the purposes of section 7(2) of the charter act’.

The  Scrutiny  of Acts  and  Regulations Committee  disagrees  robustly with the minister,  so much so that it sees this as one of the worst breaches in terms of compatibility with  the charter act. I  have taken members  through the concerns that SARC raised. This also  raises  a  more  substantial  point, which is: what value does this government place on joint parliamentary committees? Here we have a report that has identified some very substantial breaches. It may  be that the minister  takes the  view that  a breach  of those  rights  is warranted  in the circumstances of the mischief that is being sought  to be addressed, but we have not heard that from the minister in  his  justification  for those reductions of rights.

This  issue  was not adequately addressed by the minister in  his  statement  of compatibility,  in  which  he failed  to  expressly or  adequately  identify the reverse onus provisions in his discussion of rights in criminal proceedings.

The committee  also noted that the powers to search a vessel without a  warrant, consent or  grounds  to suspect a  contravention  may interfere with  rights  in relation to arbitrary or unlawful interference  with  privacy  as set out in the charter.

Furthermore,  there  is no requirement that the vessel be  on  state  waters.  A vessel to be  inspected  could  potentially  be  on  a  person’s land or private property. This  is a  very substantial  right. I understand that this may be  an unintended consequence of the  operation of this  bill, but if this  legislation does  not  clearly  specify that  the  vessel  itself  must  be  on  water,  law enforcement agencies will in effect have the  capacity to  use the presence of a vessel as justification to gain access to private property.

This is a substantial issue, and despite the fact that legislation moves quickly through this place I hope the minister  takes  seriously  the concerns that SARC has raised and gives them his  attention to  ensure that  no grave  injustice is served in terms of people’s intrinsic and fundamental rights in a democracy.

There is no requirement in this bill that  the owner be notified of the entry or search of a vessel, either before or after  it happens. That is a  major problem as well. It  goes  to  the  right of people to be  aware  of  access  to private property, if in fact  that is  the intention.  As SARC pointed out, the minister also failed  to  mention  this issue  in  his statement  of  compatibility.  The committee  will be writing to the minister on the subject of the  second-reading speech, noting  that it found the speech, in its words, inadequate or unhelpful. You could  not get  a more  dramatic  condemnation of  a minister  from a  joint parliamentary committee.  In  describing the purpose  or effect of  this  bill’s provisions, the minister stands accused by that joint parliamentary committee.

Through these changes,  there  is  a very real potential to infringe against the rights contained in the charter.

The former  Labor government had a positive record on marine safety, one that we are  proud  of and one that we have sought  to  ensure is not compromised by the constant capacity  of  this  government,  and  particularly  this  minister,  to describe any issues that confront him as  being the making and responsibility of the  previous  government. It  is  important  that we  continue  to  improve the operation of  marine safety legislation. The  minister’s inappropriate use  of a second-reading speech, the failure of this bill to adequately deal with what are very substantial charter rights and the failure of the minister in his statement of  compatibility with the  charter act to outline  those concerns properly have produced concern among members of the opposition.

In our view, the  bill threatens the right  of  all Victorians to a  fair  trial procedure as well as their rights in relation to privacy and property. The Baillieu government should concentrate on trying to develop  a positive  agenda  of its own  rather  than criticising positive  work undertaken by previous governments. The  government has been in power for nearly two years, but it is  still acting like it is an opposition in  exile. It should learn from Labor’s example and properly consult with those who will be  affected by legislative changes.

The opposition agonised  about what  position it  would take on this bill. It is essentially the opposition’s view  that we will not oppose the bill. However, we ask  that  the minister look  seriously  at  the  issues  raised  by  the  joint parliamentary   committee  when  the   bill  comes  to   the   upper  house  for consideration.  Our  position with respect  to  the upper house  will  be guided largely by whether this minister is prepared to think about the issues that have been presented to him.

We recognise the very real issues associated with  providing  an adequate  boating safety regime.  If  the minister wants  to  play politics with this, he can, but he had better recognise that there are some substantial rights at risk here. Whilst we do want  to protect people from inappropriate behaviour, the minister does need to behave properly himself.

See Tim’s speech in Hansard here.