REPORTS TO PARLIAMENT · Reports to Parliament Alert Digest Nos. 1 to 8 of 1998 Bibliography ISBN 0...

SCRUTINY OF ACTS AND REGULATIONS COMMITTEE

The 53rd Parliament

REPORTS TO PARLIAMENT

ALERT DIGESTS Nos 1 to 8 of 1998

March to November 1998

I i


The 53rd Parliament REPORTS TO PARLIAMENT

ALERT DIGESTS Nos. 1 to 8 of 1998

March to November 1998

Ordered to be Printed

By Authority. Government Printer for the State of Victoria

December 1998

No 46 Session 1998

Scrutiny of Acts and Regulations Cummittee

ii

Parliament of Victoria, Australia

Scrutiny of Acts and Regulations Committee

Reports to Parliament Alert Digest Nos. 1 to 8 of 1998

Bibliography ISBN 0 7311 3024 3 ISSN 1440.2947

EXTRACTED FROM lHE MINUTES OF 1HE PROCEEDINGS OF 1HE

LEGISLATIVE COUNCIL

TUESDAY 14 MAY 1996

22. SCRUTINY OF ACIS AND REGULATIONS COMMITTEE- The Honourable R.l. Knowles

moved, by leave, That the Honourables P.A. Katsambanis, M.T. Luckins and D.A. Nardella

be members of the Scrutiny of Acts and Regulations Committee.

Question - put and resolved in the affirmative.

EXTRACTED FROM lHE VOTES AND PROCEEDINGS OF 1HE

LEGISLATIVE ASSEMBLY

TUESDAY 14 MAY 1996

19. APPOINTMENT OF COMMITTEES Motion made, by leave, and question That

(h) Mr Cameron, Mr Carli, Ms Gillett-Douglas, Mr Plowman (Benambera),

Mr Ryan, and Mr Thompson, be members of the Scrutiny of Acts and Regulations

Committee.

(Mr Gude) -put and agreed to.

* Ms Gillett-Douglas is now known as Ms Gillett.

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iv

TABLE OF CONTENTS

Table of Contents--------------------- v

Members and Staff ---------------------·A

Terms of Reference _____________________ xi

Alert Digest No. 1 of 1998

Arts Acts (Statute Law Revision) Bill ______________ 3

Valuation of Land (Amendment) Bill 3

Fire and Emergency Services Acts (Amendment) 3

Firearms (Amendment) Bill 4

Health Acts (Statute Law Revision) Bill 6

Retail Tenancies Reform Bill 6

Tertiary Education (Amendment) Bill 7

Financial Management (Amendment) Bill 8

Public Prosecutions (Amendment) Bill 8

Geographic Place Names Bill 9

Summary Offences (Amendment) Bill 1 0

Education (Teachers) 10

Trans-Tasman Mutual Recognition (Victoria) Bill 12


Gaming No. 2 (Amendment) Bill ______________ 15

Health Services (Amendment) 15

Electricity Safety Bill 15

Electricity Industry (Amendment) Bill 17

Sea-Carriage Documents Bill 17

Crimes (Family Violence)(Amendment) Bill 18

Evidence (Confidential Communications) Bill 18

Property Law (Amendment) Bill 19

State Trustees (Amendment) Bill 19

Transport Acts (Amendment) 20

V


Building (Amendment) Bill ________________ 21

Credit (Amendment) 22

Drugs, Poisons and Controlled Substances (Amendment) Bill 23


Land (Revocation of Reservations) Bill 27

Transport Accident {Amendment) Bill 27

Victorian Plantations Corporation (Amendment) Bill 29

Local Government (Darebin City Council) Bill 29

Road Safety (Driving Instructors) Bill 30

Heritage Rivers (Amendment) Bill 30

Victorian Civil and Administrative Tribunal 31

Business Licensing Authority 32

Tribunals and Licensing Authorities (Miscellaneous Amendments) Bill 33

Classification (Publications, Films and Computer Games)(Enforcement) (Amendment) 37

Dried Fruits (Repeal) Bill 37

St George Bank and Advance Bank Australia Bill 38

Gas Pipelines Access (Victoria) Bill 38

Printers and Newspapers (Repeal) Bill 41

Education (Self-Governing Schools) Bill 41

Agriculture Acts (Amendment) Bill 42

Gaming Acts (Amendment) Bill 43


Appropriation (Parliament 1998/99) 47

Appropriation (1998/99) 47

Road Safety (Amendment) Bill ---------------47

Ambulance Services (Amendment) Bill 51

Melbourne and Olympic Parks (Amendment) Bill 52

International Transfer of Prisoners (Victoria) Bill 53

Parks Victoria Bill 55

Fundraising Appeals Bill 56

Land Tax (Amendment) 59

Catchment and Land Protection (Amendment) Bill 60

Rail Corporations (Amendment) Bill 61

National Parks (Amendment) Bill 63

Public Correctional Services Authority 63

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Table of Contents

State Taxation (Amendment) Bill _______________ 65

Local Government (Amendment) 67

Physiotherapists Registration Bill 69

Gas Industry (Amendment) Bill 72

Miscellaneous Acts (Omnibus No. 1) Bill 74

Public Sector Management and Employment Bill 80

Public Sector Reform (Miscellaneous Amendments) Bill 83

Melbourne City Link (Exhibition Street Extension) Bill 84

Transport Accident (Amendment) Bill 88

Gas Pipelines Access (Victoria) Bill 89

Electricity Safety Bill 92

Extract from the Proceedings

Public Sector Management and Employment Bill---------94


Livestock Disease Control (Amendment) Bill ___________ 97

Transfer of Land (Single Register) Bill 98

International Transfer of Prisoners (Victoria) Bill 99

Melbourne and Olympic Parks (Amendment) Bill 99

State Taxation (Amendment) Bill 101

Catchment and Land Protection (Amendment) Bill 1 02


Arts Acts (Amendment) Bill 1 07

Conservation, Forests and Lands (Miscellaneous Amendments) Bill 107

Consumer Credit (Finance Brokers) Bill 1 09

Health Services (Further Amendment) Bill 110

Land (Further Revocation of Reservations) 115

Legal Practice (Amendment) Bill 116

Mutual Recognition (Victoria) 119

Petroleum Bill 121

Planning and Environment (Amendment) Bill 123

Victorian College of the Arts (Amendment) Bill 124

Victorian Institute of Marine Sciences (Repeal) 125


Accident Compensation {Amendment) Bill ___________ 129

Appeal Costs Bill 131

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Bail (Amendment) Bill _________________ 133

Building (Plumbing) Bill 134

Crimes (Amendment) 135

Education (Amendment) Bill 138

Liquor Control Reform Bill 140

Local Government (Governance and Melton) Bill 144

MacKillop Family Services Bill 146

Melbourne Cricket Ground (Amendment) Bill 147

Patriotic Funds (Amendment) Bill 148

Road Safety (Further Amendment) Bill 149

Superannuation Acts (Amendment) Bill 150

Trade Measurement (Administration)(Amendment) Bill 152

Transport (Amendment) 153


Chattel Securities (Amendment) Bill ------------- 157

Crimes, Confiscation and Evidence Acts (Amendment) Bill 158

Electricity Industry Acts (Amendment) Bill 161

Gaming Acts (Further Amendment) Bill 162

Gas Industry Acts (Amendment) Bill 163

Land Titles Validation (Amendment) Bill 169

Legal Aid (Amendment) Bill 177

Licensing and Tribunal {Amendment) Bill 180

Local Government (Nillumbik Shire Council) Bill 184

Melbourne City Link (Amendment) Bill 185

Racing and Betting Acts (Amendment) Bill 187

Rail Corporations (Further Amendment) Bill 188

State Taxation (Further Amendment) Bill 191

Consumer Credit (Finance Brokers) Bill 196

Mutual Recognition (Victoria) 198

Health Services (Further Amendment) Bill 199

Petroleum Bill 199

Appendix 1 -Index of Bills Reported -------------201

Appendix 2- History in Brief: Land Titles Validation (Amendment) Bill __ 205

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Members

Staff

SCRUTINY OF ACTS AND

REGULATIONS COMMITTEE

Mr P. J. Ryan MLA (Chairman)

Mr M. H. Thompson MLA (Deputy Chairman)

Mr R. G. Cameron MLA

Mr C. Carli MLA

Ms M. }. Gillett MLA

The Hon. P.A. Katsambanis MLC

The Hon. M. T. Luckins MLC

The Hon. D. A. Nardella MLC

Mr A. Plowman MLA

Mr Andrew Homer Senior Legal Adviser

Ms Tanya Coleman Legal Officer

Ms Nadia Krivetz Legal Officer

Mr Simon Dinsbergs Assistant Executive Officer

Mr Richard Kings Office Manager

Committee's Address Level8,35 Spring Street MELBOURNE 3000

Telephone Inquiries (03) 9651 3618

Facsimile (03) 96513674

E-Mail [email protected] (Andrew Homer) subleg@parliament. vic.gov.au (Tanya Coleman)

Internet Home Page http://www.parliament.vic.gov.au/sarc

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X

TERMS OF REFERENCE

The statutory functions of the Scrutiny of Acts and Regulations Committee as

set out in section 4D of the Parliamentary Committees Act 1968 are:

(a) to consider any Bill introduced into a House of the Parliament and to report to the

Parliament as to whether the Bill, by express words or otherwise -

(i) trespasses unduly upon rights or freedoms; or

(ii) makes rights, freedoms or obligations dependent upon insufficiently

defined administrative powers; or

(iii) makes rights, freedoms or obligations dependent upon non-reviewable

administrative decisions; or

(iv) inappropriately delegates legislative power; or

(v) insufficiently subjects the exercise of legislative power to parliamentary

scrutiny; and

(b) to consider any Bill introduced into a House of the Parliament and to report to the

Parliament

(i) as to whether the Bill by express words or otherwise repeals, alters or

varies section 85 of the Constitution Act 1975, or raises an issue as to the

jurisdiction of the Supreme Court;

(ii) where a Bill repeals, alters or varies section 85 of the Constitution Act

1975, whether this is in all the circumstances appropriate and desirable;

or

(iii) where a Bill does not repeal, alter or vary section 85 of the Constitution

Act 1975, but where an issue is raised as to the jurisdiction of the

Supreme Court, as to the full implications of that issue; and

(c) such functions as are conferred on the Committee by the Subordinate Legislation

Act 1962; and

(ea) such functions as are conferred on the Committee by the Environment Protection

Act 1970; and

(d) to review any Act where required so to do by or under this Act, in accordance

with terms of reference under which the Act is referred to the Committee.

xi


ALERT DIGEST NO. 1 OF 1998

on the

Arts Acts (Statute Law Revision) Bill Valuation of Land (Amendment) Bill Fire and Emergency Services Acts (Amendment) Bill Firearms (Amendment) Bill Health Acts (Statute Law Revision) Bill Retail Tenandes Reform Bill Tertiary Education (Amendment) Bill Finandal Management (Amendment) Bill Public Prosecutions (Amendment) Bill Geographic Place Names Bill Summary Offences (Amendment) Bill Education (Teachers) Bill Trans-Tasman MutuaJ Recognition (Victoria) Bill

Tuesday, 17 March 1998

1


The Committee has considered the following Bills:-

Arts Acts (Statute Law Revision) Bill Education (Teachers) Bill Financial Management (Amendment) Bill Fire and Emergency Services Acts (Amendment) Bill Firearms (Amendment) Bill Geographic Place Names Bill Health Acts (Statute Law Revision) Bill Public Prosecutions (Amendment) Bill Retail Tenancies Reform Bill Summary Offences (Amendment) Bill Tertiary Education (Amendment) Bill Trans-Tasman Mutual Recognition (Victoria) Bill Valuation of Land (Amendment) Bill

The Committee reports on the following Bills:-

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Arts Acts (Statute Law Revision) Bill Education (Teachers) Bill Financial Management (Amendment) Bill Fire and Emergency Services Acts (Amendment) Bill Firearms (Amendment) Bill Geographic Place Names Bill Health Acts (Statute Law Revision) Bill Public Prosecutions (Amendment) Bill Retail Tenancies Reform Bill Summary Offences (Amendment) Bill Tertiary Education (Amendment) Bill Trans-Tasman Mutual Recognition (Victoria) Bill Valuation of Land (Amendment) Bill


Arts Acts (Statute Law Revision) Bill

1.1

This Bill was introduced into the Legislative Assembly on 17 February 1998 by the Honourable Phil Gude MP with the Honourable Bill McGrath MP.

1.2

The Bill repeals two redundant sections of the Libraries Act 1988 and makes minor grammatical amendments to the National Gallery of Victoria Act 1966 and the Victorian Arts Centre Act 1979.

The Committee makes no further comment.

Valuation of Land (Amendment) Bill

2.1

This Bill was introduced into the Legislative Assembly on 18 February 1998 by the Honourable Phil Honeywood MP with the Honourable Tom Reynolds MP.

2.2

The purpose of the Bill is to amend the Valuation of Land Act 1960 to provide for municipal councils to make biennial valuations of land.

The Committee makes no further comment

Fire and Emergency Services Acts (Amendment) Bill

3.1

This Bill was introduced into the Legislative Assembly on 18 February 1998 by the Honourable Bill McGrath MP with the Honourable Jan Wade MP.

3.2

The purposes of the Bill are to:-

• allow industry brigades to join or form groups of brigades;

• allow industry brigades to be represented on Fire Prevention Committees;

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• to amend the Victoria State Emergency Service Act 1987 to require a controller or member or probationary member of the Service to produce medical evidence to satisfy the Director of their fitness;

• to make statute law revision changes.

3.3

Clause 5 provides for industry brigade groups to be represented on regional fire prevention committees. Clause 8 is a statute law revision amendment which has a retrospective effect. The Committee notes the comments in the Second Reading Speech:-

3.4

The Fire Authorities (Contributions) Act 1989 sought to amend the provision relating to road accident rescue costs which were to be borne by the Transport Accident Commission. An incorrect reference was included in that Act, and should now be remedied. The effect will be to allow these costs to be charged to the user of the service which will include both the Transport Accident Commission and the Accident Compensation Commission. It is proposed further that this amendment should operate retrospectively from the date on which it was intended to take effect, namely the fifth of December 1989.

Clause 10 gives the Director the power to suspend or cancel the registration of membership of a unit controller, member or probationary member if he or she fails to provide satisfactory evidence of fitness after the Director has requested that evidence.


Firearms (Amendment) Bill

4.1

This Bill was introduced into the Legislative Assembly on 18 February 1998 by the Honourable Bill McGrath MP with the Honourable Jan Wade MP.

4.2

The purpose of the Bill is to amend the Firearms Act 1996.

4.3

Clause 4 amends various definitions. Clause 5 amends section 10 to provide for the prescription of additional reasons for applying for a category A or B longarm licence. Clause 6 amends section 11 to provide for the prescription of additional reasons for applying for a category C longarm licence. Oause 10 amends section 17 by requiring the Chief Commissioner to ensure that a longarm or handgun licence is not issued unless it is not against the public interest. Clause 12 amends section 12 to ensure that a junior licence is not issued unless it is not against the public interest. Oause 22 inserts new Division 6 in Part 3 to provide for the hiring and lending of firearms by licensed

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firearms dealers for film, television and theatrical purposes or for the purposes of an historical re-enactment. Clause 25 amends section 107 to require a 28 day waiting period for the issue of a permit to acquire a firearm where a person is acquiring their first firearm and to ensure in any other case that the permit is not issued until sufficient time has expired to allow the Chief Commissioner to consider the application properly. The Committee notes the comments in the Second Reading Speech:-

4.4

The National Firearms Agreement required that there be a 28 day waiting period on the purchase of firearms to ensure that there is sufficient time for police checks on applicants. This is an important pravision in the National Agreement. At the same time, I recognise that it is causing great inconvenience to firearms users and dealers. My principal concern in this matter is to ensure that someone without a firearm cannot buy one on the spur of the moment.

For people who already have a firearm and have not come to the attention of police, I am not convinced that they should have to wait 28 days in all cases to purchase another. The Bill provides that, where a person already has a firearm, the Chief Commissioner has the discretion to reduce the waiting period.

I trust that the Chief Commissioner will implement this pravision in good faith and ensure that permits to purchase second and subsequent firearms are issued in good time. I also trust that people wishing to purchase firearms will understand that there are requirements in the Act that they will have to satisfy. These requirements cannot simply be put aside and they take time to administer.

Clause 30 makes it an offence for a firearms dealer licence holder to not securely store ammunition when the ammunition is not being carried or used. Oause 32 amends section 130 to provide the Chief Commissioner with the authority to allow persons to carry a loaded firearm and use a firearm in a town or populous place if it is consistent with the reason for which the licence was issued or if there is a significant public benefit to be obtained or if it is for the purposes of public safety. The Committee notes the comments in the Second Reading Speech:-

The Firearms Act rightly makes it an offence to carry a loaded firearm or use a firearm in a town or populous place. There are, however, a number of occasions where this presents great difficulty. A number of my parliamentary colleagues in the Warrnambool and Hamilton areas will tell of the considerable damage large flocks of corellas and galahs have done in recent months to golf courses; both to the greens and to general foliage. This has amounted to tlwusands of dollars in damages.

In these cases it is simply a matter of public benefit that the Chief Commissioner be able to permit a licensed person to use a firearm to scare off the flock. The Bill enables the Chief Commissioner to allow a person to use a firearm inside a town perimeter in these kinds of cases where there is a significant public benefit or a significant public safety outcome and, where required, the shooter has the requisite permits issued by the Department of Natural Resources and Environment.

Clause 34 creates an offence for a person who knowingly makes a false or misleading statement. Clause 39 amends section 189 to allow persons who come under paragraph (d) of the definition of prohibitive person to apply to the court to be deemed not to be prohibited persons. Clause 40 amends schedule 2 to clarify the licence conditions

5

Scrutiny of Acts and Reguln.tions Committee

applying to persons using black powder ball firing cannon. Clause 41 amends Schedule 3 to exempt persons of or over the age of 12 years and under the age of 18 years from licensing requirements where they carry and use handguns and category A, B longarms at approved shooting ranges by or under the immediate supervision of an appropriately licensed adult, for the purposes of receiving instruction. amends Schedule 4 to provide specific firearms storage standards for licensed firearms collectors. It also clarifies minimum weight for storage safes and storage standards for firearms heirloom licences.


Health Acts (Statute Law Revision) Bill

5.1

This Bill was introduced into the Legislative Council on 17 February 1998 by the Honourable Mark Birrell MLC.

5.2

The Bill makes statute law revision amendments to several Acts administered by the Minister for Health.


Retail Tenancies Reform Bill

6.1

This Bill was introduced into the Legislative Assembly on 18 February 1998 by the Honourable Tom Reynolds MP with the Honourable Phil Honeywood MP.

6.2

The purpose of the Bill is to reform the law relating to retail tenancies.

6.3 Part2

Part 2 provides for retail premises leases. Clause 8 makes provision for disclosure statements. Pursuant to clause 9 the tenant is required to give to a prospective landlord a business plan. Oause 12 makes provision for rent review. Clause 16 imposes a six month requirement of the landlord's intention with respect to the renewal of a lease. Clause 21 governs the apportionment of operating expenses. Oause 26 sets out the compensation payable by the landlord where there is interference with the flow of customers in respect of retail premises because of works or other matters. governs the relocation of a tenant.

