Tuesday, August 28, 2007
Sunday, August 26, 2007
Hansard - Confiscation Amendment Bill
CONFISCATION AMENDMENT BILL
Second reading
Mr WAKELING (Ferntree Gully) – It gives me pleasure to rise to speak on the Confiscation Amendment Bill. I listened with great interest to the contribution from the member for Bentleigh because this was a classic case of a member trying to defend the indefensible.
I was listening with great interest to his discussion, not only about this bill but in terms of the Charter of Human Rights and Responsibilities Act 2006, which I will deal with in a moment. It is very interesting to hear the spin that members opposite will put on any piece of legislation to try to cop out of a sound and rational argument that has been put by the member for Box Hill and also by the Leader of The Nationals.
By way of background, the confiscation laws dated back to 1986 and more recently to 1997, when the then Attorney-General, Mrs Jan Wade, introduced the confiscation legislation. As has been explained before, churlishly the now Attorney-General referred to Mrs Wade as a 'fascist'. One could only think that the Attorney-General is probably the only person in this house who would use such language. Of course we have recently been told by the new Premier that we now have a warm and cuddly Attorney-General as opposed to the mean and nasty one we had before.
It will be interesting to see if that language will continue in this house.
The amendments that were put forward in 2004, as the member for Box Hill has pointed out, were opposed by the Liberal Party because they went beyond the intention of the original legislation. As the member for Box Hill indicated, the government has been unable to demonstrate areas in which it has been able to make major seizures in regard to the confiscation of property through ill-gotten gains. I listened with interest to the berating by the member for Bentleigh. Again, there was a lot of spin but a lack of substance in his attack on the member for Box Hill. We will wait with interest to see future reports in regard to confiscation.
One thing that is of interest is that, as with a lot of legislation that comes into this house, it has taken this government a long time to make changes. This piece of legislation is no different.
The Court of Appeal decision occurred in February of 2007, and here we are in August debating this piece of legislation. Again, this is another example of this state government being lax in dealing with issues effectively and dealing with issues in a timely manner.
The first component of the bill deals with the allowance of properties to be confiscated with respect to an applicant's interest in the property and not specifically the entire property. As has been explained before, this comes about because of a Court of Appeal decision in Director of Public Prosecutions v. Phan Thi Le, in which case there was much argument by the wife of a convicted drug dealer with respect to her interest in a particular property. This provision will clarify that the confiscation will apply to the interests of the person concerned - namely, the defendant.
The second component deals with inserting a definition of derived property, which deals with property derived from criminal activity. What will result as a consequence of this amendment is that there will not be a requirement for a nexus between the specific action for which the person has been charged and the property they have derived as a consequence of that specific action. Any criminal activity from previous events can be linked to the seizure of this property. As explained to us through our bill briefing, this concern has been raised by both the police and the DPP (Director of Public Prosecutions).
The third component involves the applying of a test of whether a defendant has effective control of property at the time, in which case it can be confiscated even if was legally held by someone else at the time the defendant is charged or the property is restrained. This is obviously to overcome issues of whether or not a person has effective control of a property - for example, during a court case, when in effect they could argue that as they were in jail they did not have effective control.
The final major area of change involves making clear that property previously owned by the defendant but which has been transferred to someone else can only be excluded from confiscation if the property was transferred for a consideration that reflects market value. This provision obviously does not relate to a property that is purely gifted or transferred. This again was an issue that was raised in the DPP case of February 2007.
We have a number of concerns about the process and the proposed legislation. I would like to deal with two of them. Firstly, we on this side of the house have grave concerns about any legislative change with respect to retrospectivity. We always believe there is a requirement to be cautious in dealing with such issues. I would like to highlight that this legislation, if passed, will result in a direct challenge to the full bench's decision in the Phan Thi Le case. What the Attorney-General should do is publicly come out and state that this piece of legislation is as a direct result of that decision and an open challenge of that decision. It is all good and well for those opposite to sit there and cast aspersions on the federal Attorney-General when the federal Attorney-General makes comments on criminal cases, but it is now time that this Attorney-General stood up and stated publicly what this is all about. This amendment is as a direct result of the full bench's decision and he should put it as such.
The final area I would like to talk is the Charter of Human Rights and Responsibilities. This bill was much heralded by those within the Labor Party because it was about sectional interests. It appeals to those sectional interests within the Labor Party because they can then demonstrate that they are holding firm to the Labor cause. It was for no reason other than that that they trumpeted the much heralded human rights and responsibilities. The Liberal Party and The Nationals had the audacity to highlight problems with the legislation, because what the Liberal Party and The Nationals have said is that there will be occasions when the Labor Party will not be able to apply the charter of human rights. Surprise, surprise! What in fact has happened with this bill, as with other pieces of legislation, is they cannot apply the terms of this charter.
As the member for Box Hill has pointed out, and as the member for Bentleigh commented on but obviously did not understand, this piece of state legislation, which is applied to all pieces of legislation in this state, says:
A penalty must not be imposed on any person for a criminal offence that is greater than the penalty that applied to the offence when it was committed.
It does not matter what spin the member for Bentleigh or those opposite put on this. The reality is that provisions like this will mean that that provision will apply in the future to people caught by this piece of legislation. The most important thing those opposite need to sit back and recognise is that they have a piece of legislation that they have put through because of an ideological bent, but at the end of the day, if they are going to apply the provisions of their own legislation, they need to recognise that it will impact on future legislation such as this bill and other bills that will come before this house.
One only needs read the statement of compatibility that was attached to this bill.
Members opposite squirmed their way through it and tried to come up with a sensible solution, but the reality is when the statement of compatibility dealt with this clause and other clauses, government members could not answer the simple question that there is a fundamental breach of that provision. Whilst the Liberal Party will be supportive of the bill, it is incumbent upon the government to own up to the fact that this bill, like other pieces of legislation, breaches their own charter, and they need to accept that fact publicly.
Source: http://www.parliament.vic.gov.au/downloadhansard/assembly.htm
Second reading
Mr WAKELING (Ferntree Gully) – It gives me pleasure to rise to speak on the Confiscation Amendment Bill. I listened with great interest to the contribution from the member for Bentleigh because this was a classic case of a member trying to defend the indefensible.
I was listening with great interest to his discussion, not only about this bill but in terms of the Charter of Human Rights and Responsibilities Act 2006, which I will deal with in a moment. It is very interesting to hear the spin that members opposite will put on any piece of legislation to try to cop out of a sound and rational argument that has been put by the member for Box Hill and also by the Leader of The Nationals.
By way of background, the confiscation laws dated back to 1986 and more recently to 1997, when the then Attorney-General, Mrs Jan Wade, introduced the confiscation legislation. As has been explained before, churlishly the now Attorney-General referred to Mrs Wade as a 'fascist'. One could only think that the Attorney-General is probably the only person in this house who would use such language. Of course we have recently been told by the new Premier that we now have a warm and cuddly Attorney-General as opposed to the mean and nasty one we had before.
It will be interesting to see if that language will continue in this house.
The amendments that were put forward in 2004, as the member for Box Hill has pointed out, were opposed by the Liberal Party because they went beyond the intention of the original legislation. As the member for Box Hill indicated, the government has been unable to demonstrate areas in which it has been able to make major seizures in regard to the confiscation of property through ill-gotten gains. I listened with interest to the berating by the member for Bentleigh. Again, there was a lot of spin but a lack of substance in his attack on the member for Box Hill. We will wait with interest to see future reports in regard to confiscation.
One thing that is of interest is that, as with a lot of legislation that comes into this house, it has taken this government a long time to make changes. This piece of legislation is no different.
The Court of Appeal decision occurred in February of 2007, and here we are in August debating this piece of legislation. Again, this is another example of this state government being lax in dealing with issues effectively and dealing with issues in a timely manner.
