Thursday, 28 November 2024

Bills

Consumer and Planning Legislation Amendment (Housing Statement Reform) Bill 2024

Statement of compatibility

Gabrielle WILLIAMS (Dandenong – Minister for Government Services, Minister for Consumer Affairs, Minister for Public and Active Transport) (11:39): In accordance with the Charter of Human Rights and Responsibilities Act 2006, I table a statement of compatibility in relation to the Consumer and Planning Legislation Amendment (Housing Statement Reform) Bill 2024:

Opening paragraphs

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (the Charter), I make this Statement of Compatibility with respect to the Consumer and Planning Legislation Amendment (Housing Statement Reform) Bill 2024 (the Bill).

In my opinion, the Bill, as introduced to the Legislative Assembly, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.

Overview

The purpose of the Bill is to acquit the Victorian Government’s public commitment in the Housing Statement to:

• Introduce initiatives to address issues that drive up the cost of housing for renters, prospective property purchasers, and property owners in strata developments;

• Increase renter protections by providing more certainty over their leases, living standards and finances; and

• Strengthen the Victorian planning system by implementing Red Tape Commissioner recommendations and related reforms.

The Bill amends laws across the Consumer Affairs, Planning, and Attorney-General portfolios, including amendments to –

• the Residential Tenancies Act 1997 (RT Act) to:

• repeal provisions that provide for residential rental providers to give notices to vacate to renters at the end of first fixed term residential rental agreements;

• prohibit residential rental providers and agents from accepting unsolicited offers of rent from prospective renters;

• provide for further matters to be considered in reviews of rent increases;

• extend notice periods in proposed rent increases and certain notices to vacate to 90 days;

• prohibit the use of an application form to enter into a residential rental agreement that is not in the prescribed form;

• provide additional protections around the disclosure, use and destruction of renters’ personal information;

• prohibit rental providers, their agents or third party rent-tech platforms from charging fees for prescribed matters in relation to applications to enter residential rental agreements and the payment of rent;

• require premises advertised or offered to be let under residential rental agreements to comply with the rental minimum standards; and

• require residential rental providers to ensure any smoke alarms installed on rented premises are correctly installed and in working condition; and

• make miscellaneous and other consequential amendments.

• the Estate Agents Act 1980 (EA Act) to:

• provide for the requirement for registration of agents’ representatives;

• provide for continuing professional development requirements for estate agents and agents’ representatives; and

• increase the penalties for certain offences in relation to conduct by estate agents and agents’ representatives in the sale of residential property; and

• the Owners Corporations Act 2006 (OC Act) to:

• provide for appointment, registration, and initial educational requirements for officers in effective control of corporations that are managers of owners corporations;

• provide for initial education requirements for natural persons who are managers of owners corporations; and

• provide for continuing professional development requirements for natural persons who are managers of owners corporations and registered officers in effective control; and

• the Conveyancers Act 2006 to provide for continuing professional development requirements for licensed conveyancers;

• the Sale of Land Act 1962 to increase the penalties for certain offences in relation to the sale of land;

• the Planning and Environment Act 1987 (PE Act) in relation to the planning scheme amendment process and permit application process, planning panels, proceedings before the Victorian Civil and Administrative Tribunal (VCAT) and compensation.

• the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) in relation to:

• proceedings under planning enactments; and

• providing for dispute resolution by RDRV for certain applications under the RT Act.

Human Rights Issues

The human rights protected by the Charter that are relevant to the Bill are:

• Recognition and equality before the law (section 8)

• Freedom of movement (section 12)

• Privacy and reputation (section 13)

• Freedom of expression (section 15)

• Property rights (section 20)

• Fair hearing (section 24)

Recognition and equality before the law (section 8)

Section 8 of the Charter provides that:

• Every person has the right to recognition as a person before the law.

• Every person has the right to enjoy their human rights without discrimination.

• Every person is equal before the law and is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination.

• Measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination.

Estate Agents Act 1980

The Bill promotes the right to recognition and equality before the law by removing gendered language in the EA Act. These amendments promote this right by clarifying that the provisions in these Acts are inclusive of all persons, including women and non-binary persons by replacing references to gendered pronouns with non-gendered terms such as ‘the person’, as is standard under such revisions. For these reasons I am of the view that the Bill promotes the right to recognition and equality before the law across the EA Act.

