Page 3773 - Week 11 - Thursday, 24 November 2022
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commissioner may immediately place a temporary suspension on a security licence if it is in the public interest.
The suspension automatically lifts after 30 days unless an ACAT order has come into effect or the tribunal has already decided not to make the order. This means a security industry professional who was suspended because the commissioner held the belief that they posed a safety risk can return to work after 30 days because their occupational disciplinary matter has not been considered.
To reduce this public safety risk, the bill extends the suspension period from 30 days to 60 days to provide enough time for the ACAT to grant interim or final orders for an occupational disciplinary matter. The amendment also explicitly confirms that the ACAT is empowered to further suspend a licence.
It is worth noting that the legislation has certain safeguards in place to reduce the risk of the commissioner suspending a licence for a period that ACAT would not have deemed appropriate. For example, under the act, decisions by the commissioner are reviewable by the ACAT. Additionally, the ACAT can make an interim order if it is satisfied that, if an order was not made, the party applying for the order would be disadvantaged or suffer harm.
While these provisions may engage and limit the right to work, in the Human Rights Act, I consider the amendment to be the least restrictive approach to achieving the public safety objective and note that it is balanced by protections for licensees subject to a suspension.
This JACS bill amends section 69 of the Evidence (Miscellaneous Provisions) Act 1991, which relates to the giving of evidence in sexual, violent and family violence proceedings. This amendment rectifies an anomaly in the act, which the Director of Public Prosecutions has drawn to the attention of the government as a systemic concern after being identified in four matters.
Currently, where a witness provides evidence via an audio-visual link, or AVL, their evidence is recorded and is admissible as the witness’s evidence in a related proceeding, such as a retrial. However, a witness who provides evidence in a courtroom cannot have a recording of their evidence admitted in a related proceeding.
The current provisions of the act are included in legislation in recognition of how difficult it can be for people to recount in detail, and be questioned about, matters that have caused them great distress. Being able to provide evidence remotely reduces unnecessary contact between a witness and an accused person, and recording the evidence means they will not have to repeat that experience unnecessarily.
Importantly, the provisions do not diminish the rights of the accused person to cross-examine the witness—a fundamental right in any fair justice system. The recording of any evidence would include the cross-examination at the time. The provisions also importantly allow for all or part of the recording to be excluded and for further questions to be asked where it is necessary and appropriate to do so. All of the important safeguarding elements of the present legislation will continue to apply to recordings affected by this amendment.
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