6


6.4 Parts 3, 4, 5 and 6

Part 3 provides for the conciliation and arbitration of disputes. Part 4 provides for disclosure statements under franchise arrangements. Part 5 contains general provisions. Oause 49 is the regulation making provision. Part 6 contains consequential amendments and transitional provisions.

6.5 Alteration or variation of section 85 of the Constitution Act 1975 (Section 4d(b)(i) and (ii) of the Parliamentary Committees Act 1968)

Oause 48 declares the intention of sections 35(3) and 42 to alter or vary section 85 of the Constitution Act 1975.

Section 35 (3)

Section 35(3) provides that subject to Part V of the Commercial Arbitration Act 1984, any dispute under the R£tnil Tenancies Refonn Act 1998 is not justiciable in any court or tribunal. The Committee notes the comments in the Second Reading Speech:-

The reasons for limiting the jurisdiction of the Supreme Court in these circumstances are as follows; firstly, in relation to limiting the court's jurisdiction under clause 35(3), the intention has been to avoid costly and time consuming litigation in respect of a wide range of matters that are readily amenable to non-judicial determination.

The Committee is of the view that the proposed section 85 provision is appropriate and desirable in all the circumstances.

Section 42

Section 42 gives personal immunity to members of any pane1s acting in good faith as conciliators and arbitrators. The Committee notes the comments in the Second Reading Speech:-

Secondly, in relation to the immunity provision in clause 42, it is not uncommon for a member of a tribunal or similar body to be afforded a measure of protection from legal proceedings in order to allow them to perform their duties properly and with confidence. Clearly defining the liability of panel members will enable them to act impartially without fear of prosecution knowing that their actions are supported by conventional guarantees against personal liability. This immunity is extended to all panel members, whether acting in the capacity of conciliator or arbitrator.

The Committ£e is of the view that the proposed section 85 provision is appropriate and desirable in all the circumstances.

Tertiary Education (Amendment) Bill

7.1

This Bill was introduced into the Legislative Assembly on 25 February 1998 by the Honourable Phil Honeywood MP with the Honourable Tom Reynolds MP.

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7.2

The purpose of the Bill is to extend the application of the requirement to provide information to the Minister for the purpose of planning and co-ordinating higher education.


Financial Management (Amendment) Bill

8.1

This Bill was introduced into the Legislative Assembly on 25 February 1998 by the Honourable Jeff Kennett MP with the Honourable Phll Gude MP.

8.2

The main purpose of the Bill is to amend the Financial Management Act 1994 with respect to accrual output budgeting.

8.3

Clause 6 substitutes a new section 13 which requires the Minister to ensure that a public ledger is maintained. amends section 25 to broaden the reporting requirements in the Annual Financial Statement. Clause 10 amends sections 28 and 29 to reflect the adoption of accrual output budgeting and appropriation. Clause 11 substitutes new sections 30 to 36 to enable transfer between items of departmental and Parliamentary appropriation. Clause 13 inserts a new section 44A which requires the accountable officer of a public body to provide any financial information requested by a relevant Minister or the Minister administering the section. Clause 15 amends section 59 to ensure that the regulation making power extends to money in a Trust Account in the Trust Fund that is established by or under another Act. Clause 17 is a transitional provision.


Public Prosecutions (Amendment) Bill

9.1

This Bill was introduced into the Legislative Assembly on 25 February 1998 by the Honourable Jan Wade MP with the Honourable Tom Reynolds MP.

9.2

The main purpose of the Bill is to amend the Public Prosecutions Act 1994 so as to enable the Director of Public Prosecutions:-

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(a) to delegate his or her power to enter a nolle prosequi in criminal proceedings or consent to the commencement of certain criminal proceedings or act as a member of a Director's Committee;

(b) to indemnify a witness against prosecution in certain circumstances or give an undertaking to a witness that evidence given in a specified proceeding will not be used against him or her in a criminal proceeding;

(c) to take over and conduct certain proceedings in respect of indictable offences;

(d) to institute or be a party to certain civil proceedings.

9.3

Clause 4 enables the Director of Public Prosecutions (DPP) to take over and conduct any summary or indictable proceedings other than private prosecutions brought under the grand jury procedure provided for by section 354 of the Crimes Act 1958. Clause 5 gives the DPP the power to institute, prepare and conduct or be a party to proceedings which are civil in nature. Clause 6 gives the DPP the power to grant an indemnity from prosecution. Clause 7 provides that the DPP and the Orief Crown Prosecutor can delegate their functions and powers for a period of two weeks to specified persons in the event of illness or an emergency. Clause 8 provides that the DPP may delegate his or her powers to enter certain nolle prosequis to consent to the bringing of certain proceedings.


Geographic Place Names Bill

10.1

This Bill was introduced into the Legislative Assembly on 25 February 1998 by the Honourable Marie Tehan MP with the Honourable Pat McNamara MP.

10.2

The purpose of the Bill is to make provision for the naming of places and the registration of place names and to amend the Survey Co-ordination Act 1958 and the Local Government Act 1989.

10.3

Clause 5 provides that the Governor in Council on the recommendation of the Minister by Order published in the Government Gazette may make guidelines relating to the procedures for the naming of places. Clause 7 provides for the appointment of a Registrar of Geographic Names. Clause 9 establishes a Register of Geographic Names.

Clause 14 provides that the Minister may maintain a panel of persons for appointment as members of Committees. Clause 17 deals with pecuniary interests. Clause 19 is the

9


regulation making provision. Clauses 20 to 24 are transitional provisions and also contain consequential amendments.


Summary Offences {Amendment) Bill

11.1

This Bill was introduced into the Legislative Assembly on 25 February 1998 by the Honourable Jan Wade MP with the Honourable Phil Gude MP.

11.2

The purpose of the Bill is to amend the Summary Offences Act 1966 with respect to habitual drunkenness and making a false report to police.

11.3

Clause 4 repeals the penalties for habitual drunkenness. Clause 5 makes various amendments with respect to the making of false reports to police including:-

• raising the maximum penalty;

• allowing the court to order reimbursement of expenses incurred by the State irrespective of whether a conviction has been recorded;

• providing that the court may make instalment orders for the reimbursement of expenses.


Education {Teachers) Bill

12.1

This Bill was introduced into the Legislative Assembly on 25 February 1998 by the Honourable Phil Gude MP with the Honourable Jan Wade MP.

12.2

The main purpose of the Bill is to amend the Education Act 1958 to provide for the disqualification from teaching of teachers found guilty of sexual offences involving children.

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12.3

Clause 3 inserts a definition of sexual offence in section 35 of the Act dealing with sexual offences against or involving children. Clause 5 inserts new section 41A which provides for automatic disqualification from teaching if a person is convicted or found guilty of a sexual offence. Clause 6 amends section 43 to provide that the Registered Schools Board may cancel the registration of a school if the employing authority of the school employs as a teacher a person it knew was disqualified from teaching under section 41A. Clause 7 amends section 44 to make it an offence if a person disqualified from teaching under section 41A teaches any subject in a school.

12.4 Alteration or variation of section 85 of the Constitution Act 1975 (section 4D(b)(i) and (ii) of the Parliamentary Committees Act 1968

Clause 8 inserts new subsection (2) into section 81A to declare the intention of section 38 to alter or vary section 85 of the Constitution Act 1975. Oause 4 substitutes new section 38 to provide that disqualified teachers are not entitled to recover any amounts for services rendered as a teacher in a school in respect of any period during which the person:-

• was not a registered teacheri or

• had not obtained the express permission of the Board to teach in a schooli or

• was disqualified from teaching under section 41A(3).

The Committee notes the comments in the Second Reading Speech:-

Cb:zuse 8 of the Bill inserts a new section 81A(2) in the Education Act 1958 which states it is the intention of the proposed section 38 of that Act to alter or vary section 85 of the Constitution Act 1975. The proposed section 38 provides that a person is not entitled to reamer in a court of b:zw far services rendered during any period the person was an unregistered teacher, or did not have the permission of the Board to teach, or who was disqualified from teaching under section 41A(3). The reasons for altering or varying section 85 of the Constitution Act 1975 are as follows:-

• First, a person fitting any of the above categories should not be teaching any subject in a non government school, and he or she should not have any right to payment for services rendered in breach of what in essence is a disqualification.

• Secondly, the inability to sue far payment for services rendered as a teacher in breach of the disqualification is the same inability that presently applies under section 38 of the Education Act to deregistered teachers or teachers who do not have the permission of the Board to teach. Furthermore, it should also provide an incentive to disqualified teachers not to continue in employment as a teacher after the date of their conviction and disqualification.


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Trans-Tasman Mutual Recognition (Victoria) Bill

13.1

This Bill was introduced into the Legislative Assembly on 25 February 1998 by the Honourable Jeff Kennett MP with the Honourable Phil Gude MP.

13.2

The purpose of the Bill is to adopt the Trans-Tasman Mutual Recognition Act 1997 of the Commonwealth. The Committee notes the comments in the Second Reading Speech:-

The Bill is a direct result of the T rans-T asman Mutual Recognition arrangement signed by all Australian Heads of Government at the meeting of the Council of Australian Governments held on 14 June 1996 and signed by the Prime Minister of New Zealo.nd on 9 July 1996. The intention of the arrangement is to extend the mutual recognition principle to New Zealo.nd. The arrangement and the Bill have their basis in the mutual recognition agreement established by the Commonwealth and the Australian States and Territories in 1992. Tiuzt agreement and the Commonwealth Act which gave effect to it (the Mutual Recognition Act 1992) removed regulo.tory barriers to the movement of goods and service providers between the Australian jurisdictions. The arrangement extends the mutual recognition principle to New Zealo.nd in relo.tion to New Zealo.nd goods and occupations.


Committee Room Tuesday 17 March 1998

12



Tuesday, 7 April1998

on the

Gaming No. 2 (Amendment) Bill Health Services (Amendment) Bill Electricity Safety Bill Electricity Industry (Amendment) Bill Sea-Carriage Documents Bill Crimes (Family Violence)(Amendment) Bill Evidence (Confidential Communications) Bill Property Law (Amendment) Bill State Trustees (Amendment) Bill Transport Acts (Amendment) Bill Building (Amendment) Bill Credit (Amendment) Bill Drugs, Poisons and Controlled Substances (Amendment) Bill

13



Building (Amendment) Bill Credit (Amendment) Bill Crimes (Family Violence)(Amendment) Bill Drugs, Poisons and Controlled Substances (Amendment) Bill Electricity Industry (Amendment) Bill Electricity Safety Bill Evidence (Confidential Communications) Bill Gaming No. 2 (Amendment) Bill Health Services (Amendment) Bill Property Law (Amendment) Bill Sea-Carriage Documents Bill State Trustees (Amendment) Bill Transport Acts (Amendment) Bill


14

Building (Amendment) Bill Credit (Amendment) Bill Crimes (Family Violence)(Amendment) Bill Drugs, Poisons and Controlled Substances (Amendment) Bill Electricity Industry (Amendment) Bill Electricity Safety Bill Evidence (Confidential Communications) Bill Gaming No. 2 (Amendment) Bill Health Services (Amendment) Bill Property Law (Amendment) Bill Sea-Carriage Documents Bill State Trustees (Amendment) Bill Transport Acts (Amendment) Bill


Gaming No. 2 (Amendment) Bill

1.1

This Bill was introduced into the Legislative Council on 17 March 1998 by the Honourable Roger Hallam MLC.

1.2

The Bill makes minor amendments to Gaming No. 2 Act 1997. Clause 3 allows the Director of Gaming and Betting to determine applications for trade promotion lottery permits, rather than the Victorian Casino Gaming Authority. The Committee notes the comments in the Second Reading Speech:-

The Authority currently determines in excess of 2500 permits applications per yeo.r. The Lotteries Gaming and Betting Act contains extremely broad powers of delegation, which allow the Authority to delegate the permit issuing function to the Director, and to other officers of the Authority . . . given the current and likely future increase of permit applications it is considered appropriate that the permit issuing function be transferred from the Authority to the Director. This will maintain existing administrative arrangements as the Director will be able to determine permit applications himself as well as delegating the determination of some permits to his officers. It will also provide an avenue of appeal to the Authority for an applicant refused a trade promotion lottery permit by the Director.


Health Services (Amendment) Bill

2.1

This Bill was introduced into the Legislative Council on 17 March 1998 by the Honourable Rob Knowles MLC.

2.2

The main purpose of the Bill is to amend the Health Services Act 1988 and the Health Services (Amendment) Act 1997 to increase penalties for certain offences.


Electricity Safety Bill

3.1


15


3.2

The purpose of the Bill is to make further provision relating to the safety of electricity supply and use and the efficiency of electrical equipment. The Committee also notes the comments in the Second Reading Speech:-

3.3

This Bill consolidates in one Act the electricity safety legislation previously contained in the Electricity Industry Act 1993, the Electric Light and Pawer Act 1958 and the State Electricity Commission Ad 1958.

Clause 6 establishes the Office of the Chief Electrical Inspector. Clause 11 is the delegation provision.

The Committee will write to the Minister in respect of the delegation provision.

Clause 19 requires the preparation of a corporate plan by the Office. Clause 28 requires the Office to keep a General Account. Division 1 of Part 3 provides for the registration of electrical contractors. Division 2 governs the licensing of electrical workers. Division 3 governs the installation of electrical work. Division 4 governs the installation of electric lines on public land. Clause 50 provides for the establishment of an Equipment Advisory Committee.

3.4 Electrical Appeals Board

Clause 69 establishes the Electrical Appeals Board. Part 7 makes provision for network operators and underground electric lines. Part 8 sets out those provisions which relate to electric line clearance. Clause 87 establishes an Electric Une Clearance Consultative Committee. Clause 91 establishes the Victorian Electrolysis Committee. Part 10 makes provision for electricity safety management schemes. Part 11 sets out the powers of enforcement officers. Clause 124 provides for emergency access on any land or premises if there is a threat to the safety of persons or property arising from a situation relating to electricity. provides that enforcement officers may apply to a magistrate for a search warrant. Part 12 contains general provisions. Part 13 contains the regulation making provisions.

Part 14 contains transitional provisions and consequential amendments. Clause 164 inserts a new Part 3A into the Electricity Industry Act 1993 which contains provisions which relate to the supply of electricity in an emergency. The Committee notes that new section 47E is a delegation clause.

The Committee will write to the Minister in respect of the delegation provision.


16


Electricity Industry (Amendment) Bill

4.1

This Bill was introduced into the Legislative Assembly on 18 March 1998 by the Honourable Alan Stockdale MP with the Honourable Phil Gude MP.

4.2

The Bill amends various Electridty Acts. Its main purpose is to provide for the dissolution of Power Net Victoria and to facilitate the reduction of certain amounts and imposts.

4.3

Clause 5 makes amendments to effect the abolition of Power Net Victoria. Clause 6 provides for an Order in Council published in the Government Gazette to facilitate a reduction in imposts. Clause 7 obviates the requirement to produce a certificate of title with a request for amendment of the Register in relation to transferred property that is a registered easement. Oause 10 corrects minor typographical errors. In relation to the Electricity Industry (Further Amendment) Act 1994 this is retrospective from 24 December 1994 pursuant to clause 2(2).


Sea·Carriage Documents Bill

5.1

This Bill was introduced into the Legislative Assembly on 18 March 1998 by the Honourable Jan Wade MP with the Honourable Phil Gude MP.

5.2

The purpose of the Bill is to reform the law relating to bills of lading, sea waybills and ship's delivery orders.

5.3

Clause 6 provides that the provisions of the Bill also apply to sea-carriage documents in electronic or computerised form. Clauses 8 and 9 sets out the rights of various parties under contracts of carriage. Clauses 10 and 11 sets out the liabilities of various parties under contracts of carriage. Clause 12 sets out the evidential effect of a bill of lading.


17

Scrutiny of Acts and R£gulations Committee

Crimes (Family Violence)(Amendment) Bill

6.1


6.2

The purpose of the Bill is to amend the Crimes (Family Violmce) Act 1987:-

• with respect to appeals and costs; and

• to make amendments of a statute law revision nature.

6.3

Clause 5 provides that an appeal under section 20 or section 21 may be brought in relation to the making or refusal to make an order which varies, revokes or extends an intervention order. Clause 7 makes statute law revision amendments which are retrospective from 29 April1997. They ensure that the "Chief Commissioner of Police" is substituted where appropriate for the "Registrar of the firearms appointed under section 50 of the Firearms Act 1958".


Evidence (Confidential Communications) Bill

7.1


7.2

The purpose of the Bill is to amend the Evidence Act 1958 so as to protect from disclosure in legal proceedings confidential communications between the victim or alleged victim of a sexual offence and a medical practitioner or counsellor. The Bill enables a court to order disclosure but specifies matters about which the court must be satisfied before doing so.

7.3

Clause 4 inserts new Division 2A into Part n of the Act relating to confidential communications. Clause 5 inserts new section 154 into the Act which is a transitional provision.


18


Property Law (Amendment) Bill

8.1

1bis Bill was introduced into the Legislative Assembly on 18 March 1998 by the Honourable Jan Wade MP with the Honourable Phi! Gude MP.

8.2

The purpose of the Bill is to amend the Property Law Act 1958:-

• to provide for a right of account as between eo-owners of propertyi and

• to enable the court to adjust personal property interests of de facto partners under Part IX of that Act.

8.3

Clause 4 inserts new section 28A which relates to the liability of a eo-owner to account to the other eo-owner. Clause 5 amends the heading of Part IX ("real property of de factos") to reflect that Part IX will apply to all property, both real and personal, of de facto partners. The Committee notes the comments in the Second Reading Speech:-

While at present, contributions by de facto partners to both real and personal property can be taken into account in adjusting the partners' real property interests, the current scheme does not provide for the adjustment of personal property interests of de facto partners. In the latter situation, resort must be had to the common law. The Bill addresses this anomaly by empowering the courts to also adjust the personal property interests of de facto partners.

Clause 8 makes statute law revision amendments.


State Trustees (Amendment) Bill

9.1

This Bill was introduced into the Legislative Assembly on 18 March 1998 by the Honourable Alan Stockdale MP with the Honourable Phi! Gude MP.

9.2

The purposes of the Bill are:-

• to amend the State Trustees (State Owned Company) Act 1994i and

• to make consequential amendments to the Accident Compensation Act 1985, the Administration and Probate Act 1985, the County Court Act 1958, the Magistrates'

19


Court Act 1989, the Ombudsman Act 1973, the Supreme Court Act 1986 and the Transport Accident Act 1986.

The Committee also notes the comments in the Second Reading Speech:-

9.3

The purpose of the Bill is to amend the State Trustees (State Owned Company) Act 1994 in accordance with recommendations arising from a National Competition Policy review of that legislation. The Bill also expands the jurisdiction of the Ombudsman to include the clients of State Trustees and makes some consequential amendments to other Acts. In particular, the Bill:

• removes the statutory preference or exclusive access of State Trustees zn the provision of a number of trustee and related services;

• allows the clients of State Trustees to have access to the Ombudsman; and

• provides greater legislative clarity where there is some overlap or duplication of provisions between various Acts.