New section 37 of the EA Act (clause 70) may engage the right to equality and equal protection against discrimination by providing eligibility criteria for a person to be registered to be employed as an agent’s representative. The specified eligibility requirements (new section 37(2)) cover a number of matters including that the applicant is at least 18 years of age, has passed any prescribed courses of instruction or examination, is not an insolvent under administration, and is not a represented person within the meaning section 3(1) of the Guardianship and Administration Act 2019. To the extent that this provision limits the right, the limitation is reasonable and proportionate, as estate agents and their representatives provide professional services to people who are often making significant financial decisions or who are otherwise affected significantly by an agent’s representative’s actions, therefore it is reasonable for the public to rely on and expect that an agent’s representative satisfies these eligibility criteria, as they are relevant to performing the role. For these reasons I am of the view that this provision is compatible with the Charter.

Owners Corporations Act 2006

Clause 91(2) may engage the right to equality and equal protection against discrimination by inserting a new eligibility requirement into section 179 of the OC Act, which provides that a natural person is not eligible to be registered (as a manager or officer in effective control) if the person has not completed any prescribed courses or examinations. To the extent that this provision limits the right, the limitation is reasonable and proportionate, as managers or officers in effective control provide a number of important functions in relation to the management and control of common property, repairs, and insurance, on behalf of and for the benefit of, owners of a property. It is reasonable for owners, prospective owners, and residents to rely on and expect that managers or officers in effective control undertake prescribed courses or examinations, as they are relevant to competently performing the role. For these reasons I am of the view that this provision is compatible with the Charter.

Planning and Environment Act 1987

New sections 158C to 158E of the PE Act (clause 509) permit two or more submissions to a panel to be treated as if they were one submission, if the panel is satisfied that the issues raised in the submissions are the same or substantially the same. The persons who made the submissions may nominate one submitter the lead submitter. Alternatively, the panel may designate one or more of the persons who made the submissions to be a lead submitter, having regard to the person’s capacity to advance the matters raised by the submissions, and whether the nomination will facilitate the efficient and timely hearing of the matter. The panel will only be required to give an opportunity to be heard in relation to the submissions to the lead submitter. If no lead submitter can be nominated, the panel is not required to give an opportunity to be heard in relation to the submissions to any person, but may do so. In considering submissions, panels are also bound by the rules of natural justice as provided for in section 161 of the PE Act.

New sections 158F and 58G (clause 509) set out a process where a panel may consider submissions referred to it by a hearing, on the basis of documents, or both. The panel must give the Minister, the relevant planning authority and any person who has made a submission that is referred to the panel the opportunity to make a submission to the panel about the proposed decision. The Minister may also direct a panel to consider one or more of the submissions about an amendment referred to a panel or give a person a reasonable opportunity to be heard by conducting a hearing.

I consider that the process in relation to like submissions, and the requirement to afford natural justice, will be reasonable in the circumstances so as to not constitute discrimination (for example in relation to those with disability, or language or cultural barriers to communicating effectively in writing). I also consider that, by giving all persons who have made a submission that is referred to a panel a reasonable opportunity to object to the proposed written process and make submissions as to why they should be heard by a panel conducting a hearing, any subsequent decision to determine the matter using a written process will also be reasonable in the circumstances so as to not constitute discrimination. I consider the Bill to be compatible with the right to recognition and equality before the law in this regard.

Freedom of movement (section 12)

Section 12 of the Charter provides that every person lawfully within Victoria has the right to move freely within Victoria, to enter and leave it, and has the freedom to choose where to live. This right is, however, not an absolute right under the Charter and may be subject to such reasonable limitations as are demonstrably justified in a free and democratic society, including the property rights of others.

Residential Tenancies Act 1997

The amendments to the RT Act in Part 2 of the Bill promote the right of renters to choose where to live. In particular, clauses 25 (repeal of sections 91ZZD and 91ZZDA which provide for ‘no reason’ notices to vacate), 19-24 (increasing notice periods of rental increases and notices to vacate from 60 days to 90 days), and 16 (inserting new section 65B advertising of premises for rent that do not comply with rental minimum standards at advertisement).