The first component of the bill deals with the allowance of properties to be confiscated with respect to an applicant's interest in the property and not specifically the entire property. As has been explained before, this comes about because of a Court of Appeal decision in Director of Public Prosecutions v. Phan Thi Le, in which case there was much argument by the wife of a convicted drug dealer with respect to her interest in a particular property. This provision will clarify that the confiscation will apply to the interests of the person concerned - namely, the defendant.
The second component deals with inserting a definition of derived property, which deals with property derived from criminal activity. What will result as a consequence of this amendment is that there will not be a requirement for a nexus between the specific action for which the person has been charged and the property they have derived as a consequence of that specific action. Any criminal activity from previous events can be linked to the seizure of this property. As explained to us through our bill briefing, this concern has been raised by both the police and the DPP (Director of Public Prosecutions).
The third component involves the applying of a test of whether a defendant has effective control of property at the time, in which case it can be confiscated even if was legally held by someone else at the time the defendant is charged or the property is restrained. This is obviously to overcome issues of whether or not a person has effective control of a property - for example, during a court case, when in effect they could argue that as they were in jail they did not have effective control.
The final major area of change involves making clear that property previously owned by the defendant but which has been transferred to someone else can only be excluded from confiscation if the property was transferred for a consideration that reflects market value. This provision obviously does not relate to a property that is purely gifted or transferred. This again was an issue that was raised in the DPP case of February 2007.
We have a number of concerns about the process and the proposed legislation. I would like to deal with two of them. Firstly, we on this side of the house have grave concerns about any legislative change with respect to retrospectivity. We always believe there is a requirement to be cautious in dealing with such issues. I would like to highlight that this legislation, if passed, will result in a direct challenge to the full bench's decision in the Phan Thi Le case. What the Attorney-General should do is publicly come out and state that this piece of legislation is as a direct result of that decision and an open challenge of that decision. It is all good and well for those opposite to sit there and cast aspersions on the federal Attorney-General when the federal Attorney-General makes comments on criminal cases, but it is now time that this Attorney-General stood up and stated publicly what this is all about. This amendment is as a direct result of the full bench's decision and he should put it as such.
The final area I would like to talk is the Charter of Human Rights and Responsibilities. This bill was much heralded by those within the Labor Party because it was about sectional interests. It appeals to those sectional interests within the Labor Party because they can then demonstrate that they are holding firm to the Labor cause. It was for no reason other than that that they trumpeted the much heralded human rights and responsibilities. The Liberal Party and The Nationals had the audacity to highlight problems with the legislation, because what the Liberal Party and The Nationals have said is that there will be occasions when the Labor Party will not be able to apply the charter of human rights. Surprise, surprise! What in fact has happened with this bill, as with other pieces of legislation, is they cannot apply the terms of this charter.
As the member for Box Hill has pointed out, and as the member for Bentleigh commented on but obviously did not understand, this piece of state legislation, which is applied to all pieces of legislation in this state, says:
A penalty must not be imposed on any person for a criminal offence that is greater than the penalty that applied to the offence when it was committed.
It does not matter what spin the member for Bentleigh or those opposite put on this. The reality is that provisions like this will mean that that provision will apply in the future to people caught by this piece of legislation. The most important thing those opposite need to sit back and recognise is that they have a piece of legislation that they have put through because of an ideological bent, but at the end of the day, if they are going to apply the provisions of their own legislation, they need to recognise that it will impact on future legislation such as this bill and other bills that will come before this house.
One only needs read the statement of compatibility that was attached to this bill.
Members opposite squirmed their way through it and tried to come up with a sensible solution, but the reality is when the statement of compatibility dealt with this clause and other clauses, government members could not answer the simple question that there is a fundamental breach of that provision. Whilst the Liberal Party will be supportive of the bill, it is incumbent upon the government to own up to the fact that this bill, like other pieces of legislation, breaches their own charter, and they need to accept that fact publicly.
Source: http://www.parliament.vic.gov.au/downloadhansard/assembly.htm
Hansard - Kelletts Road Duplication
Kelletts Road, Rowville: duplication
Mr WAKELING (Ferntree Gully) – The Rowville and Lysterfield communities can be rightly upset at the appalling manner in which the Minister for Roads and Ports has handled the current duplication of Kelletts Road in Rowville. At the intersection of Napoleon Road, the government allowed for the height of Napoleon Road to be increased by nearly 5 metres behind the houses of many Rowville and Lysterfield residents without any consultation with affected residents or the Knox council. After significant community opposition, the government was forced to back down and reduce the height of the road to 2.2 metres. Despite the release of glossy brochures and much-heralded press releases, the government has now changed the height to 2.6 metres without any discussion with or explanation to affected residents.
The handling of this project by the Brumby government has been appalling, and residents have lost complete faith in this government's ability to adequately consult with the community to ensure that the road project does not significantly impact on the ongoing amenity of Knox residents.
Source: http://www.parliament.vic.gov.au/downloadhansard/assembly.htm
Mr WAKELING (Ferntree Gully) – The Rowville and Lysterfield communities can be rightly upset at the appalling manner in which the Minister for Roads and Ports has handled the current duplication of Kelletts Road in Rowville. At the intersection of Napoleon Road, the government allowed for the height of Napoleon Road to be increased by nearly 5 metres behind the houses of many Rowville and Lysterfield residents without any consultation with affected residents or the Knox council. After significant community opposition, the government was forced to back down and reduce the height of the road to 2.2 metres. Despite the release of glossy brochures and much-heralded press releases, the government has now changed the height to 2.6 metres without any discussion with or explanation to affected residents.
The handling of this project by the Brumby government has been appalling, and residents have lost complete faith in this government's ability to adequately consult with the community to ensure that the road project does not significantly impact on the ongoing amenity of Knox residents.
Source: http://www.parliament.vic.gov.au/downloadhansard/assembly.htm
Hansard - Police: Rowville Station
Police: Rowville station
Mr WAKELING – I am also concerned about the Brumby government's lack of commitment to police resources in the Knox community. In 1999 the ALP promised the Rowville community that it would deliver a 24-hour police station if elected. Unfortunately the Rowville community was severely let down when it was only provided a 16-hour police complex. Crime does not stop at midnight, nor should our police station. At the last election the Liberal Party promised to deliver enough staff to ensure that the station is operational 24 hours per day, something which this government is not prepared to do. I and the member for Scoresby will continue to hold this government to account to ensure that the Rowville police station is adequately resourced 24 hours a day.
Source: http://www.parliament.vic.gov.au/downloadhansard/assembly.htm
Mr WAKELING – I am also concerned about the Brumby government's lack of commitment to police resources in the Knox community. In 1999 the ALP promised the Rowville community that it would deliver a 24-hour police station if elected. Unfortunately the Rowville community was severely let down when it was only provided a 16-hour police complex. Crime does not stop at midnight, nor should our police station. At the last election the Liberal Party promised to deliver enough staff to ensure that the station is operational 24 hours per day, something which this government is not prepared to do. I and the member for Scoresby will continue to hold this government to account to ensure that the Rowville police station is adequately resourced 24 hours a day.
Source: http://www.parliament.vic.gov.au/downloadhansard/assembly.htm
Hansard - Justice and Road Legislation Amendment (Law Enforcement) Bill
JUSTICE AND ROAD LEGISLATION AMENDMENT (LAW ENFORCEMENT) BILL
Second reading
Mr WAKELING (Ferntree Gully) – It gives me pleasure to rise to join the debate on the Justice and Road Legislation Amendment (Law Enforcement) Bill. As has been put by other members of the Liberal Party – and firstly by the member for Kew – the Liberal Party will certainly be supporting this piece of legislation. This is an omnibus bill which will be amending the Magistrates' Court Act 1989, the Police Regulation Act 1958, the Road Safety Act 1986 and the Sex Offenders Registration Act 2004.