Oause 4 makes various amendments to the Accident Compensation Act 1985. A new section 130(1A) provides that where State Trustees is nominated to administer compensation payments, the payments must be accepted and administered by State Trustees. Clause 7 inserts a new section 34A in the Administration and Probate Act 1958 to provide for the administration of estates by a creditor.

Clause 8 inserts new Division 2A into the County Court Act 1958 in relation to the administration of children's funds. Clause 10 amends the Ombudsman Act 1973 to provide that the Ombudsman may investigate any administrative action of State Trustees. Clause 11 inserts a new Division 4A into the Supreme Court Act 1986 in relation to the administration of children's funds. Clause 12 substitutes various references in the Transport Accident Act 1986.


Transport Acts (Amendment) Bill

10.1

This Bill was introduced into the Legislative Assembly on 18 March 1998 by the Honourable Robin Cooper MP with the Honourable Phil Gude MP.

10.2

The purpose of the Bill is:-

• to repeal certain provisions of the National Rail Corporation (Victoria) Act 1991 in order to facilitate the sale of the shares of the State of Victoria in National Rail Corporation Limited;

20


• to repeal provisions of the Transport Act 1983 that restrict the carriage of certain goods by commercial goods vehicle; and

• to make a minor amendment to the Rail Corporations (Amendment) Act 1997 concerning the appointment of an authorized person under section 221(1)(c) of the Transport Act 1983.

10.3

Clause 2 is the commencement provision. The Committee notes that the commencement provision is open ended. The Committee also notes the comments in the Second Reading Speech:-

10.4

The sale of National Rail requires approval of the three shareholders, the Commonwealth, NSW and Victoria. Together, with agreement from the other signatories to the agreement, Queensland, South Australia and Western Australia. Arrangements for the sale are being developed (including the sale of Victoria's shareholding) and the sale is expected to be completed in 1998. While the Government intends to proceed with the Bill, proclamation of these clauses relating to the sale of National Rail will not occur until all outstanding issues between the relevant parties are fully resolved.

Clauses 3 and 4 repeal various provisions. Clause 7 repeals spent provisions. Clause 10 makes statute law revision amendments. Clause 11 amends section 36 of the Rail Corporations (Amendment) Act 1997. The effect of the amendment will be to maintain the existing ability of the Secretary to the Department of Infrastructure to appoint persons other than employees or agents of a passenger transport company to be authorised persons. The provision operates retrospectively in that it is deemed to have come into operation on 16 December 1997.


Building (Amendment) Bill

11.1

This Bill was introduced into the Legislative Assembly on 18 March 1998 by the Honourable Rob Maclellan MP with the Honourable Phil Gude MP.

11.2


• to amend the Building Act 1993 to improve the administration of that Act; and

• to amend the Docklands Authority Act 1991 in relation to the administration and enforcement of the building laws in the docklands area.

21


11.3

Clause 5 amends section 186A to enable the Building Practitioners Board to delegate its functions under section 170(1) to the Registrar of the Board. Clause 6 enables the Commission to enter into arrangements or agreements with any person or body to act as its agent for the purpose of administering the Building Administration Fund. Oause 8 inserts a new section 216A which enables a council to apply to the Minister for an exemption for its municipal building surveyor or from any requirement to consider applications for building work other than prescribed domestic building work. The Committee notes the comments in the Second Reading Speech:-

To provide the Councils with greater flexibility in their resourcing of the building control function it is proposed to insert a new section 216A to give Councils the ability to opt out of providing building permit services for non-domestic building work subject to the consent of the Minister.

The Committee also notes the explanatory memorandum:-

11.4

This exemption would only be considered in municipal districts where the Minister is satisfied that there are sufficient available private building surveyors. The Minister may at any time revoke such exemption if he or she believes it is necessary.

Clause 10 amends section 238(1) to enable the building regulations to prescribe the class of building work or proposed building work for which certificates may be given by a prescribed building practitioner. Oause 11 amends section 261 to enable the making of a regulation for the provision of certificates as to compliance with conditions on permits and approvals. Oause 12 substitutes a new section 31 in the Docklands Authority Act 1991 to permit the Minister to specify by Order that a person is responsible for the administration and enforcement of Parts 3, 4, 5, 7 and 8 of the Building Act 1993 and the building regulations under that Act in any part of the Docklands area. The Minister's Order must be published in the Government Gazette.


Credit (Amendment) Bill

12.1

This Bill was introduced into the Legislative Assembly on 25 March 1998 by the Honourable Marie Tehan MP on behalf of the Honourable Jan Wade MP with the Honourable Bill McGrath MP.

12.2


• to amend the Credit Act 1984 to allow the Credit Tribunal to make orders varying civil penalties where there have been minor errors; and

22


• to make a statute law revision change to the Credit (Administration) Act 1984.

12.3

Oause 3 inserts a new section 86AA into the Act which provides that if a credit provider makes an application to the Credit Tribunal and requests the Tribunal to deal with the application, the Tribunal may make an order reinstating credit charges if the Tribunal is satisfied of various matters. Clause 5 inserts a new section 167G which sets out the operation of section 167G. Oause 5 makes a minor statute law revision amendment.


Drugs, Poisons and Controlled Substances (Amendment) Bill

13.1

This Bill was introduced into the Legislative Council by the Honourable Rob Knowles MLC on24March 1998.

13.2

The main purposes of the Bill are:-

• to repeal section 31 of the Drugs, Poisons and Controlled Substances Act 1981;

• to make the sale or supply of certain Schedule 7 poisons by retail no longer subject to the requirement to have a licence; and

• to make provision in relation to the treatment of certain patients by medical practitioners with Schedule 8 poisons in certain circumstances.

13.3

Clause 4 amends section 20 of the Act to remove the requirement for persons to obtain a licence to sell or supply by retail any Schedule 7 poison. The Committee notes the comments in the Second Reading Speech:-

The Bill also proposes that the need to hold a licence to sell or supply a schedule 7 poison by retail be removed. This proposal is in line with government initiatives to reduce the number of licences which businesses are required to hold. In the case of schedule 7 poisons, which are principally used in agriculture, other mechanisms exist to protect the public from the harm which could be caused by these substances. These mechanisms include the requirement that users of these poisons hold a chemical users permit under the Agricultural and Veterinary Chemicals (Control of use) Act and the regulations made under that act. In addition, self-regulatory measures have been put in place by Agsafe, a division of the Agricultural and Veterinary Chemicals Association Ltd, which involve the accreditation of premises and sellers of these chemicals and include sanctions for non-compliance with accreditation requirements. Provisions relating to sale or supply, including maintenance of records and prohibitions of sales to minors are not affected by this amendment.

23


Clause 7 amends section 33 to make it clear that a registered medical practitioner who has administered, supplied or prescribed any Schedule 8 poison or Schedule 9 poison to or for any patient for a continuous period of 8 weeks or more must notify the Chief General Manager as soon as practicable after the expiration of 8 weeks from the commencement of the prescription.

Clause 8 amends section 35 to authorise a registered medical practitioner to administer or supply a Schedule 8 poison to a person, other than a drug dependant person, during a continuous period greater than 8 weeks without a permit under specified conditions. Clause 9 inserts new section 35A which provides that the Chief General Manager may specify medical conditions by notice published in the Government Gazette.


Committee Room Monday 6 April1998

24



on the

Agriculture Acts (Amendment) Bill Business Licensing Authority Bill Classification (Publications, Films and Computer Games) (Enforcement)(Amendment) Bill Dried Fruits (Repeal) Bill Education (Self-Governing Schools) Bill Gaming Acts (Amendment) Bill Gas Pipelines Access (Victoria) Bill Heritage Rivers (Amendment) Bill Land (Revocation of Reservations) Bill Local Government (Darebin City Council) Bill Printers and Newspapers (Repeal) Bill Road Safety (Driving Instructors) Bill St George Bank and Advance Bank Australia Bill Transport Accident (Amendment) Bill Tribunals and Licensing Authorities (Miscellaneous Amendments) Bill Victorian Civil and Administrative Tribunal Bill Victorian Plantations Corporation (Amendment) Bill

Tuesday, 21 Apri11998

25



Agriculture Acts (Amendment) Bill Business Licensing Authority Bill Classification (Publications, Films and Computer Games) (Enforcement)(Amendment) Bill Dried Fruits (Repeal) Bill Education (Self-Governing Schools) Bill Gaming Acts (Amendment) Bill Gas Pipelines Access (Victoria) Bill Heritage Rivers (Amendment) Bill Land (Revocation of Reservations) Bill Local Government (Darebin Gty Council) Bill Printers and Newspapers (Repeal) Bill Road Safety (Driving Instructors) Bill St George Bank and Advance Bank Australia Bill Transport Accident (Amendment) Bill Tribunals and Licensing Authorities (Miscellaneous Amendments) Bill Victorian Gvil and Administrative Tribunal Bill Victorian Plantations Corporation (Amendment) Bill


26

Agriculture Acts (Amendment) Bill Business Licensing Authority Bill Oassification (Publications, Films and Computer Games) (Enforcement)( Amendment) Bill Dried Fruits (Repeal) Bill Education (Self-Governing Schools) Bill Gaming Acts (Amendment) Bill Gas Pipelines Access (Victoria) Bill Heritage Rivers (Amendment) Bill Land (Revocation of Reservations) Bill Local Government (Darebin Gty Council) Bill Printers and Newspapers (Repeal) Bill Road Safety (Driving Instructors) Bill St George Bank and Advance Bank Australia Bill Transport Accident (Amendment) Bill Tribunals and Licensing Authorities (Miscellaneous Amendments) Bill Victorian Gvil and Administrative Tribunal Bill Victorian Plantations Corporation (Amendment) Bill


Land (Revocation of Reservations) Bill

1.1

This Bill was introduced into the Legislative Assembly on 8 April 1998 by the Honourable Marie Tehan MP with the Honourable Jan Wade MP.

1.2

The purpose of the Bill is to revoke reservations over various parcels of land.

1.3

Clause 3 provides for the revocation of various reservations of land. Clauses 4 and 5 also provide for the revocation of reservations of land. Clause 7 gives the RegistrarGeneral and Registrar of Titles the power to make necessary amendments.


Transport Accident (Amendment) Bill

2.1

This Bill was introduced into the Legislative Assembly on 8 April 1998 by the Honourable Alan Stockdale MP with the Honourable }an Wade MP.

2.2

The purpose of the Bill is to make miscellaneous amendments to the Transport Accident Act 1986. The Committee also notes the comments in the Second Reading Speech:-

2.3

The main purpose of the Bill is to introduce a revised approach to the measurement of impairment of persons injured as a result of transport accidents. The approach to be adopted is consistent with that to be adopted by the Victorian WorkCover Authority as a consequence of amendments to the Accident Compensation Act 1986 made during the last Parliamentary Sitting.

Clause 4 amends section 23(2) to repeal the requirement that the Commission's authorisation of services be in accordance with the regulations.

I The Committee will writ£ to the Minister requesting his advice as to why this is so.

Clause 7 amends section 39(5) to provide that motor cycle riders participating in training under the Road Safety Act 1986 are not precluded from receiving loss of earnings benefits if injured whilst participating in the accredited training. Clause 8 amends section 46A to provide that assessment of the degree of impairment of a person

27

Scrutitty of Acts and Regulations Committee

injured in a transport accident will be made using the 4tn edition of the American Medical Association Guides to the Evaluation of Permanent Impairment.

The Committee was of the view that in some instances entitlements may be diminished and in other instances may be enhanced by the adoption of the 4th edition of the American Medical Association Guides to the Evaluation cif Permanent Impairment.

Clause 12 clarifies section 55(2) to provide that a person can only make an application for review of the level of their loss of earning capacity benefits if they are in actual receipt of those benefits.

2.4

Clause 13 amends section 77(2) to provide that an application for review by the AAT of a decision of the Commission can only be made within 12 months of becoming aware of the decision. The provision has effect from 9 April1998. The Committee notes the comments in the Second Reading Speech:-

28

Section 77 of the Transport Accident Act has provided, since its introduction in 1986, that a person aggrieved by a decision of the Commission has 12 months in which to apply for a review by the AAT. Until1996, the 12 month time limit was strictly enforced with the support of decisions of the Supreme Court, the latest of these in 1994. In 1996 the Court of Appeal in the case of Bell v TAC found that the 12 month time limit expressed in the Transport Accident Act 1986 could be extended by the AAT under section 31 of the Administrative Appeals Tribunal Act 1984.

The TAC has been monitoring the impact of the Bell decision to determine how the decision will effect the transport accident scheme. The period since the Bell decision has seen a proliferation of applications to the AAT to review decisions of the TAC outside the normal12 month period. Thirty six such appeals were recorded in 1995/6 and 107 in 1996!7. By March this year, 171 Bell type applications had been made to the AAT. The sharp increase in applications for review of decisions and the prospect of many more mean that many decisions made by the TAC over the last 10 years could be re-opened. This can occur even though the claimant was previously informed of their right to appeal at the time of being advised of the TAC's decision. The effect of this is to expose the transport accident scheme to significant uncertainty.

In view of the increase in applications for the review of T AC decisions outside the original intention of the Act, the Government has determined to re-impose the 12 month limitation to apply for a review by the AAT of TAC decisions which shall take effect from today. The Government believes that the law demands certainty and cutting off of endless litigation. The TAC needs to be able to finalise transport accident claims with certainty and cannot be reasonably expected to revisit decisions made in excess of 12 months earlier.

The 12 month period adopted by the TAC is more generous than the 28 day period normally allowed for other matters reviewed by the AAT. The TAC needs to be able to close off files at some point in order to determine the extent of its long term liabilities.


Victorian Plantations Corporation (Amendment) Bill

3.1

This Bill was introduced into the Legislative Assembly on 8 April 1998 by the Honourable Alan Stockdale MP with the Honourable Jan Wade MP.

3.2

The purposes of the Bill are to amend the Victorian Plantations Corporation Act 1993:-

• to provide for the sale of the forestry business of the Victorian Plantations Corporation;

• to permit the granting of perpetual licences for land vested in the Victorian Plantations Corporation; and

• to amend various other Acts in relation to their application to land vested in the Victorian Plantations Corporation and licensees of that land.

3.3

Oause 5 inserts a new section 8E allowing for the closure of roads listed in proposed Schedule 5. Oause 8 inserts new Part 3A into the Act which makes provision for plantation licences. The Committee notes that new section 27] provides that no compensation is payable by the Crown or the Corporation in respect of the cancellation of a plantation licence under Part 3A.

Clause 10 inserts a new Part 5 which provides for the transfer of certain property and staff of the corporation. Clause 11 inserts new Schedules 5, 6, 7 and 8 which set out the various roads to be closed, land which ceases to be reserved etc. Clauses 12 to 21 make consequential amendments to other Acts.

Local Government (Darebin City Council) Bill

4.1

This Bill was introduced into the Legislative Assembly on 8 April 1998 by the Honourable Rob Maclellan MP with the Honourable Robin Cooper MP.

4.2


• to dismiss the Darebin Oty Council; and

• to extend the operation of the Order in Council that applies to that Councili and

• to set a date for a general election of the Darebin Oty Council.

29

Scrutiny of Acts and REgulations Committee

4.3

Clause 5 provides for the dismissal of the Darebin City Council. Clause 7 provides for a general election on 12 September 1998. Oause 8 makes provision for future elections.


Road Safety (Driving Instructors) Bill

5.1

This Bill was introduced into the Legislative Assembly on 8 April 1998 by the Honourable Robin Cooper MP with the Honourable Rob Maclellan MP.

5.2

The purpose of the Bill is to amend the Road Safety Act 1986 to provide a scheme for the compulsory registration of driving instructors.

5.3

Clause 3 inserts new sections 33, 33A and 33B which set out the various requirements of driver instructor authorities. An appeal application may be made to the Magistrates' Court where there is a refusal to grant an instructor authority.


Heritage Rivers (Amendment) Bill

6.1

This Bill was introduced into the Legislative Assembly on 8 April 1998 by the Honourable Marie Tehan MP with the Honourable Jan Wade MP.

6.2

The purpose of the Bill is to make further provision with respect to the clarification of boundaries of heritage river areas. It amends the Heritage Rivers Act 1992.

6.3

Clause 5 clarifies the effect of any instrument made under the Act. Clause 6 amends a number of descriptions thereby clarifying boundaries of heritage river areas set out in Schedule 1 of the Act. Clause 7 inserts a further description of a heritage river area in relation to the Baw Baw National Park.

30


The Committee notes that these amendments operate retrospectively from 10 September 1992.

The Committee also notes the comments in the Second Reading Speech: -

The Bill also provides that the amendments to the Act are deemed to have had effect from the date of Rayal Assent to the Principal Act in 1992, with the exception of clause 7, amending the description of the Aberfeldy Heritage River area, which is deemed to have had effect from the date of effect of the plan of the Baw Baw National Park.


Victorian Civil and Administrative Tribunal Bill

7.1

This Bill was introduced into the Legislative Assembly on 8 April 1998 by the Honourable Jan Wade MP with the Honourable Robin Cooper MP.

7.2

The purpose of the Bill is to establish a Victorian Ovil and Administrative Tribunal

7.3

Clause 8 establishes the Victorian Ovil and Administrative Tribunal. Clause 33 is the delegation provision. Clause 37 requires the submission of an annual report. Part 3 sets out the jurisdiction of the Tribunal and its functions.

Clause 53 provides that the Premier may certify that the disclosure of information about a specified matter or the disclosure of any matter contained in a document would be contrary to public interest because it would involve the disclosure of deliberations of the Cabinet or a committee of the Cabinet. Part 4 contains provisions which relate to the general procedure of the Tribunal. Clause 62 provides for the representation of parties in various matters.

7.4

Division 5 provides for compulsory conferences, mediation or settlement. Division 8 governs costs. Division 9 makes provision for orders of the Tribunal. Division 10 sets out general powers. Clause 129 sets out the powers of entry and inspection of the presiding member of the Tribunal. Division 11 sets out the various offences. Part 5 provides for appeals from the Tribunal. Part 6 establishes a Rules Committee. Part 7 contains miscellaneous provisions. Clause 161 is the regulation making provision.

31

Scrutiny of Acts and &gulations Committee

7.5 Alteration or variation of section 85 of the Constitution Act 1975 (section 4D(b)(i) and (ii) of the Parliamentary Committees Act 1968)

Clause 160 declares the intention of section 52 to alter or vary section 85 of the Constitution Act 1975. Clause 52 limits the Supreme Court's jurisdiction to hear planning matters. The Committee notes the comments in the Second Reading Speech:-

Clause 160 of this Bill is included to satisfy the requirements of section 85 of the Constitution Act 1975 in respect of the changes to the jurisdiction of the Supreme Court effected by clause 52.

Clause 52 excludes the jurisdiction of the Supreme Court, County Court and Magistrates' Court to hear or continue to hear any planning matter where the Victorian Civil and Administrative Tribunal has jurisdiction to review the matter. Clause 52 re-enacts section 66A of the Planning Appeals Act 1980 as this Act will be repealed. Clause 52 merely maintains the status quo in planning disputes.

