PARLIAMENT OF NEW SOUTH WALES

Legislation Review Committee

LEGISLATION REVIEW DIGEST

NO. 41/56 8 AUGUST 2017

New South Wales Parliamentary Library cataloguing-in-publication data:

New South Wales. Parliament. Legislative Assembly.

Legislation Review Committee Legislation Review Digest, Legislation Review Committee, Parliament NSW [Sydney, NSW]: The Committee, 2016, 26p 30cm

Chair: Mr Michael Johnsen MP

8 August 2017

ISSN 1448-6954

1. Legislation Review Committee New South Wales 2. Legislation Review Digest No. 41 of 56 I Title. II Series: New South Wales. Parliament. Legislation Review Committee Digest; No. 41 of 56

The motto of the coat of arms for the state of New South Wales is Orta recens quam pura nites. It is written in Latin and means newly risen, how brightly you shine.

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Contents

Membership _____________________________________________________________ ii

Guide to the Digest _______________________________________________________ iii

Conclusions ______________________________________________________________iv

PART ONE BILLS ______________________________________________________________________ 8

1. CHARITABLE FUNDRAISING AMENDMENT (INQUIRIES) BILL 2017 __________________________ 8

2. CHILDREN AND YOUNG PERSONS (CARE AND PROTECTION) AMENDMENT (AUDITING OF OUT-OF-HOME CARE PROVIDERS) BILL 2017 ________________________________________________ 10

3. COAL MINE SUBSIDENCE COMPENSATION BILL 2017 __________________________________ 12

4. ENVIRONMENTAL PLANNING AND ASSESSMENT AMENDMENT (STAGED DEVELOPMENT APPLICATIONS) BILL 2017 ________________________________________________________ 19

5. TRANSPORT LEGISLATION AMENDMENT (AUTOMATED VEHICLE TRAILS AND INNOVATION) BILL 2017 _________________________________________________________________________ 21

FUNCTIONS OF THE COMMITTEE __________________________________________ 23 APPENDIX ONE

LEGISLATION REVIEW COMMITTEE

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Membership

CHAIR

Mr Michael Johnsen MP, Member for Upper Hunter

DEPUTY CHAIR

Mr Lee Evans MP, Member for Heathcote

MEMBERS

Ms Melanie Gibbons MP, Member for Holsworthy Mr James Griffin MP, Member for Manly Mr David Mehan MP, Member for The Entrance The Hon Shaoquett Moselmane MLC The Hon Gregory Pearce MLC Mr David Shoebridge MLC

CONTACT DETAILS

Legislation Review Committee Parliament of New South Wales Macquarie Street Sydney NSW 2000

TELEPHONE

02 9230 2096 / 02 9230 3382

FACSIMILE

02 9230 3309

E-MAIL

legislation.review@parliament.nsw.gov.au

URL

www.parliament.nsw.gov.au/lrc

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Guide to the Digest

COMMENT ON BILLS This section contains the Legislation Review Committees reports on Bills introduced into Parliament on which the Committee has commented against one or more of the five criteria for scrutiny set out in s 8A(1)(b) of the Legislation Review Act 1987.

COMMENT ON REGULATIONS The Committee considers all regulations made and normally raises any concerns with the Minister in writing. When it has received the Ministers reply, or if no reply is received after 3 months, the Committee publishes this correspondence in the Digest. The Committee may also inquire further into a regulation. If it continues to have significant concerns regarding a regulation following its consideration, it may include a report in the Digest drawing the regulation to the Parliaments special attention. The criteria for the Committees consideration of regulations are set out in s 9 of the Legislation Review Act 1987.

Regulations for the special attention of Parliament When required, this section contains any reports on regulations subject to disallowance to which the Committee wishes to draw the special attention of Parliament.