As is explained in the explanatory memorandum, in short the bill amends the Magistrates' Court Act 1989 to make provision to allow certain indictable offences to be heard and determined summarily. It amends the Police Regulation Act 1958 to make provision for certain types of photographs to be released to the media and to clarify and strengthen offences relating to the release of information by police personnel. It amends the Road Safety Act 1986 to create a new offence and make provision for certain matters relating to the impoundment, mobilisation and forfeiture of motor vehicles, and it amends the Sex Offenders Registration Act 2004 to make further provision in relation to registrable offenders, the reporting obligations of registrable offenders, confidentiality of personal information, the change of name applications and other matters.
Looking at the specific provisions of the bill, as the member for Geelong has just explained with respect to police regulation, the bill will, amongst other things, amend the provisions relating to the issuing of agency photographs or mug shots. This has been brought about as a result of the 2005 matter before the Victorian Civil and Administrative Tribunal in Smith v. Victoria Police. As a consequence of that decision this legislation enables the Chief Commissioner of Police to provide upon application a copy of an agency photograph or a mug shot up to six months after a criminal has been found guilty of a particular crime.
Another aspect of the bill which is certainly of interest increases penalties for the offence of misusing the law enforcement assistance program database. There has been an assorted history associated with access to the database. One only has to look back to events prior to the 2002 state election when the files of a now member for Northern Metropolitan Region in the other place, Mr Guy, were accessed while he was a candidate for the Liberal Party. I believe the file of Ms Kay Nesbit, who was a candidate for the seat of Bass, was accessed as well. The Liberal Party took up the cudgels over that issue and took a strong position on it. This government has been dragged kicking and screaming, but it is pleasing to see that finally it has done something about this important issue. The bill will also create a new indictable offence with increased penalties for the disclosure of unauthorised information where it intentionally or recklessly endangers life, assists in the commissioning of an indictable offence and/or impedes the administration of justice.
In regard to the amendments to the Road Safety Act 1986, the bill will create a new offence relating to the driving of a motor vehicle when directed to stop by the police. I listened with interest to the contribution of the member for Benambra, who is a former member of the traffic management unit with the Victorian police force, and the interest he has in this matter particularly regarding interstate pursuits. Certainly he raises an interesting point which I believe the government will need to consider. The bill creates a new offence, and we will be supporting the government on the creation of that offence. Any death on the roads is one too many, and the examples that were provided by the member for Lara certainly indicate that if there is anything that we as legislators can do on this important issue it is incumbent on us to take that action. We certainly supported the provisions of the anti-hoon legislation because we believed it is responsible legislation which we as a party have supported for a long time. We are keen to support any provisions that improve road safety.
The Sex Offenders Registration Act will also be amended. The bill gives the Chief Commissioner of Police the ability to block a registered sex offender from changing his or her name. All registered sex offenders will have to apply to the chief commissioner in writing to seek approval to change their name.
On the surface one would be supportive of this provision, but we believe more can be done on this piece of legislation. We believe it is incumbent on the Chief Commissioner of Police to have access to various changes to someone's records involving things like births, deaths and marriages, but it important that every available effort is made to restrict the operation of notorious sex offenders.
I believe it is incumbent on us as legislators to ensure we exhaust every possible means that we have at our disposal to ensure that we do what is best in the interests of the Victorian community to try to prevent sex offenders from having an abhorrent nature and continuing their abhorrent behaviour. Whilst we are supportive of the provisions which change the Sex Offenders Registration Act, we certainly believe more could have been done to give the chief commissioner the greatest powers. I would hate to think that something could occur in the future and we were left thinking that if only we had tightened the legislation now we may have potentially prevented an individual, particularly a vulnerable child, from becoming a victim of one of these creatures.
Together with all other members of this house, I am pleased to support the legislation. I believe it is important that we tighten police regulations, the Road Safety Act and the Sex Offenders Registration Act, but some of these provisions could have been introduced earlier.
Unfortunately like a lot of legislation that comes to this house – and we in opposition quite repetitiously highlight the fact that this government has been lax in its legislative regime – –
Ms Marshall – No!
Mr WAKELING – I am pleased that the member for Forest Hill agrees with me regarding that proposition! We will continue to hold this government to account; and we will continue to ensure that this government makes necessary legislative changes to ensure that the Victorian community moves forward. I commend the bill to the house and I wish it a speedy passage.
Source: http://www.parliament.vic.gov.au/downloadhansard/assembly.htm
Second reading
Mr WAKELING (Ferntree Gully) – It gives me pleasure to rise to join the debate on the Justice and Road Legislation Amendment (Law Enforcement) Bill. As has been put by other members of the Liberal Party – and firstly by the member for Kew – the Liberal Party will certainly be supporting this piece of legislation. This is an omnibus bill which will be amending the Magistrates' Court Act 1989, the Police Regulation Act 1958, the Road Safety Act 1986 and the Sex Offenders Registration Act 2004.
As is explained in the explanatory memorandum, in short the bill amends the Magistrates' Court Act 1989 to make provision to allow certain indictable offences to be heard and determined summarily. It amends the Police Regulation Act 1958 to make provision for certain types of photographs to be released to the media and to clarify and strengthen offences relating to the release of information by police personnel. It amends the Road Safety Act 1986 to create a new offence and make provision for certain matters relating to the impoundment, mobilisation and forfeiture of motor vehicles, and it amends the Sex Offenders Registration Act 2004 to make further provision in relation to registrable offenders, the reporting obligations of registrable offenders, confidentiality of personal information, the change of name applications and other matters.
Looking at the specific provisions of the bill, as the member for Geelong has just explained with respect to police regulation, the bill will, amongst other things, amend the provisions relating to the issuing of agency photographs or mug shots. This has been brought about as a result of the 2005 matter before the Victorian Civil and Administrative Tribunal in Smith v. Victoria Police. As a consequence of that decision this legislation enables the Chief Commissioner of Police to provide upon application a copy of an agency photograph or a mug shot up to six months after a criminal has been found guilty of a particular crime.
Another aspect of the bill which is certainly of interest increases penalties for the offence of misusing the law enforcement assistance program database. There has been an assorted history associated with access to the database. One only has to look back to events prior to the 2002 state election when the files of a now member for Northern Metropolitan Region in the other place, Mr Guy, were accessed while he was a candidate for the Liberal Party. I believe the file of Ms Kay Nesbit, who was a candidate for the seat of Bass, was accessed as well. The Liberal Party took up the cudgels over that issue and took a strong position on it. This government has been dragged kicking and screaming, but it is pleasing to see that finally it has done something about this important issue. The bill will also create a new indictable offence with increased penalties for the disclosure of unauthorised information where it intentionally or recklessly endangers life, assists in the commissioning of an indictable offence and/or impedes the administration of justice.
In regard to the amendments to the Road Safety Act 1986, the bill will create a new offence relating to the driving of a motor vehicle when directed to stop by the police. I listened with interest to the contribution of the member for Benambra, who is a former member of the traffic management unit with the Victorian police force, and the interest he has in this matter particularly regarding interstate pursuits. Certainly he raises an interesting point which I believe the government will need to consider. The bill creates a new offence, and we will be supporting the government on the creation of that offence. Any death on the roads is one too many, and the examples that were provided by the member for Lara certainly indicate that if there is anything that we as legislators can do on this important issue it is incumbent on us to take that action. We certainly supported the provisions of the anti-hoon legislation because we believed it is responsible legislation which we as a party have supported for a long time. We are keen to support any provisions that improve road safety.