The planning division of the Administrative Appeals Tribunal has always been considered to be a "one stop shopn for disputes within the planning jurisdiction. It is intended that VCAT continue to fulfil this role. The Government considers it appropriate that all planning disputes be dealt with in a forum with accumulated expertise in planning matters. Consequently, the Courts' jurisdiction to hear planning matters has been excluded.

However, it should be noted that if a court is of the opinion that there are special circumstances which justify hearing a particular proceeding in the planning jurisdiction, the Court may hear and determine the matter.

The Committee is of the view that the proposed section 85 provision is approprillte and desirable in all the circumstances.

Business Licensing Authority Bill

8.1


8.2

The main purpose of the Bill is to establish and provide for the operation of the Business Licensing Authority.

8.3

Clause 4 establishes the Business Licensing Authority. Oause 6 sets out its functions. Oause 7 sets out its powers. Clause 11 is the power of delegation. Clause 16 is the Registrar's delegation power. Clause 18 is the secrecy provision. Clause 19 gives a

32


member of the Authority personal immunity when discharging his or her duties under the Act. The Schedule includes those matters which relate to the appointment of members of the Authority.


Tribunals and Licensing Authorities (Miscellaneous Amendments) Bill

9.1


9.2

The purpose of the Bill is:-

• to amend various Acts as a consequence of the Victorian Civil and Administrative Tribunal Act 1998 and the Business Licensing Authority Act 1998;

• to repeal the Administrative Appeals Tribunal Act 1984, the Planning Appeals Act 1980 and certain other Acts; and

• to make certain other transitional arrangements.

9.3

In general terms the amendments in this Bill are technical and reflect the abolition of various tribunals and the conferral of the jurisdiction on the VCAT. By way of explanation, the Committee also notes the comments in the Second Reading Speech:-

As members will be uware, VCAT will encompass 12 tribunals, boards and authorities. The Acts establishing those bodies have all required extensive amendment. Many other Acts grant jurisdiction to tribunals such as the Administrative Appeals Tribunal. All of these Acts require amendment to alter current references from the existing tribunals to VCAT or the Business Licensing Authority.

The consequential amendments, in addition to changing references to reflect the establishment of VCAT and BIA:

• Prcroide for common language;

• Standardise the test for standing before VCAT; and

• Establish time limits for the bringing of applications for review.

The Bill also sets out transitional arrangements to assist the merging of the twelve tribunals, boards and authorities.

33

Scrutiny of Acts an4 Regulations Committee

9.4

Part 2 amends the Consumer Credit (Victoria) Act 1995 to reflect the establishment of the VCAT. Part 3, clauses 21 to 25 amend the Credit Act 1984. Part 4 makes various amendments to the Credit (Administration) Act 1984. The amendments in Part 5 relate to the Domestic Building Contracts and Tribunal Act 1995. Part 6 makes amendments to the Equal Opportunity Act 1995. Part 7 amends the Estate Agents Act 1980. Part 8 makes similar amendments to the Guardianship an4 Administration Board Act 1986. Part 9 amends the Introduction Agents Act 1997. Part 10 amends the Motor Car Traders Act 1986. Part 11 relates to the Planning an4 Environment Act 1987. Part 12 amends the Prostitution Control Act 1994. Part 13 makes various amendments to the Residential Tenancies Act 1997. Part 14 amends the Retail Tenancies Reform Act 1998. Part 15 covers relevant provisions in the Second Hand Dealers an4 Pawnbrokers Act 1989. Part 16 makes provision for the Small Claims Tribunal Act 1973.

Part 17 amends the Travel Agents Act 1986. Part 18 amends the Valuation of Land Act 1960. Part 19 contains general provisions and repeals the AAT Act and the Planning Appeals Acts. Schedule 1 makes consequential amendments to a number of Acts.

Schedule 2 contains transitional provisions. Clause 4 in Schedule 2 provides for the transfer of members to the new Tribunal. Clause 5 in Schedule 2 sets out the terms and conditions of those transferred members. Clause 8 in Schedule 2 provides for the transfer of staff from the various abolished tribunals. Schedule 3 provides for interim fees.

9.5 Alteration or variation of section 85 of the Constitution Act 1975 (section 4D(b )(i) and (ii) of the Parliamentary Committees Act 1968

JURISDICTION OF TRIBUNALS - By way of explanation, the Committee notes the general comments in the Second Reading Speech:-

A number of the tribunals encompassed by VCAT were established under Acts containing provisions which exclude the jurisdiction of the Supreme, uunty and Magistrates' Courls. Successive governments have considered it appropriate to exclude the uurls' jurisdiction to hear matters where a specialist tribunal has been established to hear matters in a parlicular jurisdiction. Tribunals can offer litigants a high level of experiise in a forum which is less expensive and more accessible than the courl system.

Where a tribunal to be encompassed within VCAT has exercised exclusive jurisdiction, VCAT will continue that arrangement.

(i) Clause 42

Clause 42 declares the intention of section 57 of the Domestic Building Contracts and Tribunal Act 1995 as amended by clause 38 of the Bill to alter or vary section 85 of the Constitution Act 1975. The Committee notes the comments in the Second Reading Speech:-

34

Section 57 of the Domestic Building Contracts and Tribunal Act 1995 limits the jurisdiction of the Supreme, OJunty and Magistrates' OJurts to hear matters which are wholly or predominantly domestic building disputes. Under this section a courl was required to dismiss any action on the application of any party if the action came within the jurisdiction of the domestic building tribunal and the court had not begun to hear the


matter. If the matter was dismissed, any party could apply to have the dispute heard in the domestic building tribunal. It is intended that this arrangement continue and that VCAT maintain what is essentially an exclusive jurisdiction to hear domestic building disputes. Section 57 has also been amended l!y clause 38 of this Bill to make it clear that where an action relating to a domestic building dispute is stayed l!y a court and a party applies to have the dispute heard l!y VCAT then VCAT must notify the appropriate court of that application and the court must dismiss the action.

Tire Committe.e is of the view that the proposed section 85 provision is appropriate and desirable in all the circumstances.

(ii) Clause 247

Clause 247 declares the intention of the section 35(2) as it amends section 48 of the Retail Tenancies Reform Act 1998 to alter or vary section 85 of the Constitution Act 1975. The Committee notes the comments in the Second Reading Speech:-

Clause 245 of this Bill inserts a new section 35(2) into the Retail Tenancies Reform Bill currently before Parliament to give VCAT exclusive jurisdiction to hear retail tenancy disputes. Currently, retail tenancy disputes are dealt with through a process of conciliation and arbitration outside of the court system. It is considered appropriate that VCAT exercise exclusive jurisdiction so that these disputes are dealt with in a low cost forum which can offer expertise in this area.

The Committe.e is of the view that the proposed section 85 provision is appropriate and desirable in all the circumstances.

(iii) Clause 276

Clause 276 inserts new section 37B into the Small Claims Tribunal Act 1973 which declares the intention of section 16 as amended by the Bill to alter or vary section 85 of the Constitution Act 1975. The Committee notes the comments in the Second Reading Speech:-

Section 16 of the Small Claims Tribunal Act 1973 provided that a decision of a small claims tribunal was final and binding and that there was no right to appeal against that decision. A new section 16 has been substituted l!y clause 270 of this Bill. This section now provides that once an application is made to VCAT under this Act in respect of a small claim, the issues in dispute are not justiciable at any time l!y a court or a tribunal other than VCAT. There are some exceptions to this rule. If a proceeding has already commenced in a court or tribunal before the application was made to VCAT or the application to VCAT is withdrawn or struck out for want of jurisdiction then the court or tribunal can hear and determine the matter. It is considered appropriate that disputes involving small claims due to the small sums involved be dealt with l!y VCAT rather than the courts.

Tire Committe.e is of the view that the proposed section 85 provision is appropriate and desirable in all the circumstances.

35


(iv) Item 2.4 of Schedule 1

Item 2.4 of Schedule 1 inserts new section 15 into the Administrative Law Act 1978. New section 15 declares the intention of amended sections 4(3) and 4(4) to alter or vary section 85 of the Constitution Act 1975. The Committee notes the comments in the Second Reading Speech:-

Item 2.1 of Schedule 1 to this Bill re-enacts section 4(3) and (4) of the Administrative Law Act 1978 which limited the power of the Supreme Court on a review of a proceeding before a Small Claims Tribunal, the Credit Tribunal or the Residential Tenancies Tribunal to where there existed grounds of lack of jurisdiction or denial of natural justice. This limitation is continued with respect to VCAT. It is considered appropriate due to the nature of the claims to limit the jurisdiction of the Supreme Court to review decisions in respect of small claims, credit and residential tenancies disputes to ensure the finality of proceedings while ensuring that a party can apply for review where there has been a denial of natural justice or lack of jurisdiction.


(v) Item 106.2 of Schedule 1

Item 106.2 of Schedule 1 inserts new section 183A into the Water Industry Act 1994 which declares the intention of amended section 74(5) to amend or vary section 85 of the Constitution Act 1975. The Committee notes the comments in the Second Reading Speech:-

Section 74 of the Water Industry Act 1994 relates to the liability of licensees arising out of the intentional or negligent flow of water from works onto any land. Item 106.1 of Schedule 1 to this Bill inserts a new section 74A which sets out the jurisdiction of VCAT in respect of these matters. Section 74A(5) grants exclusive jurisdiction to hear these matters to the VCAT. The one exception to this is a claim from damages arising out of personal injury. This is not a change to current jurisdictional arrangements. Under section 19 of the Water Act 1989, the Administrative Appeals Tribunal has exercised exclusive jurisdiction to hear matters under section 740) of the Water Industry Act 1994. All that is being done is to confer the exclusive jurisdiction on VCAT and move the reference relating to jurisdiction from the Water Ad 1989 to the Water Industry Act 1994.


36


Classification (Publications, Films and Computer Games) (Enforcement)(Amendment) Bill

10.1


10.2

The purpose of the Bill is to amend the Classification (Publications, Films and Computer Games)(Enforcement) Act 1995:-

• to create offences in respect of commercial quantities of certain prohibited material;

• to provide further for forfeiture of seized items;

• to require all Category 1 restricted publications to be sold in sealed, plain, opaque packages; and

• to increase penalties against bodies corporate.

10.3

Clause 5 makes it an offence to sell a commercial quantity of X films. Clause 6 inserts a new section 23A which set out various indictable offences. Clause 8 substitutes a new section 26(1) which provides that a person must not sell or deliver a publication classified Category I restricted unless it is contained in a sealed, opaque package. Clauses 9 to 11 sets out further offences. Clause 12 provides new time limits within which certain actions may be instituted under section 75 of the Act. Clause 13 inserts a new section 75A which provides for seizure of goods when a person is found guilty of an offence. Clause 14 changes the penalty for a body corporate from a maximum of 240 units to a penalty "not exceeding 5 times the maximum amount which the court could otherwise impose in respect of the offence." Oause 15 contains transitional provisions.


Dried Fruits (Repeal) Bill

11.1

This Bill was introduced into the Legislative Assembly on 8 April 1998 by the Honourable Pat McNamara MP with the Honourable Phli Gude MP.

11.2


• to repeal the Dried Fruits Act 1958; and

37


• to provide for the transfer of property, assets, rights and liabilities of the Victorian Dried Fruits Board to a trust established for the purpose of promoting the development of the dried fruits industry.

11.3

Oause 4 provides for the trustee to the successor in law of the former Board. Pursuant to clause 5 all former monies are vested in the trustee. Clause 8 gives the Registrar of Titles the power to make any necessary amendments to the Register. Clause 10 requires the trustee to submit an annual report of its operation and finances. Clause 11 repeals the Dried Fruits Act 1958.

The Committee makes no furlhu comment.

St George Bank and Advance Bank Australia Bill

12.1


12.2

The purpose of the Bill is to facilitate the merger of Advance Bank Australia Limited with St George Bank Limited.

Clause 5 authorises the St George Bank to carry on business under a number of names. Oause 6 provides that the St George Bank must pay an amount in lieu of State taxes and charges. Oause 7 empowers the CEO of the St George Bank to certify any matter in relation to the operation of the Act relating to assets or liabilities.


Gas Pipelines Access (Victoria) Bill

13.1


13.2

The purpose of the Bill is to make provision for the regulation of third party access to natural gas pipeline systems and to amend the Gas Industry Act 1994. The Committee notes by way of explanation in the Second Reading Speech:-

38

The Bill effectively implements Victoria's commitment to the introduction of a uniform national framework for access to natural gas pipelines. In February 1994, the Council of Australian Governments (COAG) agreed to enhance competition in the natural gas

13.3


sectar by committing to the development of "free and fair trade in natural gas". One objective was to encourage the development of a national competitive natural gas market by establishing a unifarm 114tional regula.tory framework far third party access to natural gas pipelines and far facilitating the interconnection of pipeline systems.

Development of that 1!4ti0114l regula.tory framework commenced under the auspices of COAG in 1996 and was fin4lised last year when all States and Territories and the Commonwealth signed the Natural Gas Pipelines Access Agreement.

Oause 3 of the definition provides that the words "South Australian Act" in the Bill mean the Gas Pipelines Access (South Australian) Act 1997. Oause 3 also defines "Gas Pipelines Access Law" as Schedule 1 to the South Australian Act. Oause 7 applies the Gas Pipelines Access Law as a law of Victoria. Clause 8 applies the regulations in force in South Australia as in force in Victoria for the purposes of the Gas Pipelines Access (Victoria) Law.

The Chair will write to the Treasurer on behalf of the Committee in the following terms:-

The Scrutiny of Acts and Regula.tions Committee considered the above bill at a meeting on 2IJ April1998.

The Committee has a series of concerns in rela.tion to the Bill.

(1) Scrutiny of the legisla.tion

The purpose of the Bill is to adopt the South Australian legisla.tion. Whilst the Committee understands that the Bill forms part of a 1!4tional scheme of legisla.tion, it is difficult for it to fulfil its obligations under section 413(a) of the Parliamentary Committees Act 1968 without sighting the South Australian Act. Whilst this is easily rectified from the Committee's point of view, it highlights the more general problem of scrutiny of the Parliament. The Committee is of the view that all Victorian legisla.tion should be accessible. To this end, the Committee is of the view that the South Australian Act should farm part of an appendix to the Victorian Bill so that at least there is some chance far members and the public to avail themselves of the state of the la.w.

(2) Regula.tions

The Committee is also troubled at the prospect of the Victorian Parliament adopting binding regula.tions which are made interstate. Again, there is no chance of approprUzte scrutiny ar input. It seems to the Committee that this is not sound Parliamentary practice.

(3) Delegation provisions

By way of example of insufficient scrutiny, the Committee notes that there are delegation provisions contained in the South Australian Act which may, if introduced directly in a Victorian Bill be of concern. The concerns rela.te to the width of the delegation provisions. As the South Australian legisla.tion is already in farce, there is little a Victorian Scrutiny Committee can do to articula.te its concerns.

39


(4) Section 85 of the Constitution Act 1975

Clause 2.3 of the Bill declares the intention of section 22 to alter or vary section 85 of the Constitution Act 1975. Clause 22 refers to Paris 5 and 6 of the South Australian Act which set out the administrative proceedings which may be commenced for any breaches of the law. The Committee notes that Parts 5 and 6 are not reproduced anywhere in the Bill.

Where a particular course is contemplated in Victorian legislation in terms of altering or varying the jurisdiction of the Supreme Court, a section 85 clause highlights that matter to the Parliament. The Committee is concerned about the concept of precluding the institution of proceedings in a Victorian court in circumstances where the legislative provisions to which such proceedings might apply do not appear within the Bill and are therefore beyond scrutiny.

(5) Continuing problem

By way of conclusion the Committee notes that as national schemes of legislation continue to increase in popularity and number, so too will the need to address these scrutiny issues. It would seem likely that such issues will continue to emerge in further areas of significance.

The Committee would grateful for your response in respect of these matters and indeed advice as to whether appropriate amendments may be made. The Committee would appreciate your response by no later than 9.00 am on Monday 28 April1998 so that it can be incorporated into the next Alert Digest.

Please do not hesitate to contact me should you wish to discuss any of these matters.

Clause 12 confers on the local Minister, the local Regulator and the local appeals body within the meaning of the gas pipelines access legislation of another scheme participant, the power to do acts in or in relation to Victoria in performing or exercising functions or powers conferred on them under the gas pipelines access legislation of that other scheme participant. Clause 19 sets out the exemption from stamp duty. Part 5 contains consequential amendments.


Clause 23 declares the intention of section 22 to alter or vary section 85 of the Constitution Act 1975. Clause 22 refers to Parts 5 and 6 of the South Australian Act which set out the administrative proceedings which may be commenced for any breaches of the law. However, it is noted that Parts 5 and 6 are not themselves reproduced. The Committee notes the comments in the Second Reading Speech:-

40

The Bill includes a provision to the effect that clause 22 is intended to vary or alter section 85 of the Constitution Act 1975. This clause relates to a limitation included in the Bill on persons who may bring proceedings in respect of matters arising under the Gas Pipelines Access Law. The lead legislation of South Australia, which is applied by the Bill, contains detailed provisions concerning the enforcement of the Law. Certain enforcement rights are given exclusively to the relevant regulatory authorities while other specific enforcement rights are given to any person who is affected by a breach of the law. In order to ensure that these limitations relating to enforcement are effective in


Victoria, and accordingly apply uniformly across all jurisdictions, it is necessary to expressly recognise the intention to vary the jurisdiction of the Supreme Court as set out in section 85 of the Constitution Act.

'

The Committee is concerned at the application of a section 85 provision as expressed in its 1 letter to the Treasurer set out above.

Printers and Newspapers (Repeal) Bill

14.1

This Bill was introduced into the Legislative Assembly on 8 April 1998 by the Honourable jan Wade MP with the Honourable Robin Cooper MP.

14.2


• to repeal the Printers and Newspapers Act 1958; and

• to amend the Wrongs Act 1958 to provide for the identification of publishers.

14.3

Clause 4 inserts a new Part lA into the Wrongs Act 1958 in respect of the identification of publishers. Clause 5 makes a consequential amendment.


Education (Self-Governing Schools) Bill

15.1

This Bill was introduced into the Legislative Assembly on 8 April 1998 by the Honourable Phil Gude MP with the Honourable Pat McNamara MP.

15.2

The main purpose of the Bill is to amend the Education Act 1958 and the Teaching Service Act 1981 to make further provision for the management and operation of State schools.

15.3

Clause 3 amends section 13 of the Education Act 1958 to provide that councils of State schools may be established by Ministerial order. Clause 5 inserts new Division 3B

41

Scrutiny of Acts atul Regulations Committee

which sets out the special function of school councils and the various powers which they may exercise.

Clause 8 amends section 77 of the Teaching Service Act 1981 to enable the Secretary to delegate powers to a school council


Agriculture Acts (Amendment) Bill

16.1

This Bill was introduced into the Legislative Assembly on 8 April 1998 by the Honourable Pat McNamara MP with the HonoUiable Phil Gude MP.

16.2

The purpose of the Bill is to amend the Agricultural Industry Development Act 1990; the Barley Marketing Act 1993; the Plant Health and Plant Products Act 1995 and the Prevention of Cruelty to Animals Act 1986.