These amendments are part of the broader reforms to protect housing for renters by providing more certainty over their leases, living standards and finances, and promote the right of renters to choose where to live by:

• providing renters with more time to assess housing options and move when issued with a notice to vacate or rent increase (clauses 19-24);

• providing renters with more flexibility to choose whether they wish to continue a periodic tenancy after the end of an initial fixed term (clause 25); and

• providing confidence that rental advertisements may be relied on to comply with the rental minimum standards (clause 16).

For these reasons I am of the view that these amendments are compatible with and promote the right to choose where to live under section 12 of the Charter.

Privacy and reputation (section 13)

Section 13 of the Charter provides that a person has the right not to have their privacy, family, home or correspondence unlawfully and arbitrarily interfered with and the right not to have their reputation unlawfully attacked. An interference will be lawful if it is permitted by a law which is precise and appropriately circumscribed, and will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the legitimate aim sought.

Residential Tenancies Act

Information gathering, protection and sharing

New section 30BA of the RT Act (clause 6) engages the right to privacy by permitting a residential rental provider to request prescribed information from applicants. This information includes prescribed identity information, prescribed financial information, prescribed information relating to the applicant’s employment, and any other matter prescribed.

New section 30BAA of the RT Act (clause 5) prohibits a rental provider or their agent from preparing or authorising the preparation of a rental application form that is not in the prescribed form. This reform will have the effect of requiring prospective renters to provide information required in the standard form application. Although there is no requirement that a person submit any of the information, if they do not provide this personal information, then their residential rental application will be incomplete, which may place the person at a disadvantage.

To the extent that this right is engaged by these reforms, there are existing protections in section 30B of the RT Act which provides that a residential rental provider or that person’s agent must not use personal information disclosed by a person on an application form used to apply to enter into a residential rental agreement unless the use is for assessing the person’s suitability as a renter or any other requirement of the RT Act. In addition to these protections, disclosure of this type of information is not arbitrary as it is necessary to promote a robust and fair process for assessing applications. Based on the information provided, the residential rental provider may enter into a legally binding rental agreement with the preferred applicant(s), and this information is required to provide legality and certainty to the agreement.

The Bill also provides further protection of renter’s information in clause 46. New section 505CAB of the RT Act provides an offence for failure of a residential rental provider or their agent to take reasonable steps to protect renter’s information from misuse or loss, and unauthorised access, modification, or disclosure.

New section 505CAD provides that a residential rental provider or the provider’s agent must not disclose information unless written consent has been given by the renter, the disclosure is in accordance with an order of a court or tribunal or an Act of Parliament, necessary to prevent threat to life, public safety, or in compliance a number of other matters in relation to statutory functions of law enforcement agencies.

New section 505CAC provides that a residential rental provider or the provider’s agent must destroy or permanently de-identify the renter’s information within 3 years after the residential rental agreement terminates, or for an applicant for a residential rental agreement whose application is unsuccessful within 30 days (after an agreement is entered into for that property) or within 6 months days (after an agreement is entered into for that property, for the purposes of the applicant applying for other properties, with written consent of the applicant.)

Lastly, new section 505CAE provides that a residential rental provider or the provider’s agent is not required to comply with sections 505CAB, 505CAC or 505CAD to the extent that the residential rental provider or the provider’s agent has complied with, or has been exempted from compliance with, a corresponding obligation under Australian and Victorian privacy laws.

While these amendments protect and promote renters’ rights to privacy, they also provide for exceptions enabling rental providers or their agents to retain, use and disclosure of information in specified circumstances that may impact renters’ right to privacy under section 13 of the Charter. However, these exceptions are necessary and appropriate to ensure that the proposed information management framework aligns with existing Victorian and Australian privacy frameworks and responds appropriately to relevant risks (such as threats to life) on a case-by-case basis.

For these reasons, I consider that these new provisions in the RT Act are compatible with the right to privacy, and further promotes the right to privacy by protecting renter’s personal information.

Right of renters not to have their home unlawfully and arbitrarily interfered with

The amendments to the RT Act in Part 2 of the Bill may promote the right of renters not to have their home unlawfully and arbitrarily interfered with under section 13(a) of the Charter. In Director of Housing v Sudi VCAT 328 (31 March 2010), the Victorian Civil and Administrative Tribunal found that evicting or seeking to evict a person from their housing may constitute an interference with their right to home.