The Sex Offenders Registration Act will also be amended. The bill gives the Chief Commissioner of Police the ability to block a registered sex offender from changing his or her name. All registered sex offenders will have to apply to the chief commissioner in writing to seek approval to change their name.
On the surface one would be supportive of this provision, but we believe more can be done on this piece of legislation. We believe it is incumbent on the Chief Commissioner of Police to have access to various changes to someone's records involving things like births, deaths and marriages, but it important that every available effort is made to restrict the operation of notorious sex offenders.
I believe it is incumbent on us as legislators to ensure we exhaust every possible means that we have at our disposal to ensure that we do what is best in the interests of the Victorian community to try to prevent sex offenders from having an abhorrent nature and continuing their abhorrent behaviour. Whilst we are supportive of the provisions which change the Sex Offenders Registration Act, we certainly believe more could have been done to give the chief commissioner the greatest powers. I would hate to think that something could occur in the future and we were left thinking that if only we had tightened the legislation now we may have potentially prevented an individual, particularly a vulnerable child, from becoming a victim of one of these creatures.
Together with all other members of this house, I am pleased to support the legislation. I believe it is important that we tighten police regulations, the Road Safety Act and the Sex Offenders Registration Act, but some of these provisions could have been introduced earlier.
Unfortunately like a lot of legislation that comes to this house – and we in opposition quite repetitiously highlight the fact that this government has been lax in its legislative regime – –
Ms Marshall – No!
Mr WAKELING – I am pleased that the member for Forest Hill agrees with me regarding that proposition! We will continue to hold this government to account; and we will continue to ensure that this government makes necessary legislative changes to ensure that the Victorian community moves forward. I commend the bill to the house and I wish it a speedy passage.
Source: http://www.parliament.vic.gov.au/downloadhansard/assembly.htm
Hansard - Planning and Environment Amendment Bill
PLANNING AND ENVIRONMENT AMENDMENT BILL
Second reading
Mr WAKELING (Ferntree Gully) – It gives me pleasure to rise to speak on the Planning and Environment Amendment Bill 2007. One just has to listen to the contribution from the member for Ballarat East to see how those opposite are simply apologists for the failed planning system this government has been responsible for. It has failed this community. This system has been in place for eight years and nobody in Melbourne supports it. To have the member for Ballarat East stand up in this chamber and say that councillors have the audacity to knock back planning applications – –
Second reading
Mr WAKELING (Ferntree Gully) – It gives me pleasure to rise to speak on the Planning and Environment Amendment Bill 2007. One just has to listen to the contribution from the member for Ballarat East to see how those opposite are simply apologists for the failed planning system this government has been responsible for. It has failed this community. This system has been in place for eight years and nobody in Melbourne supports it. To have the member for Ballarat East stand up in this chamber and say that councillors have the audacity to knock back planning applications – –
Mr Howard interjected.
Mr WAKELING – As a former councillor, I know that councils will often knock back planning applications because councillors represent their local communities. Unlike the member for Ballarat East, I was proud to represent my community.
The Planning and Environment Bill is just another attempt by this government to try to fix the failed planning system which was put in place under the Melbourne 2030 plan. The Planning and Environment Act is to be amended to extend the powers of the much-loved VCAT (Victorian Civil and Administrative Tribunal) system. It will be able to cancel or amend planning permits issued at its direction. It will streamline the planning system operations through enacting further recommendations contained in the Carbines review which are aimed at removing red tape and doing away with planning delays. It will also clarify the general responsibility of a municipal council as a planning authority for any planning scheme in force in its area and will also alter the time frame when councils review their planning schemes, from three to four years.
I listened to the member for Yuroke's contribution to the debate. Whilst from time to time she makes a good contribution to debates in the house, I listened to her trying to explain the benefits of Melbourne 2030 in her own electorate.
I can tell you, Acting Speaker, that as someone who has the urban growth boundary running through the middle of my electorate, Melbourne 2030 is loathed by the people in Melbourne's east.
This bill is about spin; it is not about substance. This has more to do with fixing the mess in which this government has put Victoria's planning system. This government is clearly out of touch with community expectations with respect to planning. By any measure, Melbourne 2030 is an abject failure. This government will thrust upon the Victorian community and the Melbourne community an additional 1 million people. In the city of Knox there is an expectation that by the year 2030 my community will have to put up with an additional 15 000 houses.
I should explain to the house that in the city of Knox there is not a lot of land left on which you could put 15 000 houses, so what is going happen?
They are going to subdivide every second house lot in my municipality and implement what they colloquially call 'infill development' but which the local community knows as housing units. My community is going to be forced to accept units at the behest of this government.
If members think that is not bad enough, recently the planning minister would not rule out categorically the idea that they were going to be toying with removing planning powers from local government. They were potentially going to hand it over to some new body. This clearly demonstrates that this government is all about centralising planning powers.
The bill will strengthen VCAT’s role, from it having an adjudicative role to more of an interpretative role.
It is all about strengthening the role of VCAT. I, as a former councillor, know only too well how VCAT is acting as the Labor government's muscle to force the failed Melbourne 2030 policy onto the Victorian community. One only needs look at the numerous applications for planning developments which were rejected unanimously by councillors of all political ilk in Knox City Council, only to see those decisions overturned by VCAT.
Why were they overturned? Because the applications fell within the domain of Melbourne 2030 in meeting its planning controls and the requirements of the government's policy. But one thing it did not take into consideration, which is a group I am sure the member for Ballarat East is not concerned about, is the local community.
The local community did not want the housing; Knox City Council did not want the housing.
There was only one group that did – that is, some person sitting in Melbourne – not out in the city of Knox – adjudicating in a VCAT hearing, who has never been to Knox, never been to the street, did not care about the impact on the local community, was not concerned about the people in Knox, but more importantly was not even concerned about the people in Ballarat East. It is more about imposing unwanted housing on a community that does not want this to occur. This is all about ensuring that VCAT acts as the political muscle for the Labor government with respect to its failed Melbourne 2030 policy.
Of all the applications that have gone through Knox, one stands out in my mind, and that involves the land that was once owned by Sir George Knox, who served as a member and as Speaker of this house for 33 years. His property was sold to a developer who told the community he would build 88 two-storey units there. He did not care where they went, on the north of the property or on the south of the property, but he said he would build 88 two-storey units. The council did not want this development, the community did not want it and abutting residents did not want it. The only ones who wanted it were the developer and VCAT (Victorian Civil and Administrative Tribunal). It was opposed by every member of the council, and it was opposed by the community at public meetings. It went to VCAT, and what did VCAT do? It ticked it off, for one important reason – because it met the needs of Melbourne 2030. It did not meet the needs of the local community, it did not meet the needs of abutting residents and it did not meet the needs of the concerned councillors, but it met the needs of this government's policy.
It can be seen that this government is about imposing planning policies which are unwanted and which have failed. What the minister should be doing is recognising that 2030 has failed. What the minister should now do is walk away with his tail between his legs, acknowledge that he has messed up and acknowledge that this is a failure, and come up with new planning controls, because the people in my community and the people of Melbourne will not put up with 2030. Let us just remember that Melbourne 2030 is predicated on this government's providing housing around activity centres.
A central plank of the activity centres is that public transport will be provided. One only needs to go out to my community to see the lack of infrastructure for public transport. This is a government that promised in 1999 that we would get a tramline to Knox and that we would have a Rowville feasibility study. Eight years later nothing has been done.
This government is putting housing around those activity centres but failing, despite its own policy document, to provide the necessary infrastructure for public transport.
Honourable members interjecting.
Mr WAKELING – Those opposite can carp and whine as much as they like, but the reality is that the government's own policy has failed to provide the necessary infrastructure around its activity centres. The community does not want this policy, the people in my municipality do not want it and the residents of Ferntree Gully do not want it. It is about time the government started listening to the concerns of the Victorian community, recognised that this policy is a failure and put in place the necessary legislative changes to ensure that we have a planning system that will take us forward and not backwards.