16.3

Clause 3 extends the term of the Murray Valley Wine Grape Industry Development Order to five years from 16 June 1994. Clause 5 extends the Barley Marketing Board's powers for a further season. Clause 6 amends the Plant Health and Plant Products Act 1995 to impose additional health declaration requirements on persons importing, introducing or bringing into Victoria prescribed material. Clause 7 repeals section 5(6) of the Prevention of Cruelty to Animals (Amendment) Act 1995 because it contains a superseded reference.

This dates from 31 March 1998. Clause 8 amends section 6 of the Prevention of Cruelty to Animals Act 1986 to ensure that any fishing activity authorised by the Fisheries Act 1995 will be excluded from the provisions of the Prevention of Cruelty to Animals Act 1986. This dates from 1 April1998. The Committee notes the comments in the Second Reading Speech:-

In 1995, the Fisheries Act 1995 was enacted which required consequential amendments to be made to the Prevention of Cruelty to Animals Act 1986 to ensure authorised fishing activities could be continued to be excluded from the provisions of the Act. However, following an extensive consultation process the Fisheries Act was substantially revised in early 1997 to incorporate, amongst other things, a simplified licensing system. Unfortunately, a consequential minor technical amendment was not made to the Prevention of Cruelty to Animals Act 1986 to ensure that authorised fishing activities continued to be exempted from the provisions of that Act.


42


Gaming Acts (Amendment) Bill

17.1


17.2

The Bill amends the Tattersall Consultations Act 1958; the Gaming Machine Control Act 1991 and Club Keno Act 1993. The purposes of the Bill are:-

• to enable one or more corporate bodies wholly owned and controlled by the trustees of the will and estate of the late George Adams to conduct gaming activities currently conducted by those trustees; and

• to make amendments of a statute law revision nature.

17.3

Clause 4 inserts various definitions into the Tattersall Consultations Act 1958. Clause 7 inserts new sections SA to SE into the Act which allow the Minister to declare a company that is wholly owned and controlled by the Trustees and which has been approved by the Authority to be the operator. Part 3 makes similar amendments to the Gaming Machine Control Act 1991. Clause 1S requires a declared company to comply with the relevant banking requirements. Part 4 makes similar amendments to the Club Keno Act 1993.


Committee Room Monday 20 April1998

43


44



on the

Ambulance Services (Amendment) Bill Appropriation (1998/99) Bill Appropriation (Parliament 1998/99) Bill Catchment and Land Protection (Amendment) Bill Electricity Safety Bill Fundraising Appeals Bill Gas Pipelines Access (Victoria) Bill Gas Industry (Amendment) Bill International Transfer of Prisoners (Victoria) Bill Land Tax (Amendment) Bill Local Government (Amendment) Bill Melbourne and Olympic Parks (Amendment) Bill Melbourne City Link (Exhibition Street Extension) Bill Miscellaneous Acts (Omnibus No. 1) Bill National Parks (Amendment) Bill Parks Victoria Bill Physiotherapists Registration Bill Public Correctional Services Authority Bill Public Sector Management and Employment Bill Public Sector Reform (Miscellaneous Amendments) Bill Rail Corporations (Amendment) Bill Road Safety (Amendment) Bill State Taxation (Amendment) Bill Transport Accident (Amendment) Bill

Tuesday, 12 May 1998

45



Ambulance Services (Amendment) Bill Appropriation (1998/99) Bill Appropriation (Parliament 1998/99) Bill Catchment and Land Protection (Amendment) Bill Fundraising Appeals Bill Gas Industry (Amendment) Bill International Transfer of Prisoners (Victoria) Bill Land Tax (Amendment) Bill Local Government (Amendment) Bill Melbourne and Olympic Parks (Amendment) Bill Melbourne City Link (Exhibition Street Extension) Bill Miscellaneous Acts (Omnibus No. 1) Bill National Parks (Amendment) Bill Parks Victoria Bill Physiotherapists Registration Bill Public Correctional Services Authority Bill Public Sector Management and Employment Bill Public Sector Reform (Miscellaneous Amendments) Bill Rail Corporations (Amendment) Bill Road Safety (Amendment) Bill State Taxation (Amendment) Bill


46

Ambulance Services (Amendment) Bill Appropriation (1998/99) Bill Appropriation (Parliament 1998/99) Bill Catchment and Land Protection (Amendment) Bill Electricity Safety Bill Fundraising Appeals Bill Gas Industry (Amendment) Bill Gas Pipelines Access (Victoria) Bill International Transfer of Prisoners (Victoria) Bill Land Tax (Amendment) Bill Local Government (Amendment) Bill Melbourne and Olympic Parks (Amendment) Bill Melbourne City Link (Exhibition Street Extension) Bill Miscellaneous Acts (Omnibus No. 1) Bill National Parks (Amendment) Bill Parks Victoria Bill Physiotherapists Registration Bill Public Correctional Services Authority Bill Public Sector Management and Employment Bill Public Sector Reform (Miscellaneous Amendments) Bill Rail Corporations (Amendment) Bill Road Safety (Amendment) Bill State Taxation (Amendment) Bill Transport Accident (Amendment) Bill


Appropriation (Parliament 1998/99) Bill

1.1

The Bill was introduced into the Legislative Assembly on 21 April 1998 by the Honourable Alan Stockdale MP with the Honourable Jeff Kennett MP.

1.2

The Bill provides for payments from the Consolidated Fund to the Parliament in respect to the 1998/99 financial year and for outstanding Parliamentary liabilities incurred prior to 1998/99.


Appropriation (1998/99) Bill

2.1


2.2

The Bill provides for payments from the Consolidated Fund to departments in respect to the 1998/99 financial year and for outstanding departmental liabilities incurred prior to 1998/99.


Road Safety (Amendment) Bill

3.1

The Bill was introduced into the Legislative Assembly on 8 April 1998 by the Honourable Robin Cooper MP with the Honourable Rob Maclellan MP.

3.2

The main purpose of the Bill is to facilitate the adoption in Victoria of national road transport laws that have, and are continuing to be developed by the National Road Transport Commission. The Committee notes the comments from the Second Reading Speech:-

47

Scrutiny of Acts and &gulations Committu

3.3

The Commission was established by the Commonwealth and the States to give effect to inter-governmental agreements on hetrvy vehicles and light vehicles, which are now set out in the schedule to the National Road Transport Commission Act 1991 of the Commonwealth.

The agreements were adopted as part of the micro-economic reforms that were initiated by the Special Premier's Conferences of1991 and 1992.

The present Government has been a strong supporter of the moves towards national uniformity of heavy vehicle charges and the adoption nationally of uniform laws governing the operation of vehicles on the road system.

The objective of these uniform measures is to improve the safety and efficiency of road transport and to reduce the costs of administration. These measures will, in turn, increase the competitiveness of Australian industry.

An additional benefit to the State in giving effect to the substance of the national laws, is that competition grants are payable by the Commonwealth to the State as a result of progress being made in the implementation of the national road transport laws.

Oause 4 repeals certain definitions that are inconsistent with proposed uniform road transport requirements or are otherwise redundant.

Oause 5 and 6 substitutes certain definitions and inserts new definitions so as to make them consistent with the proposed uniform national road transport requirements. The definition 'registered owner' is replaced with the new terminology 'registered operator' and is defined to mean 'the person recorded on the register as the person responsible for the vehicle '

Clause 7 inserts a new section 3A applying the Acts Interpretation Act 1901 (Cth) to the Victorian Act, saving the interpretation of the words "Gazette" and "Minister" (which apply to the Victorian Government Gazette and the Victorian Minister respectively.) The new section does not prevent the Victorian Interpretation of Legislation Act 1984 from applying to the extent that it can do so consistently with the Commonwealth Act.

Clause 8 inserts a Division 1 in Part 2 of the Act specifying the functions and powers of the Roads Corporation, sections 5AA and 5AB respectively. The purpose of the insertion is to make the Part consistent with the Road Transport Reform (Heavy Vehicles) Act 1997 (Cth) which forms part of the uniform national road transport requirements.

Clause 10 inserts a new section 6A to prevent the Roads Corporation from registering or renewing the registration of a vehicle unless the Corporation is satisfied the vehicle's garage address is in Victoria.

Clause 11 substitutes a new section 7(3). The new provision differentiates between penalties for contraventions by individuals and corporations. The present Act relevantly provides "A person who contravenes ... "

The penalty provisions are increased for both first and subsequent offences. The penalties provided in the existing legislation ranged from 5-10 penalty units for a first offence to 1()...15 penalty units for a subsequent offence. The new provision in the case

48


of individuals provides increased penalties not exceeding 25 penalty units for a first offence and 50 for a subsequent offence and for corporations not exceeding 125 penalty units for a first offence 250 for a subsequent offence.


The maximum court fines for using an unregistered vehicle on a highway are being increased in line with the national provisions. As with other national proposals, the maximum fine for a company or other body corporate is 5 times the fine for an individual. It should be noted that Courts have additional sentencing powers in the case of individuals in that they can cancel or suspend a driver's licence.

Oause 12 repeals section 8 relating to 'names in which motor vehicles or trailer may be registered' and inserts in Schedule 2 a new regulation making power to enable regulations to be made concerning names in which motor vehicles or trailers must not be registered. The regulation making power is consistent with the intent of the present section 8 of the Act which specify names in which a vehicle or trailer must not be registered.

Clause 13 inserts a new section 9A relating to the obligations of a registered owner and a new section 9B provides that the register does not provide evidence of title to a vehicle or trailer. Clause 14 clarifies the demerit points procedures in section 25.

Oause 15 inserts a new section 63A clarifying and extending police powers to remove vehicles obstructing access or egress to or from; (a) right of way, (b) passage; or (c) private drive. The section enables police to gain access to a vehicle using reasonable force and to move that vehicle to the nearest convenient place. New section 63A(2) empowers police to move vehicles which in the opinion of the police, is (i) a danger to other road users; or (ii) causing or likely to cause traffic congestion. New section 63A(4) enables the recovery of reasonable costs incurred in moving the vehicle. The Committee notes the comments in the Second Reading Speech:-

The Police have various powers under the Act and Regulations to deal with vehicles causing obstruction. However, the powers do not at present allow the police to move a vehicle parked illegally across the entrance to a private drive. A new section is being inserted into the Act to draw together the various powers in this area and to overcome the deficiency concerning private drives. The Bill also provides for the recovery of any costs reasonably incurred in exercising these powers.

Clause 16 amends section 890 by inserting a new sub-section 3A providing that a licence loss infringement notice in respect of a drink driving infringement can be issued to a person who holds a licence or permit issued in another State, territory or country, or who holds an international driving permit. If the person does not contest the infringement notice they can be disqualified from driving in Victoria in the same way as they would have been disqualified had they held a Victorian licence. At present non Victorian licence holders need to attend Court so that a disqualification order can be made. The Committee note the comments in the Second Reading Speech:-

The Road Safety Act contains provisions which enable certain offences which result in mandatory loss of licence to be dealt with by infringement notice. At present these provisions are so worded that they can only be applied to the holders of Victorian licences. This means that a visiting driver who holds a licence issued in another state, territory or country or an international driving permit, must be taken to Court so that a

49

Scrutiny of Acts and Regukl.tions Committee

disqualification order can be made if they are convicted of a licence loss offence. The Bill places such persons on the same footing as a Victorian licence holder by providing for their disqualification without having to go to Court should they choose not to object to a licence loss traffic infringement notice.

Clause 17 amends section 890 by inserting a new sub-section lA providing that a licence loss infringement notice can be issued in respect of an excessive speed infringement committed by a person who holds a licence or permit issued in another State or territory or country, or who has an international driving permit. Such a person can be disqualified from driving in Victoria on the same basis as if they held a Victorian licence.

Clause 18 amends the regulation making powers by allowing regulations to be made by the Roads Corporation to provide recognition of things done or omitted to be done under a law of the Commonwealth or another State or a Territory, the exemption of the application of the Act in respect to certain vehicles, the exemption of certain vehicles from the requirement to be registered and to impose penalties for individuals and corporations not exceeding 20 and 100 penalty units respectively. The current provision allows regulations to be made not exceeding 20 penalty units.

The amendments bring the regulation making powers into line with the national road transport requirements.

Clause 19 inserts new sections 95A and 95B incorporating the provisions of the Roads Transport Charges (Victoria) Act 1995 which is to be repealed. These provisions apply in Victoria the charges contained in the Road Transport Charges (Australian Capital Territory) Act 1993 (Cth) which forms part of the uniform national road transport requirements. New section 95B provides that section 7 of the Subordinate Legislation Act 1994 (circumstances in which a regulP.tory impact statement is to be provided by the responsible Minister) does not apply to regulations that revoke the Road Safety (Traffic) RegulP.tions 1988. The explanatory memorandum attached to the Bill states:-

This will facilitate the implementation of road rules which are to form part of the uniform national road transport requirements.

Oause 20 inserts a new section 96A providing the Minister power to declare by notice in the Government Gazette the suspension or variation of the operation of the regulations for a specified period or in a specified manner.

Clause 21 amends schedule 2 item 60 of the Act to allow regulations to be made 'Conferring a right of appeal or review to a specified court or tribunal against any decision of a Corporation .. : [the amendment inserts or review.]

Clauses 22 and 23 contain transitional and statute law revision provisions.

Clause 24 amends section 89 of the Sentencing Act 1991 to ensure that where a Court finds a person guilty of certain serious offences under the Crimes Act 1958, it may make a finding that the offence was committed while the offender was under the influence of alcohol or a drug which contributed to the offence. After the making of such an order the offender is required to undergo assessments similar to those provided for in the Road Safety Act 1986 before being eligible to have a driver licence restored. The Committee notes the comments in the Second Reading Speech:-

50


The Road Safety Act contains stringent measures to ensure that convicted drink drivers are not re-licensed unless assessment reports are provided to the Court to show that they are able to control the use of alcohol. Hawever, these provisions do not at present extend to serious offences outside the Road Safety Ad, such as manslaughter. This anomaly is being rectified by an appropriate amendment of the Sentencing Act 1991.

Clause 25 contains transitional provisions in respect to amendments made by clause 24. Oause 26 contain consequential amendments to other Acts to take account of the change of terminology from "registered owner" to "registered operator'' being introduced by the Bill. Clause 27 contains consequential amendments to the Transport Accident Act 1986 and inserts in section 3(1) of that Act a new provision defining "public place" for the purpose of that Act. Clause 28 repeals the Road Transport Charges (Victoria) Act 1995 as the relevant provisions are now being incorporated by the Bill.


Ambulance Services (Amendment) Bill

4.1

The Bill was introduced into the Legislative Assembly on 22 April 1998 by the Honourable Denis Napthine MP with the Honourable Phil Gude MP.

4.2

The purpose of the Bill is to abolish the Victorian Ambulance Board and Ambulance Officers Training Centre (AOTC). In winding up the AOTC the Bill provides for the Secretary of the Department of Human Services to in effect, become it's full successor in law, and enables the Department to purchase ambulance education and training services from an external body or bodies.

4.3

Oause 5 repeals Part 2 of the Act which established the Victorian Ambulance Board. Clause 6 removes references to the Board and to the Centre and adds the functions of providing education and training for ambulance and related services to the Secretary of the Department of Human Services. Clause 7 provides consequential amendments by removing references to the Board and to the Centre. Clause 8 removes the prohibition on the payment of fees to members of committees of management of ambulance services (other than members of Parliament) by allowing them to be paid remuneration as specified in the instrument of appointment. Clause 9 inserts a new section 20A in the Act providing that a position as a member of a committee of management of an Ambulance Service is not an office of profit under the Crown. Clause 11 repeals Part 6 of the Act which created the Ambulance Officers Training Centre. Clause 13 inserts a new Division 2 in the Act dealing with the abolition of the Board and Centre. Persons holding office in either the Board or Centre cease to hold that office. Offices and employees of the Centre cease to be such an officer or employee. In this respect the Committee notes the comment in the Second Reading Speech:-

51


The Bill does not provide for the transfer of any of the 26 members of staff of the AOTC or their entitlements. This is because it is yet to be determined what involvement any of them will have in the provision of ambulance officer training in the future and, in any event, I understand that such arrangements will be made administratively.

The AOTC staff have been consulted and fully informed of the changes that the Bill will enact. Furthermore, the union representing the staff is both aware and supportive of these changes.

The new Part further deals with the transfer of assets, including certain land, and liabilities respectively vesting in, and becoming the liabilities of the Secretary. Clause 14 amends sections 135 and 136{3) of the Health Services Act 1988 allowing the Minister for Health to use funds from the Hospitals and Charities Fund for the purpose of providing ambulance services education and training. Clause 15 makes consequential amendments to the Emergency Services Superannuation Act 1986.


Melbourne and Olympic Parks (Amendment) Bill

5.1

The Bill was introduced into the Legislative Assembly on the 22 April 1998 by the Honourable Marie Tehan MP with the Honourable Phi! Gude MP.

5.2

The purpose of the Bill is to facilitate the construction of a proposed multi-purpose velodrome by providing for the revocation of reservations of certain lands and to provide for the re-reservation of those lands.

5.3

Clause 5 inserts new sections 25E and 25F making provision for the power to excise additional land from Yarra Park and from Public Park Reserve. The Committee notes the comments in the Second Reading Speech:-

52

If the Government approves the development of a proposed multi-purpose velodrome the Bill will enable the area of land currently set aside under the Melbourne and Olympic Parks Act 1985 as 'National Tennis Centre Land' to be extended to include an additional area of approximately 7.56 hectares which currently forms part of Yarra Park and the adjoining public park reserve.

The multi-purpose velodrome is praposed to be built on 1.4 hectares including 0.9 hectares of the additional/and. The rest of the additional/and will remain as public apen space incorporating parklands, a water feature, plaza and pathways and a re-modelled old scotch oval.

In parallel with the expansion of Melbourne Park there will be an estimated net gain of parkland from other government initiatives in the immediate and adjacent area of


approximt~.tely 14 ha including a new riverside park and Federation Square and the demolition of the army barracks and adjoining former Olympic Park greyhound racing stadium.

5.4 Alteration or variation of section 85 of the Constitution Act 1975 (section 4D(i) and (ii) of the Parliamentary Committees Act 1968)

Clause 6 states that it is the intention of section 26, as amended by the Bill, that no compensation be payable by the Crown in respect of any act or matter or thing done under or arising out of sections 25E and 25F of the Act.

Oause 6(2) further provides that it is the intention of section 26 (as amended) to alter or vary section 85 of the Constitution Act 1975 and limits the jurisdiction of the Supreme Court in relation to that matter. The Committee notes the comment in the Second Reading Speech:-

The reason for altering or varying section 85 of the Constitution Act 1975 to prevent the Supreme Court from awarding compensation against the Crown is as follows -

To enable the Crown to change the use or status of land, it is necessary to ensure that the land is no longer subject to any interests or rights arising out of former uses.

The existence of any interests and rights, and claims for compensation based on them or on the former uses of the land, could delay or prevent a change in the use or status of the land that is for the benefit of the community as a whole.

To facilitate use of the land to which this Bill applies, it is also necessary to provide a mechanism to excise land shown on the plan proposed to be inserted in part 4a of the schedule to the Melbourne and Olympic Parks Act 1985.

The Committee will write to the Minister concerning any current or identifiable users that may have interests or rights affected by the application of the section 85 provision.

