Important Bills passed by NSW parliament go mouldy on the shelf awaiting proclamation … Modern Slavery Act and Surveillance Devices amendments … Where are they? … Revisions and refinements … Government runs cold and warmish on data breaches … Polly Peck reports from Macquarie Street’s bear pit
NSW’s Modern Slavery Act will be the state’s Ancient Slavery Act by the time it is proclaimed.
The legislation was sponsored by Christian Democratic MLC Paul Green and enthusiastically supported by the ALP and now it may never emerge fully formed into the light of day.
The Coalition government came on board with some substantial amendments and the Bill passed parliament in June 2018, and then received the governor’s assent.
The government appeared to be a reluctant supporter and probably only went along with it because it was keen to curry favour with Fred Nile’s Christian Democratic Party – an upper house cross-bench power broker.
Fifteen months after its passage the Act still has not been proclaimed, even though Premier Gladys Berejiklian said in December 2018 that the government was “working towards” its commencement on July 1, 2019.
Instead, Gladys’ government has sent it to a parliamentary committee with a view to carefully defenestrate the key parts of the enterprise.
It doesn’t look like the sort of stuff a Liberal government would welcome. After pow-wows with various state agencies the Department of Premier and Cabinet feels that yet more amendments are needed:
In June the Special Minister of State, Don Harwin, told the Legislative Council that the Act would be sent to the Standing Committee on Social Issues.
Submissions close on October 4, and the reporting deadline is February 14, 2020. The terms of reference are here and so far there is only one submission to the committee – from the government.
There’s more about modern slavery here …
The standing committee could either recommend that the government’s amendments be adopted or that all or part of the legislation be scrapped.
Carolyn Kitto, the director of Stop The Traffik, one of the groups supporting the Act, says, “The federal law in no way dilutes the usefulness of the state legislation or challenges its distinction strengths”.
“The inclusion of penalties for non-compliance and an independent commissioner are vital elements of the NSW Act and should be seen as its regulatory strengths, not weakness or unnecessary burden on NSW business or government.”
It is quite a well-worn technique for governments to let everyone think that a piece of legislation is a splendid idea and then, once it has passed both houses, it’s off for slow torture and ultimately death in a committee.
Does the same fate await the Surveillance Devices Amendment (Statutory Review) Act, which has been passed, powdered, perfumed and 12 months later still can’t appear in all its finery because it has not been proclaimed?
The attorney general Mark Speakman, told estimates on September 3 that the legislation will commence on October 28. He explained the delay was due to required changes in practice manuals, procedures, practice notes, and policing practices.
“All those have got to be documented, trained in-house. That does not happen overnight” – or even in 12 months.
The Act brought together a number of reviews and reports, including one from the Acting Ombudsman’s report on Operation Prospect, which examined allegations into police behaviour and applications for and the use of listening devises.
The legislation sets up a framework for the use of surveillance devices in criminal investigations and requires specific details to be supplied by applicants for warrants.
A statutory Surveillance Devices Commissioner is part of the new regime, who will be required to review all applications for warrants and assess them against the factors judicial officers have to take into account. Speakman told estimates that the primary reason for the delay in implementing the legislation has been finding someone for the commissioner’s job.
The commissioner will have to “remedy deficiencies in applications before they are lodged” and receive reports from applicants about how the warrants were used.
The legislation is sensible, yet it seems the more sensible it is the slower the desire to implement it.
A mandatory reporting scheme for data breaches is another contentious area.
The shadow attorney general Paul Lynch proposed a Bill in June to make it compulsory for public sector agencies in NSW to report to the Privacy Commissioner when there has been a serious breach of personal privacy.
This is the Privacy and Personal Information Protection Amendment (Notification of Serious Violations of Privacy by Public Sector Agencies) Bill 2019.
Lynch also introduced much the same Bill in the previous parliament (in 2017) and the government opposed it. Now the government is calling for feedback on a discussion paper dealing with mandatory notifications on data breaches.
Paul Lynch’s Bill was partly motivated by the data breach concerning MPs’ use of a secret hotline to made representations to the Department of Revenue to waive or delay payment of speeding fines.
The then leader of the ALP Michael Daley was found to have made representations in relation to a ticket when his wife was behind the wheel of his speeding motor.