Section 13(a) of the Charter requires that the interference be lawful, governed by ‘clear and publicly accessible rules of law and procedures that are predictable and foreseeable, and not arbitrary in the sense of being reasonable, necessary and proportionate.

In particular, clauses 25 (repeal of sections 91ZZD and 91ZZDA which provide for ‘no reason’ notices to vacate) may promote this right by removing the ability of rental providers to issue notices to vacate arbitrarily or with no specific reason at the end of fixed term leases.

To the extent that this right is engaged by the Bill, for these reasons, I am of the view that these amendments are compatible with and promote the right of renters not to have their home unlawfully and arbitrarily interfered with under section 13(a) of the Charter.

Estate Agents Act 1980

New section 33(3A) of the EA Act (Clause 68) may engage the right to privacy as it provides that the public register of estate agents and agents’ representatives must contain details in relation to each registered agent’s representative. These matters include a number of personal details including the person’s name and registered address, the name and address of the estate agent who employs the registered agent’s representative, and any Tribunal or court orders concerning the registered agent’s representative of which the Registrar has notice. Section 33 of the EA Act currently provides for the register to exist and be open for public inspection. Section 33(3) of the EA Act also currently provides that the register must contain these types of personal information in relation to licensed estate agents or estate agency businesses, including agent’s representatives. New section 33(3A) has the effect of capturing these types of personal information in relation to registered agents’ representatives, and does not further engage or limit the right to privacy.

New Part IIIA of the EA Act (Clause 70) may engage the right to privacy as it provides that an application of to be registered or to be employed as an agents’ representative must include personal information, such as name and address, of the applicant, and the licenced estate agent who employs the applicant. Although there is no requirement that a person submit an application, it is a condition of registration, used for the purposes of assessing the application and for inclusion on the register. To the extent that this provision limits the right to privacy, it is reasonable and proportionate as a means to assess a person’s suitability to be a registered agent’s representative and to permit the public to access information about registered agents’ representatives, and is in accordance with the law.

For these reasons, I consider that these provisions are compatible with the right to privacy.

Victorian Civil and Administrative Tribunal Act 1998

Rental Dispute Resolution Victoria proceedings

New section 38AA(2) of the VCAT Act (clause 1303) authorises VCAT to disclose information and data to the Director of Consumer Affairs Victoria (DCAV). Section 109 of the Australian Consumer Law and Fair Trading Act 2012 establishes a range of functions for the DCAV in relation to Victorian Consumer Acts, including the RT Act. These functions include regulatory monitoring, compliance and enforcement functions in relation to the residential tenancies industry. The DCAV requires access to certain information about the resolution of residential tenancies disputes through RDRV in order to exercise their monitoring, compliance and enforcement functions for the residential tenancies industry.

To the extent that the information disclosed by VCAT includes personal information, the Bill engages the right to privacy. However, the disclosure of personal and identifying information is not arbitrary as new section 38AA(2) provides that data and information may only be disclosed in accordance with an information sharing arrangement established under section 133 of the Australian Consumer Law and Fair Trading Act 2012.

Section 133 of the Australian Consumer Law and Fair Trading Act 2012 provides that the information to which the information sharing agreement may relate is limited to the following:

• information concerning investigations, law enforcement, assessment of complaints, licensing or disciplinary matters;

• probity assessments and reference checks concerning persons who provide, or propose to provide, goods or services to consumers;

• any other information affecting the interests of consumers; and

• any other information of a prescribed kind.

As the disclosure of information will be limited to circumstances provided for by an information sharing agreement in line with section 133, I am of the view that this provision is compatible with the Charter.

Planning and Environment Act 1987

As discussed above in relation to recognition and equality before the law, new section 158C to 158E of the PE Act (clause 509) permits two or more submissions to a panel to be treated as if they were one submission, if the panel is satisfied that the issues raised in the submissions are the same or substantially the same. If a lead submitter is nominated or designated, a limited amount of personal information such as the lead submitter’s name and contact details may need to be provided to other submitters. However, I note that the disclosure would be made with their knowledge and consent.