Source: http://www.parliament.vic.gov.au/downloadhansard/assembly.htm
Monday, August 13, 2007
Hansard - Legal Profession (Education) Bill
PARLIAMENT OF VICTORIA – LEGISLATIVE ASSEMBLY
9 August 2007
pages 17 to 19
LEGAL PROFESSION AMENDMENT (EDUCATION) BILL
Mr WAKELING (Ferntree Gully) – It gives me pleasure to rise to speak on the Legal Profession Amendment (Education) Bill. The purpose of this bill is to amend the Legal Profession Act 2004 regarding the assessment of applications for admission to practise as lawyers, the composition of the Council of Legal Education and the Board of Examiners and the requirements for statements of legal costs and the recovery of unpaid costs.
This bill seeks to make a number of amendments to the Act.
These include the requirement of applicants who apply for admission based on overseas qualifications to pay the reasonable cost of investigating the claimed qualifications, and I would like to deal with that a little bit later.
The bill also contains amendments that allow the board to consider any disciplinary action taken against persons whilst they were students in deciding whether they are fit for admission; require universities and other educational bodies to provide the board with documents relating to any disciplinary proceedings and require applicants to pay the cost of providing those documents; allow the council to make procedural rules regarding admission to practice and requiring applicants to undergo police checks; allow the board to require mental impairment assessments, including assessments relating to alcoholism or drug dependency of applicants for admission, if the board believes on reasonable grounds that they may have a mental impairment affecting fitness to practice. Other amendments include altering the composition of the Council of Legal Education and the Board of Examiners from 1 July 2008. The council will also consist of judges and legal education representatives, and the board will consist of legal practitioners under the chairmanship of a former judge.
The amended bill will also provide for administrative support for the council by the staff of the board, instead of an honorary secretary, which is the current situation. It will provide for the removal from the roll of a practitioner whose interstate practising certificate is cancelled. It will also allow statements about legal costs provided by law firms to clients to be based on standard forms prescribed in the regulations and make clear that the existing $750 threshold for requirements for statements about legal costs is based on fees excluding GST, which is currently an issue. It also allows for legal fees held by the legal services commissioner to be released if a complainant fails to attend mediation, and it allows settlement agreements about legal fees to be enforced through the Magistrates Court.
As stated by the member for Box Hill, the Liberal Party will not be opposing this legislation.
It deals with the implementation of a range of changes which have been brought about by the report which the member for Prahran alluded to earlier. As the member for Box Hill and the Leader of The Nationals indicated, we have some concerns about the draft legislation, and I refer to those points now.
The first is in regard to the proposed insertion of new subsection (1A) following section 2.3.2(1), which deals with the payment of reasonable costs incurred by the council in assessing overseas persons seeking admission to practice as a lawyer. We were advised by departmental staff who assisted us at the briefing that at present the qualifications of those persons are assessed on an honorary basis. Whilst it is not unreasonable to expect that a charge be levied for that service, we have some concern about the definition of ‘reasonable cost’. Like most things, it is open to legal challenge, but we believe the proposed legislation does not provide a clear definition as to what a reasonable cost would be.
There was some advice that a fee of, potentially, $250, may apply, but as members could appreciate, given that the legislation does not seek to provide any clarity as to what that fee will be, it is incumbent upon this government to provide that clarity, particularly so that people who are seeking admission as legal practitioners can be well aware of what the fee will be. I hope the minister, in his summing up on the bill, will provide some greater clarity on that point.
The other point I would like to discuss relates to disciplinary proceedings, which the member for Box Hill also alluded to. After section 2.3.3(1)(a) of the principal act a new provision, paragraph (ab) will be inserted. It says:
(ab) whether the person is or has been the subject of disciplinary action, however described, arising out of the person’s conduct in –
(i) attaining approved academic qualifications or corresponding academic qualifications; or
(ii) completing approved practical legal training requirements or corresponding practical legal training requirements ...
At the bill briefing it was put to us that this new provision would relate specifically to the area of plagiarism. On the face of it that is a position that we would not necessarily oppose, but given that the way it is provided for in the legislation is quite broad, because it relates solely to disciplinary action, one can only assume that this provision could be used to deal with a whole range of issues. These could include involvement in political activities at university – like many members in this place, I was engaged in political activities. It could cover various bodies, particularly student representative councils.
That would be relevant if the body were not of the same political ilk and if it were the same as the one I was involved in. I am sure it is no surprise that the Students Representative Council of La Trobe University was not dominated by the Liberal Party. Actions that could be brought before that body could well fall under those to be dealt with under the category of disciplinary action.
Whilst I understand and appreciate the need for this provision in the bill, as explained at the briefing, I believe there is a requirement for the minister to provide greater clarity. As the member for Box Hill said, in his second-reading speech on this bill the minister said that this provision includes extending the range of issues the Board of Examiners may be informed about to include conduct while in tertiary education. Obviously that is a very broad definition, and whilst the legislation is a bit more specific we believe it is incumbent upon the minister to provide greater clarification on this issue so that that matter can be resolved. If that could happen at the earliest opportunity, it would reduce the need for this legislation to come back before the house to provide greater clarity and resolve both those issues.
As I have indicated, we will not be opposing the bill. We will be supporting the general thrust of the bill, but there are certainly areas of it which we have concerns about. It is incumbent upon the minister to provide clarity on these concerns.
Source: http://www.parliament.vic.gov.au/downloadhansard/assembly.htm
9 August 2007
pages 17 to 19
LEGAL PROFESSION AMENDMENT (EDUCATION) BILL
Mr WAKELING (Ferntree Gully) – It gives me pleasure to rise to speak on the Legal Profession Amendment (Education) Bill. The purpose of this bill is to amend the Legal Profession Act 2004 regarding the assessment of applications for admission to practise as lawyers, the composition of the Council of Legal Education and the Board of Examiners and the requirements for statements of legal costs and the recovery of unpaid costs.
This bill seeks to make a number of amendments to the Act.
These include the requirement of applicants who apply for admission based on overseas qualifications to pay the reasonable cost of investigating the claimed qualifications, and I would like to deal with that a little bit later.
The bill also contains amendments that allow the board to consider any disciplinary action taken against persons whilst they were students in deciding whether they are fit for admission; require universities and other educational bodies to provide the board with documents relating to any disciplinary proceedings and require applicants to pay the cost of providing those documents; allow the council to make procedural rules regarding admission to practice and requiring applicants to undergo police checks; allow the board to require mental impairment assessments, including assessments relating to alcoholism or drug dependency of applicants for admission, if the board believes on reasonable grounds that they may have a mental impairment affecting fitness to practice. Other amendments include altering the composition of the Council of Legal Education and the Board of Examiners from 1 July 2008. The council will also consist of judges and legal education representatives, and the board will consist of legal practitioners under the chairmanship of a former judge.
The amended bill will also provide for administrative support for the council by the staff of the board, instead of an honorary secretary, which is the current situation. It will provide for the removal from the roll of a practitioner whose interstate practising certificate is cancelled. It will also allow statements about legal costs provided by law firms to clients to be based on standard forms prescribed in the regulations and make clear that the existing $750 threshold for requirements for statements about legal costs is based on fees excluding GST, which is currently an issue. It also allows for legal fees held by the legal services commissioner to be released if a complainant fails to attend mediation, and it allows settlement agreements about legal fees to be enforced through the Magistrates Court.
As stated by the member for Box Hill, the Liberal Party will not be opposing this legislation.
It deals with the implementation of a range of changes which have been brought about by the report which the member for Prahran alluded to earlier. As the member for Box Hill and the Leader of The Nationals indicated, we have some concerns about the draft legislation, and I refer to those points now.