International Transfer of Prisoners (Victoria) Bill

6.1

This Bill was introduced into the Legislative Assembly on 29 April 1998 by the Honourable Bill McGrath MP with the Honourable Tom Reynolds MP.

6.2

The purpose of the Bill is to give effect to the scheme for the international transfer of prisoners set out in the International Transfer of Prisoners Act 1997 (Cth), by enabling such prisoners to be transferred to and from Victoria.

53


6.3

Clause 4 authorises any Victorian Minister of State to perform functions conferred or expressed to be conferred on the Minister by or under the Commonwealth Act and provides the power for the Minister to delegate those functions to an "authorised person" as defined by clause 4(3).

Clause 5 authorises police and prison officers and other officials to perform functions under the Commonwealth Act. Clause 6 provides for the Governor in Coucil to make arrangements for the administration of the Act, including arrangements for Victorian officers to perform functions under the Commonwealth Act. Clauses 7 provides that prisoners transferred to Victoria under the Internaticmal Transfer of Prisoners Act 1997 of the Commonwealth are to have the same laws, practices and procedures applied to them as apply to Commonwealth prisoners. Clause 8 relates to the transfer of prisoners from Australia and provides that a Victorian sentence of imprisonment ceases to apply to a prisoner once they are transferred out of Australia under the International Transfer of Prisoners Act 1997 (Cth). Clause 9 is the regulation making power. Clause 10 makes consequential amendments to other Acts.

The Committee notes the comments from the Second Reading Speech:-

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This Bill will open the way for Victoria to join a Commonwealth/State scheme for the international transfer of prisoners.

The scheme will mean that Victorians who are serving terms of imprisonment overseas can in appropriate cases return home to complete their sentences.

The scheme will also allow foreign nationals imprisoned in Victoria to serve their sentences in their home countries.

The Bill complements the Commonwealth International Transfer of Prisoners Act 1997, which contains most of the procedures for the transfer scheme to take effect .....

There are good reasons to promote the transfer of these offenders back to their home countries to complete their sentences.

Victorian prisoners in foreign prisons will one do.y come back to Victoria. Their reabsorption into the community is likely to be much more difficult if they have served their sentences in a foreign country without the apporiunity to obtain skills that may assist them to reintegrate into the community and without contact with their families .

. . . A prisoner must consent to a transfer.

The foreign government, the Federal Gavernment and the Government of Victoria must also agree to the transfer. No one will leave Victoria or be returned to Victoria to serve a sentence without the agreement of the Victorian Minister for Corrections.

Prisoners transferred to Australia are deemed by the Commonwealth Act to be federal prisoners. This is for reasons of administrative convenience. The Commonwealth Attorney-General determines the way in which the sentence of the foreign court is carried out in Australia. The Victorian Gavernment must agree with the Commonwealth Attorney-General's determination before a prisoner can be transferred.


The Commonwealth Act also provides for Australia to accept the transfer of persons sentenced to imprisonment for war crimes committed in the former Yugoslavia and in Rwanda.

Australia has agreed to provide a mechanism for accepting such prisoners to serve their sentences in Australia. The Act has no requirement for "community ties" with Australia, though the intention is that some connection with Australia will be required.

Unlike the general transfer scheme, the war crimes prisoner's consent to the transfer will not be required, though the Victorian Minister for Ccrrections must consent.

We expect very few, if any, war crimes prisoners to be transferred to Victoria.

Victoria has many hundreds more foreign prisoners in its prisons than there are Victorians imprisoned overseas.

Some of these prisoners will want to serve their sentences of imprisonment in their home countries.

There are so many more foreign prisoners in Victoria than there are Victorian prisoners overseas that it is likely that there will be a net outflow of prisoners from Victoria.

This short Bill contains provisions that allow the Commonwealth Act to operate in Victoria. The passage of legislation is only a first step.

Once all the States have passed legislation, the Federal Government will negotiate transfer treaties with foreign countries. Administrative arrangements will have to be entered into with the Federal Government. Once these treaties and administrative arrangements are in place, transfers will then be possible.


Parks Victoria Bill

7.1

The Bill was introduced into the Legislative Assembly on 8 April 1998 by the Honourable Marie Tehan MP with the Honourable Pat McNamara MP.

7.2

The purpose of the Bill is to establish Parks Victoria as a public authority creating an organisation able to deliver park management services for the State's parks, reserves and open space and other related management functions. The Committee notes the comments in the Second Reading Speech:-

The new authority will largely comprise the former staff of Melbourne Parks and Waterways and the service delivery staff of the former National Parks Service in the Department of Natural Resources and Environment. Specified staff will transfer to Parks Victoria, with the terms and conditions of their previous employment fully

ss


7.3

protected. Parks Victoria will continue to play a vital role in fire protection and suppression across the state.

Clause 4 establishes Parks Victoria as a body corporate. Clause 5 The new authority created does not represent the Crown. Clauses 6, 7 and 8 respectively set out the membership functions and powers of Parks Victoria. Oause 9 enables Parks Victoria and the Director-General or Secretary to the Department of Natural Resources and Environment to enter into arrangements relating to the prevention and suppression of fire. Clause 10 enables the minister to give directions in relation to the performance of the functions or exercise of the powers of Parks Victoria. Clause 11 is the delegation enabling provision. Clauses 12 to 22 are machinery provisions relating to the Board, it's Chief Executive Officer, staff and corporate plans. Part 3 relates to staff transfers, transitional provisions and makes consequential amendments.


Fundraising Appeals Bill

8.1

The Bill was introduced into the Legislative Assembly on 29 April 1998 by the Honourable Jan Wade MP with the Honourable A1an Stockdale MP.

8.2

The purpose of the Bill is to better regulate fundraising appeals from the public for noncommercial purposes. The Bill repeals the Fundraising Appeals Act 1984. The Committee notes the comment in the Second Reading Speech:-

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The Fundraising Appeals Act 1984 lays down a framework under which fundraisers are made accountable for money donated for a range of charitable and community purposes by the citizens of Victoria. As time has passed, certain deficiencies in the legislation have become apparent. It is these deficiencies which the Bill before this House seeks to address.

In essence the Bill seeks to ensure public confidence in this important industry is maintained.

This Bill will ensure that fundraisers, seeking donations from the public, apply appropriate standards in relation to the handling and banking of monies, and produce and keep adequate records to show from where funds have been raised and how they have been expended.


8.3 Partl

Oause 4 applies the new Act to an incorporated association and to each member of an unincorporated organisation. The Committee notes the comments in the Second reading Speech:-

Although the differentiation between exempt and non exempt persons and bodies is maintained in this Bill, the number of groups exempted has been reduced. The Bill will make a number of bodies, previously exempt under the current Act, subject to reporting and recordkeeping requirements. These groups include incorporated associations, sporting bodies, companies and organisations for which the $2 Tax deductibility on donations applies. Some of these bodies have caused problems under the existing Act and pose an unnecessary risk to the donating public because they are not required to record the receipt or expenditure of donations. It is therefore considered appropriate to tighten the safeguards and impose more stringent recordkeeping requirements on such bodies to ensure public accountability in this area.

Oause 5 provides a definition of the term "fundraising appeal" and clause 5(3) defines certain activities as not being fundraising appeals. Oause 6 provides a definition of "conduct" a fundraising appeal.

8.4 Part2

Makes provision for standards of conduct to apply to all fundraising appeals such as false statements, requirement for identification badges, requirements for clothing bins, conduct of paid phone canvassers, letters to disclose certain information etc. In the case of false statements the penalty provisions are increased from a maximum of 50 penalty units or two years imprisonment under the old legislation (section 35), to 240 penalty units for corporations to 120 penalty units for individuals or 12 months imprisonment or both. (clauses 7 and 8)

8.5 Part3

Makes provision for particular fund raising appeals. Oause 16 provides for the exemption from the operation of the Part for particular types of fundraising organisations including registered political parties, religious organisations, registered trade unions, state schools, hospitals and universities or other tertiary institutions. Clause 17 creates an offence to conduct an unauthorised appeal and imposes differentiated penalties for corporations and individuals the same as in clause 7 (above). Clause 18 requires a person intending to conduct an appeal to give the Minister notice of intention at least 28 days before the start of the appeal. Clause 19 requires the beneficiaries of the appeal to consent to the conduct of the appeal. Clause 20 the Minister may approve or veto the intended appeal. Oause 22 makes provision for the urgent grant of a permit to hold an appeal. Clause 24 provides for an appeal from a decision of the Minister to the Administrative Appeals Tribunal. Clauses 25 to 27 relate to the conduct of appeals according to any conditions imposed by the Minister. Clauses 28-31 concern the keeping of accounts and records with respect to appeals. Clause 32 provides for the audit of accounts and records. Clause 33 concerns the public inspection of accounts and records.

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8.6 Part4

Deal with the power of the Magistrates' Court under the Act. Clause 34 provide that the Court may order a person to stop conducting an appeal. Clause 35 allows the Court to make a temporary order without notice. Oause 36 allows the Court to make orders concerning wrongly obtained assets. Clause 37 allows the Minister to refer a matter to the Court for answer.

8.7 Part 5

Clause 44 allows the Minister to require a person to give any information or document that the Minister considers necessary to determine whether there has been compliance with the Act. A person must comply with the request. Penalty 240 penalty units for a corporation 120 penalty units in any other case or imprisonment for 12 months or both. [see also clause 60 below]

Clause 45 enables the Secretary to appoint inspectors to conduct inspections for the purposes of the Act. Clause 46 empowers inspectors to enter any relevant business premises to conduct searches to monitor compliance with the Act. Clause 46(5) an inspector may not enter a residence unless the occupier of the residence has consented in writing to the entry and the carrying out of the search. The Committee notes the comments in the Second Reading Speech:-

The Bill authorises inspectors to enter and view records required to be kept under the Act at business premises during business hours. Hawever, inspectors may only enter a residence with the consent of the occupier. If the occupier refuses this request, inspectors will only be able to search for and inspect records by obtaining a search warrant.

Clause 47 relates to searches of premises with the consent of the occupier. Clause 49 makes provision for issue of search warrants on application to a Magistrate. Clause 56 makes provision for compensation to be paid for damages caused during an inspection other than an inspection revealing a contravention to the Act. Clause 60 provides:-

Protection against self-incrimination

(1) A person is not excused from giving information, producing a document or doing any other thing that the person is required to do by or under this Act on the ground that the information, the production of the document or the doing of the other thing would tend to incriminate the person.

(2) Hawever, if the person claims, before giving any information, producing any document or doing any other thing, that the information, the production of the document or the other thing might tend to incriminate the person, the information, document or evidence of the doing of the thing is not admissible in evidence against the person in criminal proceedings, other than in proceedings in repect of the falsity of the information.

8.8 Part6

Clause 62 apply penalties for false staements and information made or given under the Act. Clause 63 provides that that for the purpose of the Act in the case of a person who is an incorporated association or an unincorporated organisation, (a) any requirement can be made of the association or organisation; and (b) any notice or other document

58

Alert

can be given to the association or organisation - by making it of, or giving it to, the designated person (defined in section 3), of the association or organisation.

Clause 68 makes directors and officers of corporations liable for certain offences committed by a corporation where the offence is proved to have been committed at the instigation of, or with the active consent or connivance of, or to have been attributable to any wilful neglect on the part of the officer of the corporation.

Clause 69 enables the Minister to delegate any of his or her powers under the Act other than the power to delegate, to any officer of the public service. Oause 71 the Governor in Council may make regulations. Clause 72 makes transitional provisions, and clause 73 repeals the former Act, the Fundraising Appeals Act 1984.


Land Tax (Amendment) Bill

9.1


9.2

The purpose of the Bill is to amend the Land Tax Act 1958 to introduce an exemption from land tax for land used as a person's prindpal place of residence.

9.3

Clause 5 inserts a new Part ITA in the Act giving effect to the drcumstances in which the exemption will apply. A partial exemption will apply where the land is also used for business activities. Clause 7 amends section 45 of the Act and clarifies the assessment and liability of joint owners. A new section 45A provides for a joint assessment in the case of such land being used as a prindpal place of residence. By way of background the Committee notes the comments in the Second Reading Speech:-

The changes in the rates and threshold were contained in the Land Tax (Amendment) Act 1997 passed by Parliament in the Spring sittings. This Bill now introduces the amendments required to give effect to the principal place of residence exemption.

The exemption will be available to any natural person who uses the land they own as their principal place of residence, including any adjoining or contiguous lots which are part of the same parcel of land, provided that those lots are used to enhance the residence and are used solely for the private use and benefit of the residence.


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Catchment and Land Protection (Amendment) Bill

10.1

The Bill was introduced in the Legislative Assembly on 28 April1998 by the Honourable Marie Tehan MP with the Honourable Robin Cooper MP.

10.2


• to establish the Victorian Catchment Management Council;

• to abolish the Pest Animal Advisory Committee;

• to re-name Regional Catchment and Land Protection Boards as Catchment Management Authorities;

• to validate the establishment and operation of Regional Catchment and Land Protection Boards under the Catchment and Land Protection Act 1994 and their appointment and operation as Authorities under the Water Act 1989; and

• to amend the Catchment and Land Protection Act 1994, the Water Act 1989 and to make consequential amendments to other Acts.


10.3

In 1997 the Government reviewed its catchment management arrangements. The impetus for the review was a desire to further strengthen the partnership between government and regional communities within ten natural resource management regions in Victoria, established under the Catchment and Land Protection Act 1994. This Act provides for regionally based boards with members with relevant expertise in land and resource management to advise on the strategic directions for integrated management of the catchment.

Clause 5 substitutes a new Division 1 and inserts a Division lA of Part 2 of the Act and establishes the Victorian Catchment Management Council. Clause 10 inserts new sections 99 to 103 in the Act and provides for the establishment of Catchment and Land Protection Boards. Oause 12 inserts a new section 114 and 115 in a new Division 6 Part 6 of the Water Act 1989 providing that the effect of instruments referred to in Schedule 3 of the Act (as inserted by schedule 3 of this Bill) is that particular Catchment Management Authorities referred to in the Schedule have conferred on them the management and control of those waterway management districts under the Water Act 1989 which are in the Schedule. The Authorities are deemed to have exercised those powers from the date of the instruments.

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~ Committee notes that the proposed sections 114 and 115 operate retrospectively. ~ Committee will write to the Minister to request information concerning any persons rights that may be detrimentally effected by the retrospective validation of actions taken by certain authorities as a consequence of these amendments, and how a right of appeal would be dealt with or provided for in relation to a person so effected.


Rail Corporations (Amendment) Bill

11.1

The Bill was introduced into the Legislative Assembly on 22 April 1998 by the Honourable A1an Stockdale MP with the Honourable Robin Cooper MP.

11.2

The purposes of the Bill are to amend the Rail Corporations Act 1996 and the Transport Act1983:-

• to establish a new statutory corporation to operate rural rail passenger services;

• regulate access to certain rail or tram infrastructure and facilitate the entering into of certain leasing arrangements in respect of rail or tram infrastructure;

• enable binding Ministerial directions to be given to rail corporations; and

• provide for the appointment of an Administrator to the Public Transport Corporation.

11.3

Clause 6 inserts a new section 7 A and 7B into the Act Section 7 A allows V /Line Freight, by written notice, to require the owner or occupier of any land to fell and remove any tree or wood on that land that is within 60 metres of a railway track that could obstruct or endanger the railway track or obstruct a view of a signal box. If the owner or occupier does not comply the clause enables V /Line Freight to enter the land and carry out the work specified in a written notice and to recover costs from the owner or occupier for carrying out the work. Section 7B further provides that V /Line Freight is not obliged to fence or contribute to the fencing of any portion of a railway and is not liable for any damage caused by reason of any railway not being fenced in or fenced off. The requirement to provide or maintain fencing is discretionary.

Clause 7 inserts a new Division 2E in Part 2 of the Act establishing the V /Line Passenger Corporation. The same provision in repect to fencing also apply to V /Line Passenger Corporation. (see clause 6 above)

Clause 10 inserts a new Part 2A in the Act establishing a third party access regime for declared rail transport services. The new part provides that it is "relevant legislation"

61


for the purposes of the Office of the Regulator-General Act 1994 and that railways and rail infrastructure and tramways and tram infrastructure are a regulated industry. Rail transport services are declared for the purposes of Part 2A by the Governor in Council on the recommendation of the Minister (new section 38C). Determinations made by the Office of the Regulator-General for the purposes of the new Part 2A cannot be appealed against. (new section 38R) The new section 38R declares that the operation of the Part is intended to have extra-territorial effect in relation to (a) railways and rail infrastructure situated outside Victoria; (b) a rail transport service operating outside Victoria. (38R)

Clause 11 inserts a new section 60A in the Act allowing the Governor in Council to confer certain powers with respect to the clearance of trees, on persons who have leased rail infrastructure or tram infrastructure from Victorian Rail Track, the Public Transport Corporation or the Secretary to the Department of Infrastructure.

11.4 Alteration or variation of section 85 of the Constitution Act 1975 (section 4Db(i) and (ii) of the Parliamentary Committees Act 1968)

Clause 13 declares that it is the intention of the new section 38Q to alter or vary section 85 of the Constitution Act 1975. The Committee notes the statement made in the Second Reading Speech:-

Clause 13 states that it is the intention of the new section 38Q of the Rail Corporations Act 1996, as proposed to be inserted by clause 10 of this Bill, to alter or vary section 85 of the Constitution Act 1975. This has the effect of preventing the Supreme Court from reviewing determinations of the Office of the Regulator-General made pursuant to this Bill.

The reasons for varying section 85 of the Constitution Act 1975 are to ensure that access to the rail and tram infrastructure cannot be delayed or jeopardised through the inherent time delays involved in an appeal to the Supreme Court for review of the Regulator General's determination. This is necessary to ensure that the introduction of new transport services is not delayed nor threatened. Removing the ability to review the Regulator's determination also removes the potential for operators to constantly seek review of access terms and conditions in the hope of obtaining more favourable determinations.


11.5

Clause 15 inserts a new Division 3A in Part II of the Transport Act 1983 providing for the appointment of an Administrator and Deputy Administrator of the Public Transport Corporation and sets out their respective functions and powers.


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Alert 1998

National Parks (Amendment) Bill

12.1

The Bill was introduced into the Legislative Assembly on 8 April 1998 by the Honourable Marie Tehan MP with the Honourable )an Wade MP.

12.2

The purpose of the Bill is to amend the National Parks Act 1975 and to make other related provisions. The Committee notes the comments in the Second Reading Speech:-

12.3

The National Parks (Amendment) Bill establishes the secretary, on behalf of the Government, as the purchaser of park management services from Parks Victoria for those areas managed under the National Parks Act. Parks Victoria will continue to manage the state's national parks under these arrangements.

In doing so, the secretary assumes most of the Director of National Parks' functions and powers under the National Parks Act. The Director will have a key role to advise the Minister and secretary on the management of parks, including, but not limited to, parks policy, management plans and agreements relating to the management of parks. The National Parks Advisory Council will also remain as an advisor to the Minister.

Clause 10 inserts a new Part in Schedule Two- National Parks, thereby creating Terrick National Park.


Public Correctional Services Authority Bill

13.1

The Bill was introduced into the Legislative Assembly on 29 April 1998 by the Honourable Bill McGrath MP with the Honourable Tom Reynolds MP.