The Bill also contains provisions that require a person to provide information, including by enabling a person to request that a municipal council prepare an amendment to a planning scheme in force in its municipal district (new Division 1AA in Part 3 of the PE Act (clause 308)). A municipal council must decide whether to refuse the request or to apply to the Minister for authorisation to prepare the planning scheme amendment. A copy of the request must be given to the Minister.

To the extent that the information collected under these or other provisions include personal information, the right to privacy will be engaged. However, the collection of information will be permitted by law and will be confined to information that is necessary for the fulfilment of various statutory functions (such as determining applications).

Accordingly, I consider that any interference with a person’s privacy resulting from these provisions will be lawful and not arbitrary.

Freedom of expression (section 15)

Section 15(1) of the Charter provides that every person has the right to hold an opinion without interference. Section 15(2) of the Charter provides that every person has the right to freedom of expression. This includes the freedom to seek, receive and impart information and ideas of all kinds; whether orally, in writing, in print or by way of art or other medium chosen by that person. The right to freedom of expression is generally considered to encompass the right not to impart information. Section 15(3) of the Charter provides that special duties and responsibilities are attached to the right to freedom of expression and that the right may be subject to lawful restrictions reasonably necessary to respect the rights of other persons and for the protection of national security, public order, public health or public morality.

Residential Tenancies Act

New section 30BAA of the RT Act (Clause 5) may interfere with the right to freedom of expression by prohibiting a residential rental provider or their agent from preparing or authorising the preparation of an application form used to apply to enter into a residential rental agreement that is not in the prescribed form. However, I consider that this provision is necessary to ensure that residential rental agreements are compliant with the RT Act, promote a clear understanding of parties’ rights and responsibilities in relation to the agreement, alleviate administrative burden on renters applying for multiple rental properties, and to protect privacy rights by ensuring renters are not required to provide information that is neither appropriate nor necessary for the purposes of assessing a residential rental application.

New section 65B of the RT Act (Clause 16) may also interfere with the right to freedom of expression by prohibiting a residential rental provider or their agent from advertising or otherwise offering premises to let unless at the time the premises are advertised or otherwise offered to let, the residential rental provider or the provider’s agent reasonably believes the premises comply with the rental minimum standards. I consider that this provision is necessary to protect members of the public and public morality under section 15(3) of the Charter to protect the public from misleading advertisements in relation to housing, and to protect the rights of renters to apply for and reside in rental properties that comply with the minimum legal standards of repair and functionality required under the RT Act.

Therefore, to the extent that the freedom of expression is engaged, these provisions fall within the exception in section 15(3) of the Charter, as reasonably necessary to respect the rights of other persons.

Property rights (section 20)

Section 20 of the Charter provides that a person must not be deprived of their property other than in accordance with law. This right requires that powers which authorise the deprivation of property are conferred by legislation or common law, are confined and structured rather than unclear, are accessible to the public, and are formulated precisely.

While the Charter does not define ‘property’, case law indicate that the term should be interpreted ‘liberally and beneficially to encompass economic interests’. This right requires that powers which authorise the deprivation of property are conferred by legislation or common law, are confined and structured rather than unclear, are accessible to the public, and are formulated precisely. Existing authority also suggests that the laws that permit or require a deprivation of property should not operate arbitrarily. Accordingly, an assessment of compatibility will depend upon the extent to which a deprivation of property does not operate arbitrarily, and is sufficiently clear and certain to be considered ‘in accordance with the law’.

Residential Tenancies Act

Prohibition on accepting unsolicited offers for higher rents

Clause 7 may engage property rights under the Charter by inserting a new offence into section 30F of the RT Act prohibiting a residential rental provider or the provider’s agent from accepting an unsolicited or otherwise uninvited offer of an amount of rent that is higher than the advertised amount of rent for the rented premises. This expands upon section 30F(3) of the RT Act which prohibits a residential rental provider or that person’s agent from soliciting or otherwise inviting an offer of an amount of rent that is higher than the advertised amount.

This reform may inhibit the owner’s ability to receive a higher price for the tenancy of their property. However, this engagement does not amount to a deprivation of property, as it does not limit the price that the owner may choose to advertise the rental property for, nor does it affect any accrued rights of the owner.

For these reasons I am of the view that the provision does not limit the property rights of the owner.