The first is in regard to the proposed insertion of new subsection (1A) following section 2.3.2(1), which deals with the payment of reasonable costs incurred by the council in assessing overseas persons seeking admission to practice as a lawyer. We were advised by departmental staff who assisted us at the briefing that at present the qualifications of those persons are assessed on an honorary basis. Whilst it is not unreasonable to expect that a charge be levied for that service, we have some concern about the definition of ‘reasonable cost’. Like most things, it is open to legal challenge, but we believe the proposed legislation does not provide a clear definition as to what a reasonable cost would be.
There was some advice that a fee of, potentially, $250, may apply, but as members could appreciate, given that the legislation does not seek to provide any clarity as to what that fee will be, it is incumbent upon this government to provide that clarity, particularly so that people who are seeking admission as legal practitioners can be well aware of what the fee will be. I hope the minister, in his summing up on the bill, will provide some greater clarity on that point.
The other point I would like to discuss relates to disciplinary proceedings, which the member for Box Hill also alluded to. After section 2.3.3(1)(a) of the principal act a new provision, paragraph (ab) will be inserted. It says:
(ab) whether the person is or has been the subject of disciplinary action, however described, arising out of the person’s conduct in –
(i) attaining approved academic qualifications or corresponding academic qualifications; or
(ii) completing approved practical legal training requirements or corresponding practical legal training requirements ...
At the bill briefing it was put to us that this new provision would relate specifically to the area of plagiarism. On the face of it that is a position that we would not necessarily oppose, but given that the way it is provided for in the legislation is quite broad, because it relates solely to disciplinary action, one can only assume that this provision could be used to deal with a whole range of issues. These could include involvement in political activities at university – like many members in this place, I was engaged in political activities. It could cover various bodies, particularly student representative councils.
That would be relevant if the body were not of the same political ilk and if it were the same as the one I was involved in. I am sure it is no surprise that the Students Representative Council of La Trobe University was not dominated by the Liberal Party. Actions that could be brought before that body could well fall under those to be dealt with under the category of disciplinary action.
Whilst I understand and appreciate the need for this provision in the bill, as explained at the briefing, I believe there is a requirement for the minister to provide greater clarity. As the member for Box Hill said, in his second-reading speech on this bill the minister said that this provision includes extending the range of issues the Board of Examiners may be informed about to include conduct while in tertiary education. Obviously that is a very broad definition, and whilst the legislation is a bit more specific we believe it is incumbent upon the minister to provide greater clarification on this issue so that that matter can be resolved. If that could happen at the earliest opportunity, it would reduce the need for this legislation to come back before the house to provide greater clarity and resolve both those issues.
As I have indicated, we will not be opposing the bill. We will be supporting the general thrust of the bill, but there are certainly areas of it which we have concerns about. It is incumbent upon the minister to provide clarity on these concerns.
Source: http://www.parliament.vic.gov.au/downloadhansard/assembly.htm
Hansard - Special Schools
PARLIAMENT OF VICTORIA – LEGISLATIVE ASSEMBLY
9 August 2007
pages 57 & 58
Special schools: eastern suburbs
Mr WAKELING – I wish to raise a matter of grave concern with the Minister for Education, and the action I seek is for the Brumby government to provide appropriate educational facilities for children with additional needs in Melbourne's eastern suburbs. Currently, the Heatherwood School, which is located in Donvale, serves as the only major educational facility for children with additional needs who reside in the eastern suburbs of Melbourne. The current school facility has been in operation for many years. I am advised that this facility is at capacity, given that no further space exists for an extension to be constructed on the site. Furthermore, children from the Knox community who attend this school are currently travelling to Heatherwood by school bus. Many parents have raised concerns with me that their children are forced to travel in excess of 11/2 hours on this bus just to get to school.
Against this backdrop, parents have called for an examination of the need to construct a similar facility in closer proximity to the Knox community. Earlier this year there was much debate throughout the Heatherwood School community regarding a proposed relocation of the facility to the former Ferntree Gully Secondary College site located on Dorset Road in Ferntree Gully. Whilst the school community did not endorse the relocation of the Heatherwood facility, this debate has highlighted the need for new facilities for children with additional needs to be more appropriately located closer to the Knox community. This Labor government pats itself on the back for its supposed commitment to the education of our children, yet it has done little to address this important issue.
On behalf of concerned parents, I raised this issue with the former Minister for Education, who provided the residents in my electorate no comfort, as he would not confirm the construction of a new facility.
The Ferntree Gully community has seen the closing of both the Ferntree Gully primary and secondary schools under the watch of this state Labor government. The primary school site closed at the end of the 2005 school year, whilst the secondary school site closed at the end of the 2006 school year. It is several months later, and no public decision has been made regarding the future of both of these former school sites. Understandably, Knox-based parents at Heatherwood have rightly asked why the former secondary school site has not been identified as a future site for a facility to cater for children with additional needs.
It is clear that residents in the Knox community expect the government to act on this important issue. I seek the Minister for Education to take action and establish appropriate educational facilities to meet the requirements of children with additional needs who reside in Melbourne's eastern suburbs, and more specifically, in the Knox area.
Source: http://www.parliament.vic.gov.au/downloadhansard/assembly.htm
9 August 2007
pages 57 & 58
Special schools: eastern suburbs
Mr WAKELING – I wish to raise a matter of grave concern with the Minister for Education, and the action I seek is for the Brumby government to provide appropriate educational facilities for children with additional needs in Melbourne's eastern suburbs. Currently, the Heatherwood School, which is located in Donvale, serves as the only major educational facility for children with additional needs who reside in the eastern suburbs of Melbourne. The current school facility has been in operation for many years. I am advised that this facility is at capacity, given that no further space exists for an extension to be constructed on the site. Furthermore, children from the Knox community who attend this school are currently travelling to Heatherwood by school bus. Many parents have raised concerns with me that their children are forced to travel in excess of 11/2 hours on this bus just to get to school.
Against this backdrop, parents have called for an examination of the need to construct a similar facility in closer proximity to the Knox community. Earlier this year there was much debate throughout the Heatherwood School community regarding a proposed relocation of the facility to the former Ferntree Gully Secondary College site located on Dorset Road in Ferntree Gully. Whilst the school community did not endorse the relocation of the Heatherwood facility, this debate has highlighted the need for new facilities for children with additional needs to be more appropriately located closer to the Knox community. This Labor government pats itself on the back for its supposed commitment to the education of our children, yet it has done little to address this important issue.
On behalf of concerned parents, I raised this issue with the former Minister for Education, who provided the residents in my electorate no comfort, as he would not confirm the construction of a new facility.
The Ferntree Gully community has seen the closing of both the Ferntree Gully primary and secondary schools under the watch of this state Labor government. The primary school site closed at the end of the 2005 school year, whilst the secondary school site closed at the end of the 2006 school year. It is several months later, and no public decision has been made regarding the future of both of these former school sites. Understandably, Knox-based parents at Heatherwood have rightly asked why the former secondary school site has not been identified as a future site for a facility to cater for children with additional needs.
It is clear that residents in the Knox community expect the government to act on this important issue. I seek the Minister for Education to take action and establish appropriate educational facilities to meet the requirements of children with additional needs who reside in Melbourne's eastern suburbs, and more specifically, in the Knox area.
Source: http://www.parliament.vic.gov.au/downloadhansard/assembly.htm
Hansard - Upskirting Bill
PARLIAMENT OF VICTORIA – LEGISLATIVE ASSEMBLY
8 August 2007
pages 73 – 75
SUMMARY OFFENCES AMENDMENT (UPSKIRTING) BILL
Mr WAKELING (Ferntree Gully) – It gives me pleasure to rise to contribute to the debate on the Summary Offences Amendment (Upskirting) Bill 2007. As has been mentioned by members before me, the main purpose of this bill is to make it an offence in specified circumstances to observe, capture or distribute visual images of the genital or anal region of a person's body.