13.2

The purpose of the Bill is to establish the Public Correctional Services Authority and to make consequential amendments to the Corrections Act 1986 to provide for the role of the new Authority in relation to the provision of correctional services. The Committee notes the comments in the Second Reading Speech:-

The establishment of a public authority will:

• Separate the service provider from the service purchaser and policy maker (Department of justice) and Regulator (Correctional Services Commissioner);

63


• Result in a mare "Level Playing Field" between private prison operators and the public sector correctional agency;

• Enable the authority to operate in a more business like manner under a board of management; and

• Compete with the private providers on a competitively neutral basis.

13.3 Part2

Clause 4 establishes the Public Correctional Services Authority. Oauses 6, 7 and 8 respectively set out the objectives, functions and powers of the Authority. The Committee notes the comments in the Second Reading Speech:-

The objectives of the authority are spelt out in the Bill. They are to:

• protect the community through the provision of correctional services; and

• supervise and manage prisoners and other persons under its control (i.e those undertaking community based orders) in a safe, secure, human and just manner.

13.4 Part2

Clauses 4 to 13 establish the Public Correctional Services Authority and set out it's objectives, functions and powers.

13.5 Part3

Clauses 14 to 20 concern corporate plans and reports to be prepared and followed by the Authority. Oause 20 provides that the Secretary to the Department of Justice must cause a review to be made of the performance and operations of the Authority by 30 June2001.

13.6 Part4

Oauses 21 to 25 contain transitional provisions concerning staff transfers from the Public Service to the Authority. The Committee notes the comments in the Second Reading Speech:-

Existing staff will be transferred to the authority through a written ministerial designation process. The terms and conditions of the transferred staff will be no less favourable than those they enjoyed in the public service. Similarly, all their existing and accrued entitlements, including superannuation entitlements, will be preserved.

13.7 PartS

Make consequential amendments to the Corrections Act 1986. Clause 31 inserts a new Part 2A in that Act and sets out the role of the Authority. New section 9N provides that the Secretary must request a report from the Chief Commissioner of Police into an employee's character before authorising the employee to exercise any functions or powers.

Clause 36 substitutes a new section 45(1)(b) relating to searches in prisons. The amendment made by the Bill creates a power to search a person authorised to exercise

64


functions or powers under section 9A or 9M of the Corrections Ad 1986. The existing Act provided inter alia, that an officer could be searched by a prison officer which was defined in section 14 and did not encompass persons authorised under section 9A and thenew9M.


State Taxation (Amendment) Bill

14.1


14.2

The purpose of the Bill is to amend the Financial Institutions Duty Act 1982, the Debits Tax Act 1990, the Pay-roll Tax Act 1971, the Taxation Administration Act 1997, the Taxation (Reciprocal Powers) Ad 1987 and the Racing Act 1958.

14.3

Oause 3 amends section 3(1) of the Debits Tax Ad 1982 and has the effect of exempting a debit from the operation of that Act where the debit is due solely to the closure of an account due to the closure, amalgamation or restructure of a branch of a financial institution.

Clause 6 insert into the Pay-roll Tax Act 1971 definitions of "coastal waters of Victoria" and "Victoria". The effect of these insertions extends the area of Victoria to which the Act applies to include the coastal waters over which Victoria has jurisdiction in consequence of the Coastal Waters (State Powers) Act 1980 (Cth). The Committee notes the comments in the second Reading Speech:-

The Bill also amends the Act to make clear thilt "wages" which are earned within the coastal waters of Victoria will be assessable for pay-roll tax. This will prevent the future avoidtznce of pay-roll tax on earnings within the coastal waters and is consistent with the pay-roll tax legislation in other States.

The Committu will write to the Minister concerning the retrospective operation of the proposed section 6 intended tc be introduced by the Bill.

Clause 8 amends the Act in relation to exemptions from pay-roll tax to wages paid or payable in respect of services performed outside Australia. The Committee notes the comment in the Second Reading Speech:-

The exemption is amended to apply only to wages in respect of services performed wholly in another country. The effect of this chilnge is thilt services performed in waters beyond the three nautical mile coastal limits are not exempted. This chilnge also ensures thilt the Victorian legislation is consistent with the pay-roll tax legislation in other States.

65


Further amendments clarify the effect of the six month period specified in the exemption. Where wages are paid for services performed wholly in another country for a period longer than six months, the exemption applies only to those wages paid for services which are rendered after the expiration of the initial six month period after those wages were first paid or became payable. The wages paid or payable for the first six months, in respect of services performed wholly in another country, remain assessable to pay-roll tax.

The Committee notes the amendment is deemed to apply retrospectively from 1 January 1998.

Clause 9 provides for a reduction in the rate of pay-roll tax from 6.25% to 6%.

Clause 10 provides for the abolition of rebates for bookmakers, turnover tax collected at metropolitan race meetings. The rebates in respect to country race meetings are unchanged by the Bill.

Clause 11 amends the Stamps Act 1958 and provides an exemption from stamp duty on the transfer of a family farm. The committee note the comments in the Second Reading Speech:-

This Bill also introduces further amendments to section 71 of the Stamps Act 1958, which provides an exemption from stamp duty on the transfer of a family farm. Honourable members will recall that amendments were made to this exemption in the Spring sittings last year. The provisions introduced last year have been the subject of extensive consultation and discussion with legal practitioners and the fanning community. That consultation identified a number of areas of genuine concern to farmers about aspects of the new provisions. These concerns have been carefully analysed by the Government, which has sought to ensure that the exemption provides fair relief from duty on the transfer of farms to younger generations without undue complexity.

Clause 12 amends the Stamps Act 1958 and changes the threshold for stamp duty relief for first home buyers and pensioners, and the lifting of the threshold at which conveyancing duty reaches the maximum marginal rate. The amendments have necessitated the recalculation of several formulae under the Act which are included in the Bill.

Clause 13 amends the Table under Heading VI in the Third Schedule to the Stamps Act 1958 to increase the threshold at which stamp duty on the conveyance of real property and land transfers rises to 6% from $100,000 to $150,000 and to adjust the thresholds in item 4 from $760,000 to $870,000.

Oause 15 amends the Taxation Administration Act 1997 by substituting a new section 108 enabling a taxpayer to request a review or appeal of a dedsion of the Commissioner of State Revenue, whether or not the disputed tax has been paid. The Commissioner may apply to the Supreme Court for an order that the tax be paid before an appeal or review proceeds. Clause 17 amends the Taxation (Reciprocal Powers) Act 1987 by inserting a new section 3A providing the Governor in Coundl may, by Order in the Gazette declare that, a law of another State or Territory or of the Commonwealth, which is a revenue law within the meaning of an Act of that other jurisdiction, may be declared to be a declared revenue law for the purposes of the Act. The new section further provides that an office under a law of the other jurisdiction can be declared to

66


be a declared office in relation to that revenue. The Committee notes the comment in the Second Reading Speech:-

The second amendment allows Victorian revenue authorities to provide information or amy out investigations for the purpose of legislation in other States governing refunds to taxpayers of revenue collected by the Commonwealth and paid to States under the usafety net" legislation enacted by the Commonwealth following the High Court decision which cast doubt on the validity of State franchise fees. Several States, including Victoria, make refunds to taxpayers where the revenue received from the Commonwealth exceeds the revenue previously raised by a State under its former franchisee fee.

This amendment applies to the refund legislation similar arrangements for interstate cooperation on revenue matters as previously applied under the former franchisee fee legislation. It is in the interests of all States concerned to co-operate to prevent abuse of the refund legislation.


Local Government (Amendment) Bill

15.1

The Bill was introduced into the Legislative Assembly on 22 April 1998 by the Honourable Phil Gude MP on behalf of the Honourable Rob Maclellan MP "With the Honourable Jeff Kennett MP.

15.2

The main purposes of the Bill are to amend the Local Government Act 1989:-

• to enable certain extraordinary vacancies on particular Councils to be filled by a countback of votes obviating the need for a by-election;

• to make various other minor changes to the electoral provisions of the Act; and

• to ensure local laws comply "With National Competition Policy principles.

15.3

Clause 4 provides that electoral rolls must be updated for by-elections but only for the relevant ward or wards. Clause 5 and 6 clarifies election dates for all Councils.

Clause 7 inserts a new section 37A into the Act providing for the filing of an extraordinary vacancy of a district-wide elected councillor by a countback of the votes cast at the election at which the departing councillor was elected. The countback is to be conducted by the Returning Officer who conducted the election. The Committee notes the comments in the Second Reading Speech:-

For some time concern has been expressed about the requirement for a by-election to fill an extraordinary vacancy of a district wide councillor on the Melbourne City Council. It

67


has been argued by a number of organisations, including the Australian Electoral Commission, that the holding of a by-election is inappropriate because it is inconsistent with the principles of proportional representation and with accepted methods of filling an extraordinary vacancy where a proportional representation system applies. It has also been noted that the costs necessarily involved are excessive. I draw members' attention to the fact that the by-election in February this year to fill the extraordinary vacancy created by the resignation of Councillor Bardas cost the Melbourne City Council around $2.50,000.

Recently the Greater Geelong City Council was elected on the same basis as the Melbourne City Council, that is 5 councillors elected at large by proportional representation and 4 ward councillors were elected by the 'first past the post' method. The same concerns which have been raised at the Melbourne City Council could similarly be raised at the Greater Geelong City Council.

It is proposed to introduce a countback of votes to fill an extraordinary vacancy of an at large councillor. The system is used for the Act and Tasmanian parliamentary elections, for council elections in Tasmania and Western Australia and for ATSIC regional council casual vacancies. In making these changes the Government has adopted proposals put to it by the Melbourne City Council and the Australian Electoral Commission. The proposals are the result of extensive research and consultation with interested parties.

Oause 8 extends the mandatory time for the holding of a by-election from 60 to 90 days from the occurrence of the extraordinary vacancy. The Committee notes the comments in the Second Reading Speech:-

The Act currently requires that a by-election be held within 60 days of an extraordinary vacancy. In practice many councils have sought an extension of time for a by-election as they have been unable to meet the 60 day deadline or it falls on an inappropriate day such as boxing day, grand final day of the day of a state or federal election. Moreover the electoral roll is now only required to be updated at the time of council elections and where a poll is to be conducted. This means that a roll could well be more than two years out of date at the time of a by-election.

It is accordingly proposed to introduce amendments requiring that a by-election be held 90 days after an extraordinary vacancy. Further, the electoral roll will be required to be updated for all by-elections unless the by-election is to be held at the same time as a general election. These proposals should allow councils sufficient time within which to conduct the by-election and to update the roll.

Clause 9 amends section 70 and has the effect of excluding a vacating Councillor from the countback process introduced by clause 7. Clause 10 provides that the regulations may require Councils to include in their corporate plans specified performance measures.

Clause 14 provides that names of political parties or other allegiances must not be referred to on any ballot-paper.

Clause 15 restricts the class of persons who may be appointed a scrutineer and provides that a person cannot be appointed a scrutineer if he or she is a person appointed by the State Electoral Office, the Australian Electoral Commission or another Council to be involved in the conduct of the election if that Office, Commission or Council has been appointed to conduct the election.

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Clause 16 provides that a disadvantaged voter may ask for assistance with postal voting and may nominate an authorised person to complete a required certificate or declaration on the voter's behalf. The current voter assistance provision relate only to the marking of the ballot-paper itself.

Clause 17 restricts the number of recounts of votes that may take place to one at the instigation of the returning officer and one at the request of any candidate or his or her scrutineer. Clause 19 inserts a new schedule 3A into the Act making provision for the countback method of filling vacancies introduced by clause 7.

Clause 20 amends the Act to ensure that Council's local laws comply with National Competition Policy principles. Where in the opinion of the Minister local laws breach the National Competition Policy principles the law may be revoked by recommendation of the Minister to the Governor in Council, after consultation with the relevant council concerned with the breach. The Committee notes the comments in the Second Reading Speech:-

This Government has 1TIIU1e a commitment to comply with National Competition Policy (NCP) and has signed an agreement which also applies to local government. In particular the Victorian Government statement on the application of National Competition Policy to local government provides that from 1 July 1997 all new local laws made by councils must comply with competition principles and all existing local laws must be reviewed for compliance by June 1999.

The Bill amends the Act to ensure that councils' local laws comply with the NCP principles and extends the grounds for revocation of a local law to include noncompliance with the principles.

In this way, councils will necessarily be more accountable to their communities as, prior to introducing a local law, councils will need to ensure that the local law does not restrict competition unless it can be demonstrated that the benefits of the restriction to the community as a whole outweighs the costs, and that the objectives of a local law can only be achieved by restricting competition.


Physiotherapists Registration Bill

16.1

The Bill was introduced into the Legislative Assembly on 22 April 1998 by the Honourable Denis Napthine MP with the Honourable Phil Gude MP

16.2

The purpose of the Bill is to provide:-

• for the registration of physiotherapists;

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• for investigations into the professional conduct and fitness to practise of registered physiotherapists;

• to regulate the advertising of physiotherapy services;

• for the establishment of a Physiotherapists Registration Board of Victoria and the Physiotherapists Registration Board Fund; and

• to repeal the Physiotherapists Act 1978.

16.3 Part 1

Clause 3 deals with definitions, and provides for the first time in the Act a statutory definition of "unprofessional conduct" included to mean, ... (h) the finding of guilt of {i) an indictable offence in Victoria or an equivalent offence in another jurisdiction; or (ii) an offence where the physiotherapist's ability to continue to practise is likely to be affected because of the finding of guilt or where it is not in the public interest to allow the physiotherapist to continue to practise because of the finding of guilt; or (iii) an offence under this Act or the regulations; or (iv) an offence as a physiotherapist under any other Act or regulations.

16.4 Part2

Clause 5 deals with qualifications necessary to obtain registration. Clause 8 entitles an applicant to make submissions to the Board regarding a refusal to grant an application or limitation or restriction imposed in the grant of an application. Clause 15 requires the Board to keep a register of all physiotherapists granted registration.

16.5 Part3

Concerns investigations into professional misconduct. Clause 24 enables the Board to suspend registration pending the outcome of an investigation. A similar provision exists in the current section 17AB. Clause 25 empowers the Board to conduct an investigation into the physical or mental health of a physiotherapist. Clauses 34 to 44 provide for formal and informal hearings following investigations. Clause 45 and 46 make provision for findings and determinations into conduct and ability to practise that can be made after a formal hearing.

16.6 Part4

Clause 55 provides for review by the Administrative Appeals Tribunal.

16.7 PartS

Deal with offences. Clause 57 and 58 concern false and fraudulent claims by unregistered and registered physiotherapists providing penalties of up to 240 penalty units or two years imprisonment or both. The former provision was 10 penalty units or 12 months imprisonment or both. Clause 59 deals with false, misleading and deceptive advertising.

16.8 Part6

Establish the Physiotherapists Registration Board as a body corporate. Clauses 61 to 75 sets out the Boards powers functions and membership.

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16.9 Part7

Oause 76 provides for the establishment of a Physiotherapists Registration Board Fund from which the Board must pay its costs expenses.

16.10 PartS

Provide for enforcement and supplementary powers. Oause 81 provides powers of entry with a search warrant obtained on application to a Magistrate.

16.11 Part 9 - Alteration or variation of section 85 of the Constitution Act 1975 (section 4D{b )(i) and (ii) of the Parliamentary Committees Act 1968)

Clause 86 declares that it is the intention of section 52(3) to alter or vary section 85 of the Constitution Act 1975.

Clause 52(3) provides "No action for defamo.tion lies against the Board or its members for giving a notice under this section."

Pursuant to section 52(1) of the proposed Act the Board must, after the giving of a determination by an investigatory panel, give notice of the determination in the Government Gazette, to other physiotherapy authorities in all other States, Territories and in New Zealand, to the Health Services Commissioner, to the persons employer (if applicable), and to an overseas physiotherapy authority, if that authority has requested information regarding that physiotherapist.


Clause 52(1) requires the board to notify any determination to impose conditions, limitations or restrictions on the practice of a physiotherapist, suspend or cancel the registration of a physiotherapist.

The purposes of the Act will not be fulfilled if physiotherapists whose practice has been restricted or who have been suspended or deregistered can continue to practise either in Victoria or elsewhere because notice of the board's action has not been communicated to the relevant authorities. This provision is essential to ensure that the board and its members can communicate vital information to the relevant authorities without the threat of civil action for defamo.tion against them.


Oause 87 provides for the regulation making power.

16.12 Part 10

Clause 89 repeals the 1979 Act. Clauses 90 to 95 provides for transitional provisions for the new Board succeeding the old Board.


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Gas Industry (Amendment) Bill

17.1


17.2

The purpose of the Bill is to make proVlSton regulating certain anti-competitive conduct, to restrict cross-ownership in the gas industry and to make other amendments to the Gas Industry Act 1984. The Committee notes the comments in the Second Reading Speech:-

17.3

The Bill principally introduces amendments to the Gas Industry Act 1994 (the Act) designed to prevent significant producers from engaging in anti-competitive conduct and creates a cross ownership regime which will ensure that after privatisation the structure of the gas industry in Victoria remains competitive.

The significant producer provisions of the bill target suppliers of gas to the Victorian wholesale gas market who have the ability to exercise power in that market. Significant producers are prohibited from engaging in conduct which discriminates among gas retailers in a manner which has the purpose, or has or is likely to have the effect, of substantially lessening competition in a Victorian gas market. One aim of this provision is to ensure that significant producers do not engage in anti-competitive conduct which creates disincentives for gas retailers to seek alternative sources of gas supply. The Office of the Regulator General will oversee and enforce these provisions by the investigation of complaints and issue of orders where appropriate.

The bill also establishes cross ownership restrictions on participants in the gas industry. The purpose of this cross ownership regime is to avoid the competitive structure established for the industry prior to privatisation being diminished by subsequent merger activity. In order to achieve this, the BiU establishes a number of prohibitions on industry participants which prevent participants from holding prohibited interests in certain other industry participants.

Clause 5 inserts a new section se defining the meaning of J substantial degree of power' in a market. Clause 6 dissolves the Gas Transmission Corporation. Clause 12 inserts a new Part 3A into the Act establishing a regime designed to prevent a significant producer from engaging in anti-competitive conduct by discriminating among gas retailers in a manner that has the purpose of substantially lessening competition in the market.

17.4 Alteration or variation of section 85 of the Constitution Act 1975 (section 4D(b)(i) and (ii) of the Parlitl.mentary Committees Act 1968)

Clause 31 inserts a new section lOlB in the Act and declares that it is the intention of sections 45A and 45Z (to be inserted by clause 12 of the Bill) to alter or vary section 85 of the Constitution Act 1975.