Repeal of ‘no reason’ notice to vacate

Clause 25 engages the property rights under the Charter by repealing sections 91ZZD and 91ZZDA of the RT Act. Sections 91ZZD and 91ZZDA provide for a residential rental provider under a fixed term residential rental agreement to give the renter a notice to vacate the rented premises at the end of the initial fixed term. The relevant term in relation to section 91ZZD is a fixed term of not more than 5 years, and section 91ZZDA a fixed term of more than 5 years.

While this reform may engage property rights, the RT Act contains a range of provisions permitting a residential rental provider to issue a notice to vacate for specified reasons, such as the premises being sold (section 91ZZB), premises to be occupied by residential rental provider or provider’s family (section 91ZZA), and premises to be used for business (section 91ZZ). These existing provisions protect the residential rental provider’s property rights, in the sense of being able to control their property, and remain unaffected by reforms proposed in the Bill.

Further, by removing the option for a residential rental provider under a fixed term residential rental agreement to give the renter a notice to vacate the rented premises at the end of the initial fixed term, renters’ property rights (in relation to their rental agreement becoming a periodic residential rental agreement under section 91Q of the RT Act) and the right to protection against unlawful and arbitrary interference with their home are promoted. The amendments are part of a broader framework for securing housing for Victorian renters, including by promoting the property rights of renters under a residential rental agreement. As such, any deprivation of property as a result of clause 25 will not be arbitrary or unreasonable and in accordance with the law.

For these reasons I am of the view that clause 25 is consistent with property rights.

Estate Agents Act 1980

Clause 82 may engage property rights of an estate agent or agent’s representative who is found to have committed an offence against sections 47AE(1), 47AF, (2D), (2E), (2F) or (2G) of the EA Act, by amending section 94A of that Act to include these provisions. Section 94A provides that the Court may order the person (found to have committed the offence) to pay to the Victorian Property Fund any commission in relation to that offence. Clause 82 does not create any new offences, and any forfeiture of commission received is effectively a fine in the amount of the commission and not a confiscation of property. Even if it were considered to be a deprivation of property, in my view it is lawful and not arbitrary, as the commission was calculated and invoiced as a result of an estate agent or agent’s representative having committed an offence, and the language in the Bill is clear as to which offences it relates.

Planning and Environment Act 1987

New sections 99A and 104B to 104C (clauses 701 and 702) amend the PE Act to provide that if a person is liable to pay interest on compensation under Part 4 of that Act, the Governor in Council may, by order published in the Government Gazette, determine the rate of interest to be paid in respect of unpaid compensation. The Minister may only recommend that such an Order be made after consulting the Attorney-General, the Treasurer, and the Minister administering the Major Transport Projects Facilitation Act 2009. In addition, the Minister may only recommend a rate that the Minister considers is both compensatory in nature, and is commensurate with a fair market rate that reflects the opportunity cost of money.

This does not amount to a deprivation of property, as it does not affect any accrued rights of the owner and requires any interest rate that is determined to be compensatory in nature. I am therefore of the view that the provision does not limit the property rights of the owner.

Fair hearing (section 24)

Section 24(1) of the Charter provides that a person who is a party to a civil proceeding has the right to have the proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing. The term ‘civil proceeding’ in section 24(1) has been interpreted as encompassing proceedings that are determinative of private rights and interests in a broad sense, including some administrative proceedings.

Planning and Environment Act 1987

Enhanced case management powers

New Division 3A of Part 4 of the PE Act (clause 604) enables VCAT to actively manage a proceeding under that Act where desirable in the interests of the just, timely and efficient determination of the proceeding. This includes powers to impose time limits on the making of submissions or examination of a witness, to prohibit or limit the cross examination of a witness, and to impose reasonable limits, restrictions or conditions in respect of the conduct of the proceeding or the conduct of a party, if all the parties to the proceeding agree. VCAT may also conduct all or part of the proceeding entirely on the basis of documents, without agreement of the parties, where desirable for the efficient determination of the proceeding.

New Division 3A also gives VCAT the power, in a proceeding under the PE Act, to confine the proceeding to particular matters in dispute, or summarily strike out or dismiss all or any part of the proceeding that lacks substantive or objective merit and has no real prospect of success. Notably, VCAT may only exercise this power when constituted by a presidential member or a member who is an Australian lawyer.