The bill aims to do a number of things, which include prohibiting the use of a device to observe another person's genital or anal region in circumstances where it is reasonable for them to expect that such a region could not be observed. It prohibits the visual capture of such a region in circumstances where it is reasonable for a person to expect that his or her region could not be visually usually captured. It prohibits a person who has visually captured an image of such a region to distribute that image.
It provides exceptions with regard to the use of the device in capturing an image where there is express or implied consent; where it is done via accessing the internet or a broadcasting or datacasting service; or where it is by a law enforcement officer acting reasonably in the course of their duty. The bill also provides exceptions in regard to the distribution of images where express or implied consent to the purpose of distribution or a similar purpose is subject to a person being incapable of giving consent and a reasonable person would regard the distribution as acceptable.
As has been mentioned by a number of speakers, this piece of legislation has been brought about by recent activities of a number of individuals throughout Victoria who have engaged in antisocial behaviour which has involved the capturing of visual images of individuals, particularly women, without their consent.
I would firstly like to go on the record to congratulate Wendy Lovell, a member for the Northern Victoria Region in the other place, on her efforts in raising this issue and making sure that it was put on the political agenda. It is pleasing to see that the government has picked up on her demands and her calls and has enacted legislation.
As has been mentioned, we will be supporting the legislation. There are, however, deficiencies within the legislation that I think are important to put on the record to identify how the government could have gone about this in a much better way. The first thing, which has been mentioned by the member for Brighton, is that the Attorney-General – the new, happy Attorney-General as opposed to the Attorney-General that we had last week – issued a press release dated 27 July 2006, which is over 12 months ago, in which he was calling for a push for national laws on upskirting and downblousing.
If this issue was such an important matter, if the government had been on the ball and actually ensuring that legislation came before the house in a timely manner, we would not be dealing with this bill 12 months down the track.
The other important point in regard to this press release is that the minister made a point of explaining that through his efforts he would be ensuring that legislation would be enacted to deal with not only the issue of upskirting but, as has been mentioned by others, downblousing, which is the taking of a photo down a woman’s blouse without her knowledge or consent. As we know, that provision is not in the legislation. At the legislative briefing I attended I asked the question of the staff. To their credit, they provided explanations as to the difficulties associated with legislating on that issue, but one can only question why the minister would actually go on the record and publicly state that he was going to push for such a provision if his own department believed that it was not possible.
Another issue that needs to be brought to the house's attention, as was mentioned by the member for Box Hill, is the minister’s own second-reading speech, in which he said:
The bill creates specific and unique offences that ban upskirting and related behaviour. Although this behaviour may already be prohibited by existing offences, such as indecent behaviour and stalking, this bill creates offences directly targeting such behaviour.
One has to ask whether this legislation is necessary. The Liberal Party, and I as the member for Ferntree Gully, will be supporting the bill, but the question obviously has to be asked whether this offence is already covered by existing legislation.
The minister has already alluded to that in his second-reading speech.
I understand the Law Institute of Victoria has also raised concerns about that provision. Another important issue that needs to be dealt with concerns the on-forwarding of illegal material.
Proposed section 41C of the Summary Offences Act says:
A person who visually captures or has visually captured an image of another person's genital or anal region ... must not intentionally distribute that image.
Therefore a person who visually captures an image and then on-forwards it can potentially face two years imprisonment. However, not covered by this legislation is the circumstance when an image is forwarded to a separate individual who is not party to the illegal action and that individual on-forwards the image; that person is not affected in any way by the provisions of this bill. We certainly raised this issue at the bill briefing, and it was clear that the government had no intention of seeking to cover such circumstances through this bill. Obviously women would be greatly concerned if they knew that if the secondary person who received their image from the perpetrator on-forwarded that material and were not captured by the provisions of this legislation.
There is also concern about proposed section 41B of the Summary Offences Act. It reads:
A person must not intentionally visually capture another person's genital or anal region in circumstances in which it would be reasonable for that other person to expect that his or her genital or anal region could not be visually captured.
This proposed section obviously deals with taking images of children.
Whilst we understand the provision on which the minister has couched this legislation, it is unclear and therefore will be open to much scrutiny in the court system and will be a minefield for the legal fraternity. We think it would have been much better for the government to have properly worded this provision to clarify and overcome these issues, because what is reasonable for one person may be deemed unreasonable for another. Whilst it may be deemed reasonable for one person to take a photograph of their child, others may believe that may be inappropriate because of the age of a particular child. These issues need to be clarified. We believe the government has dropped the ball on this issue. The government could have dealt with this issue better considering the fact that the minister raised it 12 months ago; he has had 12 months to deal with this aspect of the legislation.
Proposed section 40 of the Summary Offences Act says in part:
device means device of any kind capable of being used to observe a person’s genital or anal region including –
(a) a mirror; and
(b) a tool when used to make an aperture; and
(c) a ladder ...
As the member for Box Hill has indicated, individuals may well view someone through a peephole, for example, but that situation, to our understanding, will not be covered by the provisions of this legislation.
Whilst we understand and support the tenet of the bill, we believe there are still areas of deficiency.
We hoped the government could have fixed those problems. Nevertheless we will be supporting this legislation; I am happy to support the bill because it is legislation that this community has called for and it is legislation that the Liberal Party has called for. However, there are still areas of concern where this legislation may need to come back to this house for future improvement.
Source: http://www.parliament.vic.gov.au/downloadhansard/assembly.htm
8 August 2007
pages 73 – 75
SUMMARY OFFENCES AMENDMENT (UPSKIRTING) BILL
Mr WAKELING (Ferntree Gully) – It gives me pleasure to rise to contribute to the debate on the Summary Offences Amendment (Upskirting) Bill 2007. As has been mentioned by members before me, the main purpose of this bill is to make it an offence in specified circumstances to observe, capture or distribute visual images of the genital or anal region of a person's body.
The bill aims to do a number of things, which include prohibiting the use of a device to observe another person's genital or anal region in circumstances where it is reasonable for them to expect that such a region could not be observed. It prohibits the visual capture of such a region in circumstances where it is reasonable for a person to expect that his or her region could not be visually usually captured. It prohibits a person who has visually captured an image of such a region to distribute that image.
It provides exceptions with regard to the use of the device in capturing an image where there is express or implied consent; where it is done via accessing the internet or a broadcasting or datacasting service; or where it is by a law enforcement officer acting reasonably in the course of their duty. The bill also provides exceptions in regard to the distribution of images where express or implied consent to the purpose of distribution or a similar purpose is subject to a person being incapable of giving consent and a reasonable person would regard the distribution as acceptable.
As has been mentioned by a number of speakers, this piece of legislation has been brought about by recent activities of a number of individuals throughout Victoria who have engaged in antisocial behaviour which has involved the capturing of visual images of individuals, particularly women, without their consent.
I would firstly like to go on the record to congratulate Wendy Lovell, a member for the Northern Victoria Region in the other place, on her efforts in raising this issue and making sure that it was put on the political agenda. It is pleasing to see that the government has picked up on her demands and her calls and has enacted legislation.
As has been mentioned, we will be supporting the legislation. There are, however, deficiencies within the legislation that I think are important to put on the record to identify how the government could have gone about this in a much better way. The first thing, which has been mentioned by the member for Brighton, is that the Attorney-General – the new, happy Attorney-General as opposed to the Attorney-General that we had last week – issued a press release dated 27 July 2006, which is over 12 months ago, in which he was calling for a push for national laws on upskirting and downblousing.
