Victorian Industry Participation Policy (Local Jobs First) Amendment Bill 2018
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 Victorian Industry Participation Policy (Local Jobs First) Amendment Bill 2018 (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.
The purposes of the Bill are to: establish the office of a Local Jobs First Commissioner; provide for the development and implementation of a Local Jobs First Policy (the Policy); provide for compliance with and enforcement of the Policy; and require reports to Parliament on the implementation of, and compliance with, the Policy. The Bill does this by making relevant amendments to the Victorian Industry Participation Policy Act 2003 (renamed the Local Jobs First Act 2003) (the Act).
These amendments primarily apply to corporations, rather than individuals. However, to the extent that they may apply to individual persons, I discuss the relevant human rights issues below.
Human Rights Issues
Right to privacy and freedom of expression
Section 13(a) of the Charter provides that a person has the right not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with. An interference with privacy will not be ‘unlawful’ where it is permitted by a law which is precise and appropriately circumscribed. Interferences with privacy will not be ‘arbitrary’ provided they are reasonable in the particular circumstances, and just and proportionate to the legitimate end they seek to achieve. Section 13(b) of the Charter further provides that a person has the right not to have their reputation unlawfully attacked.
Section 15 of the Charter protects a person’s right to freedom of expression, which has been interpreted to include a right not to impart information.
A number of provisions in the Bill are relevant to the right to privacy; however, for the reasons set out below, in my view none of these provisions amount to a limitation on the right as protected by the Charter. Some of these provisions are also relevant to the right to freedom of expression; however, to the extent that these provisions may amount to a limitation on this right, I consider any such limitation to be reasonable and justified in all the circumstances.
Requirements to provide information
Clause 18 of the Bill inserts new Part 4 into the Act, within which new section 24 provides that the Commissioner may require a person, by written notice (Information Notice) to provide the Commissioner with specified information and documents if the Commissioner believes on reasonable grounds that the person has information or documents that are relevant to the operation of the Policy or a local industry development plan submitted by the person. New section 26 provides that the Commissioner may issue a notice to comply (Compliance Notice) for failure to comply with an Information Notice. Failure to comply with a Compliance Notice attracts various potential consequences, which are discussed separately below.
While statutory compulsion of information may in some circumstances interfere with the right to privacy, in my view the requirement to comply with an Information Notice does not amount to a limit on this right as protected by the Charter. First, it is unlikely that the information required will be of a personal nature.
Second, the requirement only applies to information of relevance to the operation of the Policy or a plan submitted by the person, and a person is only obliged to comply to the extent that they are capable (new section 24(4)). It is vital that the Commissioner be empowered to require such information in order to monitor the operation of and compliance with the Policy and relevant plans, which is crucial to the integrity and success of the Policy and the public objectives it seeks to achieve (which are fundamentally about improving local economic and jobs growth).
Third, as the Policy relates only to persons involved in government contracts and high value construction projects, the power to require information of relevance to the Policy ought to be expected by those participating in relevant projects, is necessarily confined, and serves a proper purpose. I therefore consider any interference with the right to privacy to be lawful and not arbitrary.
For these same reasons, I consider any limitation on the right to freedom of expression occasioned by these provisions to be reasonable and justified and therefore compatible with section 15 of the Charter. The provisions compelling the provision of information and documents are necessary to enable appropriate oversight and monitoring of compliance with the Policy and are proportionate to that objective.
Information sharing and publication
New section 23 of the Act, inserted by clause 18, provides that the Commissioner may require an agency to conduct an audit in relation to compliance by a person with a local industry development plan submitted by that person, and provide to the Commissioner a report on the audit.
New section 28(3)(b) of the Act provides that if the Commissioner determines that a person has failed to comply with an Information Notice, or has contravened the Policy or a local industry development plan, the Commissioner may, amongst other things, advise the Minister and relevant agency of the person’s name and the details of the conduct. Clause 17 of the Bill inserts new section 10(2A) into the Act to provide that the Minister must include this information in the Minister’s annual reports to Parliament about the implementation of the Policy.
Clauses 17 and 18 of the Bill therefore permit the sharing and, in some cases, publication of individual details in a manner that may interfere with personal privacy and reputation.
However, the circumstances in which this is permitted are sufficiently clear, prescribed and proportionate to their objectives such that any interference will be lawful and not arbitrary.
The provisions requiring agencies to conduct and report on relevant persons’ compliance with local industry development plans is crucial to the Commissioner’s monitoring and enforcement functions. Further, the provisions enabling the Commissioner to advise the Minister and relevant agencies of non-compliance are only enlivened in circumstances where the Commissioner has issued a Compliance Notice which has either not been responded to within the specified 14 days, or has been responded to but not complied with subsequent to confirmation of the Notice by the Commissioner, and the Commissioner has then determined that the person has failed to comply with an Information Notice, or has contravened the Policy or a local industry development plan.
In my view, it is appropriate that the Commissioner has the power to provide the details of relevant persons and their conduct to the Minister in these circumstances, and for the Minister to table such information in Parliament. This serves the purpose of promoting accountability for persons who choose to contract with government agencies, and transparency as to non-compliance. In circumstances where there is much public interest in local economic growth and job creation, accountability and transparency in this space is crucial.
Adverse Publicity Notices
New section 28(3)(a) of the Act, inserted by clause 18 of the Bill, provides that if the Commissioner determines that a person has failed to comply with an Information Notice, or has contravened the Policy or a local industry development plan, the Commissioner may, amongst other things, recommend the Minister issue an Adverse Publicity Notice, naming the person and setting out the details of their conduct. New section 28(3) also provides that the Commissioner must also provide the person with written notice of their recommendation that the Minister issue an Adverse Publicity Notice. Section 29(4) provides the person seven days to respond to the Commissioner’s recommendation.
These provisions may give rise to the identification of individuals and thereby impact negatively upon the reputation of those individuals. However, for similar reasons as set out above with respect to information sharing, I consider that any interference with the right to privacy and reputation resulting from these provisions will be neither unlawful nor arbitrary.
The Bill clearly sets out the circumstances in which the provisions may operate. An Adverse Publicity Notice will not be issued lightly. As set out above, these provisions are only enlivened in circumstances where the Minister is satisfied of a failure to comply or has been advised by the Commissioner, who has issued a Compliance Notice which has either not been responded to within the specified period, or has been responded to but not complied with subsequent to confirmation of the Notice by the Commissioner, and the Commissioner has then determined that the person has failed to comply with an Information Notice, or has contravened the Policy or a local industry development plan. The person then has a further seven days’ period to respond to the Commissioner on their recommendation that an Adverse Publicity Notice be issued. In my view, it is appropriate that there is a power to name persons and detail their conduct by way of Adverse Publicity Notices as it serves the purposes of promoting accountability and transparency as to non-compliance with requirements that reflect important public policy.
Finally, I again note that these provisions will primarily apply to corporations, rather than individuals, and that any individuals who are effected by the provisions will have voluntarily chosen to tender for and enter into contracts to which these obligations and consequences for non-compliance apply. Any expectations as to privacy and reputation in this context must therefore be considered minimal.