New subsection 23(6) of the PE Act (clause 501) provides that a submission in relation to a planning scheme amendment must not be referred to a panel by a planning authority if the submission is frivolous, vexatious or wholly irrelevant to the amendment under consideration.

As discussed above, new sections 158F and 58G (clause 509) set out a process where a panel may consider submissions referred to it by a hearing, on the basis of documents, or both.

New sections 159A and 162A (clauses 511 and 513 respectively) also enable panels to give directions about conferences of experts and joint experts reports.

Regulating the making of submissions and cross-examination of witnesses for the just, timely and efficient determination of a proceeding and with the consent of all parties will not, in my view, limit the right to a fair hearing under the Charter. Similar powers to actively manage proceedings exist in the Civil Procedure Act 2010. While conducting a proceeding on the basis of documents has the potential to limit the right, it is well recognised at common law that a hearing based on written submissions can be fair, provided that parties can fully present their case and respond to adverse material. Further, the identification and dismissal of unmeritorious claims that have no real prospect of success is not at odds with the right to a fair hearing, particularly as these powers will be construed consistently with procedural fairness and relevant Charter rights, including the right to equality and non discrimination. Accordingly, I consider that these powers will be compatible with the right to a fair hearing.

Treatment of like submissions and objections

As discussed above, new sections 158C to 158E of the PE Act (clause 509) permits two or more submissions to a panel to be treated as if they were one submission, if the panel is satisfied that the issues raised in the submissions are the same or substantially the same. Similarly, new section 83AA of the PE Act (clause 601), provides that where two or more objectors who seek to contest a proceeding and lodge objections relying on similar grounds or raising similar issues, VCAT may treat one or more of the objectors as representatives, with their consent.

While these provisions may deprive a particular individual of an opportunity to be heard, they will not unreasonably limit the right to a fair hearing. Each submission or objection must still be considered by the relevant body, and will only be affected by these provisions where it raises substantially the same issues as another submission or objection. In those cases, the issues will be heard by the relevant body through the group representative. It is anticipated that this process will allow greater time for substantive issues to be presented and interrogated by the panel or authority, compared with the current panel process in which a large number of submitters with the same submission will each only have a short period of time to present. For these reasons, I consider that these provisions are compatible with the right to a fair hearing under the Charter.

Expedited consideration of planning scheme and permit applications

New section 23A of the PE Act (clause 310) disapplies sections 23 to 27 of that Act in relation to amendments that are in a class prescribed to be a low-impact amendment, or which then Minister has determined is a low-impact amendment pursuant to the new section 16N (clause 308). The provisions support a pathway for less complex amendments to be considered. The Minister must not determine that an amendment to a planning scheme is a low-impact amendment under this section if the planning authority has agreed under section 96A(2) of the PE Act to consider an application for a permit concurrently with the preparation of the amendment.

I consider these amendments to be consistent with the right to a fair hearing. As noted, the provisions apply only to less complex amendments and do not apply if a person who requests a planning authority to prepare an amendment to a planning scheme also applies to the planning authority for a permit for any purpose for which the planning scheme as amended by the proposed amendment would require a permit to be obtained, and the authority may agree to consider the application for the permit concurrently with the preparation of the proposed amendment.

I also note that clause 409 of the Bill amends section 97E(1) of the PE Act to provide that the Minister for Planning may refer any objections or submissions received in respect of a permit application referred to the Minister under section 97B or 97C of that Act, including any late objections or submissions, to a panel appointed under Part 8 of the PE Act. Section 97B provides that the Minister may direct the responsible authority to refer a permit application to the Minister in certain circumstances. Section 97C provides that the responsible planning authority may request the Minister to decide the application.

The amendments will enable the Minister to more efficiently intervene in permit applications that are experiencing unreasonable delays in circumstances where the Minister is satisfied that there is no need to obtain further independent review and advice from a planning panel to assist the Minister, who remains required to give regard to objections or submissions received in respect of a permit application referred to the Minister. Clause 409 also makes consequential amendments to section 97E(5) to omit paragraphs (a) and (b) of the PE Act. Paragraph (c) is retained.

In my view, the provisions strike a reasonable balance between the rights of applicants and of submitters and are the least restrictive means of achieving the intent to ensure that decisions are not unduly delayed. For that reason, I consider that these provisions will be compatible with Charter rights.