If this issue was such an important matter, if the government had been on the ball and actually ensuring that legislation came before the house in a timely manner, we would not be dealing with this bill 12 months down the track.
The other important point in regard to this press release is that the minister made a point of explaining that through his efforts he would be ensuring that legislation would be enacted to deal with not only the issue of upskirting but, as has been mentioned by others, downblousing, which is the taking of a photo down a woman’s blouse without her knowledge or consent. As we know, that provision is not in the legislation. At the legislative briefing I attended I asked the question of the staff. To their credit, they provided explanations as to the difficulties associated with legislating on that issue, but one can only question why the minister would actually go on the record and publicly state that he was going to push for such a provision if his own department believed that it was not possible.
Another issue that needs to be brought to the house's attention, as was mentioned by the member for Box Hill, is the minister’s own second-reading speech, in which he said:
The bill creates specific and unique offences that ban upskirting and related behaviour. Although this behaviour may already be prohibited by existing offences, such as indecent behaviour and stalking, this bill creates offences directly targeting such behaviour.
One has to ask whether this legislation is necessary. The Liberal Party, and I as the member for Ferntree Gully, will be supporting the bill, but the question obviously has to be asked whether this offence is already covered by existing legislation.
The minister has already alluded to that in his second-reading speech.
I understand the Law Institute of Victoria has also raised concerns about that provision. Another important issue that needs to be dealt with concerns the on-forwarding of illegal material.
Proposed section 41C of the Summary Offences Act says:
A person who visually captures or has visually captured an image of another person's genital or anal region ... must not intentionally distribute that image.
Therefore a person who visually captures an image and then on-forwards it can potentially face two years imprisonment. However, not covered by this legislation is the circumstance when an image is forwarded to a separate individual who is not party to the illegal action and that individual on-forwards the image; that person is not affected in any way by the provisions of this bill. We certainly raised this issue at the bill briefing, and it was clear that the government had no intention of seeking to cover such circumstances through this bill. Obviously women would be greatly concerned if they knew that if the secondary person who received their image from the perpetrator on-forwarded that material and were not captured by the provisions of this legislation.
There is also concern about proposed section 41B of the Summary Offences Act. It reads:
A person must not intentionally visually capture another person's genital or anal region in circumstances in which it would be reasonable for that other person to expect that his or her genital or anal region could not be visually captured.
This proposed section obviously deals with taking images of children.
Whilst we understand the provision on which the minister has couched this legislation, it is unclear and therefore will be open to much scrutiny in the court system and will be a minefield for the legal fraternity. We think it would have been much better for the government to have properly worded this provision to clarify and overcome these issues, because what is reasonable for one person may be deemed unreasonable for another. Whilst it may be deemed reasonable for one person to take a photograph of their child, others may believe that may be inappropriate because of the age of a particular child. These issues need to be clarified. We believe the government has dropped the ball on this issue. The government could have dealt with this issue better considering the fact that the minister raised it 12 months ago; he has had 12 months to deal with this aspect of the legislation.
Proposed section 40 of the Summary Offences Act says in part:
device means device of any kind capable of being used to observe a person’s genital or anal region including –
(a) a mirror; and
(b) a tool when used to make an aperture; and
(c) a ladder ...
As the member for Box Hill has indicated, individuals may well view someone through a peephole, for example, but that situation, to our understanding, will not be covered by the provisions of this legislation.
Whilst we understand and support the tenet of the bill, we believe there are still areas of deficiency.
We hoped the government could have fixed those problems. Nevertheless we will be supporting this legislation; I am happy to support the bill because it is legislation that this community has called for and it is legislation that the Liberal Party has called for. However, there are still areas of concern where this legislation may need to come back to this house for future improvement.
Source: http://www.parliament.vic.gov.au/downloadhansard/assembly.htm
Thursday, August 9, 2007
Tuesday, August 7, 2007
Hansard - Intersection of Napoleon Road & Lakesfield Drive
PARLIAMENT OF VICTORIA – LEGISLATIVE ASSEMBLY
7 August 2007
page 38
Napoleon Road-Lakesfield Drive, Lysterfield: safety zone
Mr WAKELING – I wish to raise a matter of concern with the Minister for Roads and Ports and call upon the minister to establish a keep-clear zone on Napoleon Road at Lakesfield Drive in Lysterfield. Recently an electronic pedestrian crossing was installed near this busy intersection. Consequently when students are utilising this crossing, south-bound vehicles are banked up across Lakesfield Drive, preventing vehicles from turning right out of Lakesfield Drive onto Napoleon Road.
Residents have called for the installation of a keep-clear zone to allow for greater movement of vehicles, particularly during the morning and afternoon peak school times. Residents have requested the construction of a keep-clear zone similar to that currently in operation at the corner of Kelletts Road and St Lawrence Way in Rowville.
Source: http://www.parliament.vic.gov.au/downloadhansard/assembly.htm
7 August 2007
page 38
Napoleon Road-Lakesfield Drive, Lysterfield: safety zone
Mr WAKELING – I wish to raise a matter of concern with the Minister for Roads and Ports and call upon the minister to establish a keep-clear zone on Napoleon Road at Lakesfield Drive in Lysterfield. Recently an electronic pedestrian crossing was installed near this busy intersection. Consequently when students are utilising this crossing, south-bound vehicles are banked up across Lakesfield Drive, preventing vehicles from turning right out of Lakesfield Drive onto Napoleon Road.
Residents have called for the installation of a keep-clear zone to allow for greater movement of vehicles, particularly during the morning and afternoon peak school times. Residents have requested the construction of a keep-clear zone similar to that currently in operation at the corner of Kelletts Road and St Lawrence Way in Rowville.
Source: http://www.parliament.vic.gov.au/downloadhansard/assembly.htm
Hansard - Traffic Lights for Stud Road at Timbertop Drive, Rowville
PARLIAMENT OF VICTORIA – LEGISLATIVE ASSEMBLY
7 August 2007
page 38
Stud Road-Timbertop Drive, Rowville: traffic lights
Mr WAKELING – I wish to raise a matter of great concern with the Minister for Roads and Ports and call upon the Minister to improve the accessibility and safety provisions for members of the Eastern Districts Polish Association of Melbourne's facility located on Stud Road in Rowville. Currently members who access the facilities by public transport feel very unsafe in accessing this regional complex. Firstly, members arriving from Dandenong are forced to cross busy Stud Road. Secondly, residents arriving from Knox are forced to walk on the Stud Road shoulder to access the facility.
Given the volume and speed reached by vehicles along Stud Road, members of the Polish association have called for the installation of traffic lights at the corner of Stud Road and Timbertop Drive as well of the establishment of a footpath from the bus stop on the east side of Stud Road to the Polish club facility.
Source: http://www.parliament.vic.gov.au/downloadhansard/assembly.htm
7 August 2007
page 38
Stud Road-Timbertop Drive, Rowville: traffic lights
Mr WAKELING – I wish to raise a matter of great concern with the Minister for Roads and Ports and call upon the Minister to improve the accessibility and safety provisions for members of the Eastern Districts Polish Association of Melbourne's facility located on Stud Road in Rowville. Currently members who access the facilities by public transport feel very unsafe in accessing this regional complex. Firstly, members arriving from Dandenong are forced to cross busy Stud Road. Secondly, residents arriving from Knox are forced to walk on the Stud Road shoulder to access the facility.
Given the volume and speed reached by vehicles along Stud Road, members of the Polish association have called for the installation of traffic lights at the corner of Stud Road and Timbertop Drive as well of the establishment of a footpath from the bus stop on the east side of Stud Road to the Polish club facility.
Source: http://www.parliament.vic.gov.au/downloadhansard/assembly.htm
Thursday, August 2, 2007
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