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Conclusions

PART ONE BILLS

1. CHARITABLE FUNDRAISING AMENDMENT (INQUIRIES) BILL 2017

Trespasses on personal rights and liberties: s 8A(1)(b)(i) of the LRA

Right against self-incrimination

The Committee notes in section 41L(1) provides that a person is not excused from producing a record, document or thing, to give information or evidence or answers on the grounds of self-incrimination. The Committee also notes sections 41L(2) and 41R(6) provide safeguards to a person that compliance under this Part will not be admissible in evidence against a person in civil or criminal proceedings if the person objects at the time on the grounds of self-incrimination or the person was not warned at an appropriate time that they may object on the grounds of self-incrimination. Given these safeguards, the Committee makes no further comment.

Retrospectivity

The Committee notes that section 41C within Schedule 1 Division 2 of the Bill allows for an existing non-public inquiry to be reconstituted as a public inquiry as defined by the amended Part 3A of the Bill. This may have implications for witnesses or organisations which have previously provided information or evidence to an existing non-public inquiry that were not previously subject to the powers contained in the Bill. This is particularly the case as the Bill contains provisions that exclude the right against self-incrimination in certain circumstances. However, the Committee recognises the public policy reasons for such provisions so as to allow for more transparent examination of funds managed by charitable organisations through a public inquiry process. As such, the Committee makes no further comment on this issue.

2. CHILDREN AND YOUNG PERSONS (CARE AND PROTECTION) AMENDMENT (AUDITING OF OUT-OF-HOME CARE PROVIDERS) BILL 2017

Trespasses on personal rights and liberties: s 8A(1)(b)(i) of the LRA

Right to privacy

The Committee notes that section 172H enables the Auditor-General to request information from required agencies and may inadvertently result in the production of personal and identifying information (for example, of staff, carers, or children and young persons in care) in circumstances where that information is not reasonably required to conduct the performance audit. The section therefore has the potential to trespass unduly on a persons right to privacy. The Committee refers this matter to the Parliament for its consideration.

Insufficiently subjects the exercise of legislative power to parliamentary scrutiny: s 8A(1)(b)(v) of the LRA

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Power to make regulations

Section 172E(4) as set out in Schedule 1 of the Bill provides that the regulations may make further provision for or with respect to performance audits under Part 8 of the Act. While regulations are disallowable pursuant to section 41 of the Interpretation Act 1987, and are therefore subject to some level of parliamentary scrutiny, the Committee nevertheless notes that the regulation-making power in question is quite broad. The Committee generally prefers that the parameters of a regulation-making power are more comprehensively set out in the principal legislation and refers this matter to Parliament for its consideration.

3. COAL MINE SUBSIDENCE COMPENSATION BILL 2017

Trespasses on personal rights and liberties: s 8A(1)(b)(i) of the LRA

Retrospective liability for compensation

The Committee notes that the Bill potentially places liability retrospectively to the proprietors of coal mines for any subsidence caused by an active coal mine before the introduction of the Bill. The Committee generally prefers that legislation not apply retrospectively. Retrospectivity is contrary to the rule of law that allows people knowledge of what the law is at any given time, so they may behave accordingly. However, the Committee acknowledges the policy reasons for such a provision, particularly to create a direct financial incentive to reduce future subsidence impacts on communities. In these circumstances, the Committee makes no further comment.

Access to lodge claim for compensation

The Committee notes that section 11 requires that all claims for compensation be lodged online only. The Committee is concerned whether this will unfairly disadvantage those claimants who do not have equal access to, or knowledge of, internet usage. However, the Committee notes the administrative convenience of processing online claims rather than paper forms - particularly as the Bill intends to improve the efficiency of claim turnaround time. In these circumstances, the Committee makes no further comment.

Privity of contract

The Committee notes that section 17 potentially encroaches on the privity of contract between parties. However, the Committee notes that the Bill is intended to protect the rights of claimants and property holders that have been affected by subsidence from active and non-active coal mines. As such, any privity of contract that was contrary to the Act may not be in the best interests of the claimant, particularly in cases where compensation is owed. In these circumstances, the Committee makes no further comment.

Compulsory acquisition of land without agreement

The Committee is concerned that the Bill allows the Chief Executive the wide power to purchase a claimants property by compulsory acquisition and may sell, lease or otherwise dispose of this property. The Committee notes that the Chief Executive may only do this in circumstances where the claimant has not come to an agreement about the purchase of the land within a reasonable time, however, that the leng