Victorian Civil and Administrative Tribunal Act 1998

Clause 603 inserts new clauses 56A and 56B in Schedule 1 to the VCAT Act. New clause 56B states that if, in a proceeding for review of a decision under a planning enactment, VCAT affirms or varies the decision, it is sufficient for the purposes of section 117 of the VCAT Act for VCAT to give a summary of the key basis for that decision. Access to reasons for a decision is relevant to the right to a fair hearing insofar as a statement of reasons enables those affected by a decision to know the basis on which the decision was made and to facilitate an effective right of appeal. However, I consider that the provision of reasons in summary form does not limit a person’s right to a fair hearing. The option to provide reasons in this manner will only be available to VCAT when affirming the decision under review or making variations to it, and any reasons must still set out the key basis for VCAT’s decision. Accordingly, an appeal court would be able to follow the conclusions of fact and law which form the basis for the decision. Further, reducing the level of detail required in reasons for certain decisions may promote the right to a fair hearing more broadly, by reducing delays and enabling matters to be heard more expeditiously.

The Bill provides for the effective and prompt resolution of disputes between renters and residential rental providers through RDRV proceedings under the VCAT Act.

Rental Dispute Resolution Victoria

Fair hearing (section 24) Section 24(1) of the Charter provides that a party to a civil proceeding has the right to have the proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

Delegation by VCAT or principal registrar

Clause 1302 inserts new section 32AB into the VCAT Act. New section 32AB(1)(a) provides that the principal registrar is authorised to assess applications under the RT Act for suitability or eligibility to be dealt with as a RDRV proceeding. The requirement that a proceeding must be considered ‘suitable’ in order to be in scope for RDRV ensures that a just decision can be reached through the most appropriate resolution method for each proceeding. The requirement to assess applications for their suitability and eligibility also allows potential limitations to the effectiveness of ADR, such as power imbalances between parties, to be managed effectively, and the parties to be triaged to the right type of proceeding.

New section 32AB(2) provides that the principal registrar may delegate any function the principal registrar has in relation to ADR in RDRV proceedings to member of staff to perform. This includes the functions of assessing applications and conducting RDRV proceedings. The principal registrar may only delegate a function to a member of staff if the member is appropriately qualified to perform the function. New section 32AB(4) provides that ‘appropriately qualified’ has the same meaning as in section 32A(4) of the VCAT Act.

The definition includes having the qualifications, experience or standing appropriate to perform the relevant function. The requirement that ADR proceedings be conducted by a person who is appropriately qualified to do so upholds the right for parties to a civil proceeding to have the proceeding decided by a competent Tribunal.

Clause 1305 inserts new section 93D into the VCAT Act. New section 93D(1) provides that if the Tribunal or the principal registrar considers that an application under the RT Act is suitable to be dealt with at RDRV or as an RDRV proceeding, the Tribunal or principal registrar may refer the application to be dealt with as a RDRV proceeding. New section 93D(2) provides that a referral to RDRV may be made with or without the consent of the parties. The participation of parties in RDRV proceedings does not limit their right to a fair hearing if the matter is not resolved. If parties are unable to successfully reach an agreement at RDRV, the option to have the dispute heard as proceeding at VCAT, and have the matter heard and decided by a competent tribunal, remains available. New section 93H of the VCAT Act provides that evidence of anything said or done in the course of an RDRV proceeding is not admissible in any subsequent hearing before the Tribunal in the proceeding to which the application under the RT Act relates, unless all parties agree to the giving of the evidence. This provision ensures that if the matter is not resolved in an RDRV proceeding, the participation of parties in the RDRV proceeding does not limit procedural fairness if the matter progresses to a Tribunal hearing.

I consider that the Bill is compatible with the Charter because it does not limit any rights under the Charter, and to the extent that there is limitation, it is reasonable and justified.

Gabrielle Williams MP

Minister for Consumer Affairs

Second reading

Gabrielle WILLIAMS (Dandenong – Minister for Government Services, Minister for Consumer Affairs, Minister for Public and Active Transport) (11:39): I move:

That this bill be now read a second time.

[CONTENT TO BE INCORPORATED]

James NEWBURY (Brighton) (11:59): I move:

That debate be adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned fortwo weeks. Debate adjourned until Thursday 12 December.