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Clause 12 inserts a new section 45A into the Act providing that proceedings may not be brought by way of administrative review or before the Supreme Court by way of prerogative relief, against any person, whether on the ground of absence of jurisdiction or on any other ground, in respect of a decision to issue a competition notice or any act, matter or thing incidental to or leading to the making of such a decision. Further the new section 45Z provides that no proceedings may be brought in respect of a decision or determination of the Office of the Regulator General (ORG) or of an appeal tribunal or in respect of any process leading to such a decision or determination, except as provided by Part 3A. The Committee notes the comments in the Second Reading Speech:-

The reason for limiting the jurisdiction of the Supreme Court in the manner referred to in sub-clauses 45A and 45Z is that the bill provides for a specialist appeals tribunal to hear appeals on certain matters arising under Part 3A. The commercial nature of the industries to be regulated requires that appeals be heard and decided as quickly as possible. It is considered that this specialist appeals mechanism would satisfy the requirements for appellants to be given a fair hearing and for a considered decision on any appeals to be made. An aggrieved party may apply to the Supreme Court for a review of a decision of the appeal panel on certain limited grounds.

Clause 12 further provides new section 45L which constitutes an appeal tribunal consisting of three persons appointed by the Minister administering the Office of the Regulo.tor-General Act 1994. Section 45M allow for regulations to govern the procedure of the appeal tribunal. 45H provides that where ORG has issued a competition notice relating to a person it may make an order requiring the payment of a fine to the Consolidated Fund of up to $10,000,000.

Clause 12 further inserts a new section 45Q permitting a party access to the Supreme Court to review a decision by the appeal tribunal on a question of law or on a question of pecuniary penalty issued pursuant to section 45H. Further the new section 45S and 45U allow a person to seek an injunction or declaratory relief respectively, from the Supreme Court, in the event of a contravention or proposed contravention of the competition rule. Section 45T also permits the recovery of damages suffered by a person as a result of the conduct of another person arising from the anti-competitive conduct of that other person.

The Committee is of the vi£W that the proposed section 85 provision is appropriate and desirable in all the circumstances.

17.5

Clause 15 inserts a new section 48BA in the Act providing that a person is prohibited from providing services as a market participant by means of the Port Campbell underground facility unless they hold an appropriate licence. Clause 24 amends section 52 of the Act containing a provision that gas pipelines used for the conveyance of gas for sale by retail are not subject to local government rates. Clause 34 inserts a new Part 15 in the Act and establishes a cross-ownership regime for the gas industry providing that certain interests in gas companies be prohibited interests, and for the forced divestiture of those interests. Clauses 35 to 38 provide for consequential miscellaneous amendments to the Electricity Industry Act 1993.


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Miscellaneous Acts (Omnibus No. 1) Bill

18.1

The Bill was introduced into the Legislative Assembly on 22 April 1998 by the Honourable Jan Wade MP with the Honourable Phil Gude MP.

18.2

The purpose of the Bill is to make miscellaneous amendments to various Acts:-

• AuditAct1994;

• Children and Young Persons Act 1989;

• Confiscation Act 1997;

• Crimes (Mental Impairment and Unfitness to be Tried) Act 1997;

• Gaming Machine Control Act 1991;

• Gaming No. 2 Act 1997;

• Magistrates' Court Act 1989;

• Port Services Act 1995;

• Public Sector Superannuation (Administration) Act 1993; and

• Wills Act 1997.

18.3 Amendments to the Audit Act 1994

Clause 2(2) provides that the amendment in clause 3 is deemed to have come into operation on 16 December 1997, being the date on which the original section 7F took effect.

Oause 3 amends section 7F(2) of the Act to alter the requirements concerning the qualifications of the directors of Audit Victoria. The new provision requires that seventy five percent of the directors must be members of the Australian Society of Certified Practising Accountants or the Institute of Chartered Accountants in Australia.


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The Act currently requires that seventy five percent of the members of the board hold practicing certificates from either the Australian Society of Certified Practicing Accountants or the Institute of Chartered Accountants in Australia.

However the requirement that board members hold a practicing certificate has presented a practical difficulty, in that while four of the five directors are either fellows or members of the Australian Society of Certified Practicing Accountants, and/or the Institute of Chartered Accountants in Australia, they do not hold practising certificates.

Alert

The Act is therefore to be amended to require 75 percent of the directors to be members of one of the accounting societies.

The House will note that appointments to the board were made by the Governor in Council on 3 March, and that the Auditor General was consulted before the appointments were made.

The Committee notes the retrospective operation of this amendment but believes it is appropriate in the circumstances.

18.4 Amendments to the Children and Young Persons Act 1989

Clause 4 inserts a new section 12A providing for the appointment of an Acting Children's Court Senior Magistrate. Clause 5 substitutes a new section 13 and inserts a new 13A into the Act permitting the Chief Magistrate to assign duties to a magistrate who must carry out those duties and the power to delegate to any magistrate the power to make arrangements for magistrates to attend courts for the purposes of sections 10 and 13 of the Act.


... amendments to the Children and Young Persons Act 1989 will provide for the appointment of an acting Children's Court Senior Magistrate. The amendment addresses the concern that the process of making a Governor in Council appointment where there is a short term or unexpected vacancy is too cumbersome. The Children's Court Senior Magistrate may be required to attend a conference, or be absent due to an illness or be taking a short vacation. In these situations there is a need to provide for an acting Children's Court Senior Magistrate at short notice or for a short period of time. The Governor in Council appointment procedure is not suitably flexible for these situations.

The Bill amends the Children and Young Persons Act 1989 to provide that where there is a vacancy in the Office of the Children's Court Senior Magistrate, and a Governor in Council appointment has not been made, the Chief Magistrate may act as Children's Court Senior Magistrate. Where the vacancy in the office is to exceed a period of 3 months, a Governor in Council appointment must be made.

18.5 Amendments to the Confiscation Act 1997

Clause 7 amends the definition of "unlawful activity'' in section 3 of the Act by inserting the words "punishable by imprisonment". The section would then read:-

UnLwful activity "means an act or omission that constitutes an offence against a law in force in the Commonwealth, Victoria or another State, a Territory or a foreign country punishable by imprisonment".

Clause 8 amends the definition of "related offences" in section 8. The amendment brings the section in line with the wording of the definition in rule 2 of the Sixth Schedule of the Crimes Act 1958. Clause 9 further defines "dealing with property" in section 11 of the Act to include using property to obtain or extend credit and using a credit facility which is secured against restrained property. Clause 10 amends and clarifies section 14(7) providing that an undertaking as to damages for the granting of a

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restraining order is to be given by a person on behalf of the State. Clause 12 amends section 22(c)(ii) of the Act providing that where a court is considering an application made by the executor or administrator of the estate of a deceased defendant the court may make an order excluding the property from the operation of the restraining order if the court is satisfied that there are reasonable grounds to believe that the interest claimed by the estate of the defendant was lawfully acquired by the defendant. Clause 14 inserts a new section 27(3)(ba) providing that where a defendant is acquitted of a civil forfeiture offence, and is not charged with a related offence, any restraining order obtained in relation to that civil forfeiture offence, will cease to be in force on the expiry of 7 days of the acquittal unless the restraining order restrains property for the purpose of civil forfeiture.

Clause 15 repeals paragraph (a) of section 31 of the Act. Accordingly the State's obligation to satisfy an order for restitution, compensation or an award of damages is not dependent upon a restraining order having been made for a purpose referred to in section 15{1)(e) of the Act.

Oause 15 further inserts a new section 31(2) providing formulae for the calculation of the amount the State must pay to victims of a crime where the amount to which victims are entitled exceeds the amount of property which has been forfeited or paid to the State. In such circumstances a pro rata amount will be paid. The Committee notes the comment in the Second Reading Speech:-

The Act will significantly assist victims of crime to recover compensation for pain and suffering from the defendant. The Act enables victims of crime to have a compensation order satisfied by the state to the value of pruperly which has been confiscated, provided that a restraining order was obtained for the purposes of satisfying a restitution or compensation order. The Bill amends the Act by extending the situations in which a victim's compensation order will have priority over the state's interest in confiscated prupert.y. It will no longer be necessary for a victim to have a restraining order for the purposes of satisfying a compensation order, before the victim's interests take priority over the state's interest. Victim's interests will now always have priority over the state's interest.

Clause 21 amends section 54(1) and provides that an applicant who proposes to buy back their interest in forfeited property, must make application to do so within 2 months of being notified by the Minister of the value of the forfeited property. [the former provision allowed 6 months]

Oause 21 amends section 56(7) of the Act to provide that where an applicant has purchased their interest in forfeited property and their conviction is subsequently quashed, the applicant is entitled to a refund of the amount paid to purchase the property.

Clause 24 inserts a new section 67(1)(aa) providing that when a court is assessing the value of the benefits derived by a defendant in relation to an offence, the court may consider any money actually received by a defendant and does not need to embark upon an assessment of the profit obtained by a defendant. The amendment gives statutory effect to the approach of the Victorian Court of Criminal Appeal in Director of Public Prosecutions v Nieves and Others [1992] 1 VR 257.

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Clause 26 amends section 93(3} of the Act to enable a person to move property subject to an embargo notice issued under section 93(2), where that movement is with the consent of the police officer who issued the embargo notice.

Clause 29 inserts a new section 106(l)(c) into the Act providing that a person is not excused from producing or making available a 'property-tracking' document, when required to do so by the production order, on the ground that to do so would breach an obligation, whether imposed by an enactment or otherwise, of the person not to disclose the existence or contents of the document.

Clause 32 inserts a new section 133A into the Act and relates to costs orders that may be made in favour of or against applicants in respect to forfeiture orders. Clause 34 amends section 142(1)(b) of the Act and clarifies that an appeal may be brought in relation to an application to exclude property from the operation of a restraining order made for the purpose of automatic forfeiture, or an application to exclude property which has been automatically forfeited under section 22(1) or section 52(1) respectively. Clause 36 makes consequential amendments to sections of the Act providing that property is forfeited to the Minister and not to the State.

18.6 Amendments to the Crimes (Menta/Impairment and Unfitness to be Tried) Act 1997

Oause 40 of the Bill amends the Act in respect to the time limits applicable to the review by the Courts of people currently subject to Governor's pleasure orders. The time within which a court must hear a major review of an existing detainee whose nominal term (defined by section 28) has expired before 18 April 1998 has been amended from 3 months to 6 months and if an existing detainee is on leave as at 18 April1998, that leave is to continue for a maximum period of 12 months, rather than the 6 month period currently in the Act. Oause 2(3) deems that the amendment comes into operation on 18 April1998. Clause 41 makes consequential amendments to section 20 of the Mental Health Act 1986 and inserts a new section 20(3) providing that a letter written to or by a forensic patient must, subject to any security conditions imposed under section 17B, be forwarded without being opened to the person to whom it is addressed. Clause 42 makes consequential amendments to a number of superannuation Acts.

18.7 Amendments to the Gaming Machine Control Act 1991

Clause 43 of the Bill amends sections 136 and 138 of the Act by reducing the amount paid from the Consolidated Fund to the Community Support Fund in the six financial years commencing 1998/99. In each year the fund will be reduced by $25,000,000. The Committee notes the comments in the Second Reading Speech:-

These amounts will be used to boost the funding for other government priorities for education and health programs over the next six years.

Revenue from gaming operators currently supports a range of social purposes, namely the Community Support Fund (CSF), the Hospitals and Charities Fund and the Mental Hospitals Fund. This amendment will expand the support to include education and health programs and initiatives.


18.8 Amendments to the Gaming No. 2 Act 1997

Clause 44 amends section 52 of the Act and provides that in certain circumstances a volunteer who does not hold an employee's licence may perform the functions of a bingo employee in a bingo centre. Where the volunteer is acting in good faith, and carrying out the prescribed duties for only one bingo permit holder in any seven day period, they will not be required to hold a bingo employee's licence.

18.9 Amendments to the Magistrates' Court Act 1989

Clause 45 substitutes a new section 13 and inserts a new section 13A in the Act providing that the Chief Magistrate may assign duties to a magistrate or acting magistrate who may carry out those duties. The new 13A provides that the Chief Magistrate may delegate to any magistrate the power to make arrangements for a magistrate to attend court under section 6(1) and the power to assign duties under the new section 13. The Committee notes the comments in the Second Reading Speech:-

The amendments to the Magistrates' Couri Act 1989 and the Gzildren and Young Persons Act 1989 will enable the chief magistrate to delegate the power to arrange far a magistrate to attend court and the power to assign duties to magistrates. The amendment will enable the chief magistrate to delegate this power to senior magistrates who are responsible far the management of the different regions of the court.

Clause 46 amends Schedule 7 to the Act to provide for the collection of the warrant issue fee prescribed under clause 8(1A) of that Schedule where a warrant has been recalled and cancelled due to a time to pay arrangement being entered into in accordance with clause 7 of that Schedule. The amendment provides that where the registrar makes an instalment or extension of time to pay order after a warrant has been issued, and recalls and cancels that warrant, the registrar must include the warrant issue fee in the amount of the fine. The definition of "fine" in clause 2 of Schedule 7. New clause 7(3A) of Schedule 7 provides that the registrar has a discretion to determine not to include the warrant issue fee in the fine under clause 7(3) where the registrar is satisfied that there are sufficient grounds to do so.

18.10 Amendments to the Port Services Act 1995

Clause 47 provides for an increase in the size of the Board of the Melbourne Port Corporation from a maximum of 5 to a maximum of 7.

18.11 Amendments to the Public Sector Superannuation (Administration) Act 1993

Clause 48 inserts provisions in the Act to enable the Local Authorities Superannuation Fund to transfer to Commonwealth supervision. Oause 49 repeals the Local Authorities Superannuation Act 1988. Which contain the provisions that exercise control over the Fund. The Committee notes the comments in the Second Reading Speech:-

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As pari of the on-going state public sector superannuation reform program and following a decision made by the Local Authorities Superannuation Board and the discussions held with the Office of Local Government and the Commonwealth Insurance and Superannuation Commission, the Bill contains transitional provisions and repeals the Local Authorities Superannuation Act 1988 to enable the Local Authorities Superannuation Board to make a valid election far the Local Authorities Superannuation


Fund to become regulated under Commonwealth supervision. The decision of the Local Authorities Superannuation Board to transfer the fund to Commonwealth control has been agreed because the Victorian Government is not a stakeholder in the Local Authorities Superannuation Fund and is not responsible for making or guaranteeing employer contributions.

18.12 Amendments to the Wills Act 1997 (not yet prodaimed)

Clause 52 amends section 12 of the Act to clarify the circumstances in which a testator may revoke the whole or any part of their will by a later will. The Committee notes the comment in the Second Reading Speech:-

Section 12 of the Wills Act 1997 deals with the circumstances in which a will is revoked. Under current section 12 it would seem that an earlier will is revoked automatically by the making of a later will by the testator. The effect of this section is to change the common law position which effect was not intended.

At common law, the mere fact of a testator making a subsequent testamentary instrument does not necessarily result in a total revocation of an earlier testamentary instrument, unless the testator expressly revokes the former instrument or the two are incapable of standing together. Often several testamentary instruments may be read together to constitute the last will of a testator. It is the testator's intention in revoking a will that is paramount not the making of a later will.

To address this issue, the Bill amends section 12 to restore the common law position where a testator may revoke the whole or any part of his or her will by a later will.

Clause 54 amends section 36 of the Act to make clear that the operation of section 36 does not preclude the admission of evidence which would otherwise be admissible at law in any proceedings to construe a will. Clause 58 inserts new sections 60 and 61 into the Act which in turn insert a new Part IV A into the Administration and Probate Act 1958 which deal with transitional matters. The Committee notes the comments in the Second Reading Speech:-

The Wills Act 1997 amended part IV of the Administration and Probate Act 1958 to provide for a revised testator's family maintenance ('TFM") scheme. The Act provides that the revised TFM scheme only applies to applications made after the commencement of the Act. Concerns have been expressed that this could result in challenges to existing deceased estates and uncertainty for administrators of estates.

To address these concerns the Bill provides that the old TFM scheme continues to apply to the estate of a person who has died before the commencement of the new TFM scheme. Therefore, the new TFM scheme will only apply to the estate of a person who dies after the commencement of part 7 of the Wills Act 1997.

This Bill is intended to improve the operation of the Wills Act 1997 when it is proclaimed later this year.


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Public Sector Management and Employment Bill

19.1

The Bill was introduced into the Legislative Assembly on 8 April 1998 by the Honourable Jeff Kennett MP with the Honourable Phil Gude MP.

19.2

The purpose of the Bill is to provide for the management of the Victorian public sector. The Committee notes the comments in the Second Reading Speech:-

The purpose of this Bill is to continue the reform of the management of the Victorian Public Sector and to recognise the effect of the historic referral of Victoria's industrial relations powers to the Commonwealth. The new employment and management framework for the public sector will move the public service closer to the private sector, where terms and conditions of employment are governed by awards and agreements.

The Bill focuses on the principles that govern public sector employment and removes unnecessary detail on employment procedures.

A key area where the public sector employment is different to the private sector relates to the strict adherence to the merit principle. The government is conscious of the need to continue to protect public employment from politicisation and to ensure the principles of merit and equity are maintained. The Bill addresses this need in two ways:

1. Principles of public sector employment and conduct are established for the first time by statute, allowing Parliament to establish key values that aperate in the public interest.

2. An independent statutory office of Commissioner for Public Employment is established, with the power to issue binding directions on the principles of public sector employment and conduct.

19.3 Part 1

Clause 5 defines 'public authority' for the purpose of the Act Clause 6 states the Act is not to apply to certain persons, namely, judges, magistrates, senior statutory law officers, members of the police force and officers within the meaning of the Parliamentary Officers Act 1975.

19.4 Part2

Clause 7 provide for the principles of public sector employment to be established by public Authority Heads. Clause 8 establish public sector conduct principles to be observed by employees. In respect to the principles in clauses 7 and 8 the Committee note the comments in the Second Reading Speech:-

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The principles of public sector employment are basic to an apolitical public sector, serving the government of the day. They are:

• Employment decisions are based on merit

• Employees are treated fairly and reasonably

19.5


• Equal employment opportunity is provided

• Employees have a reasonable avenue of redress against unfair and unreasonable treatment.

The principles of public sector conduct are those contained in the current code of conduct for the Victorian public sector. Those principles require public sector employees to:

• Act impartially;

• Act with integrity including avoiding real or apparent conflicts of intere.~,t;

• Provide responsive service; and, lastly

• Accept accountability for results. !• (- '"' •·

.i• • . ( Part3

Clauses 10 and 11 provide that the Governor in Council may by ordi?r,~IIMMil~rfh Government Gazette create, abolish or change the name of a Department or Administrative Office. Oauses 12 to 15 provide for Agency and Administrative Office Heads, their responsibilities and duties. Clause 16 declares that certain statutory office holders are Agency Heads. Clause 17 requires the Commissioner for Public Employment, when directed by the Minister, to review the performance of Agency Heads.

Clause 18 permits the Agency Head to delegate by instrument any of his or her functions to any person or body including a function delegated under this Act. Subclause 2 further provides that a delegate of a function may subject to any conditions to which the delegation is subject, sub-delegate that function to any other person or body if the instrument authorises it's sub-delegation. Clause 20 sets out the employer powers of the Agency Head. Those powers are to be exercised in accordance with the principles of public sector employment and conduct principles provided in sections 7 and 8 and in conformity with directions issued by the Commissioner for Public Employment and the relevant provisions of the Act. Clause 21 defines 'executives' for the purpose of the Act. Oause 22 identifies who the employers of executives are. Clause 23 provides that employment of executives is governed by contracts of employment between employers and executives and provides for the nature and content of those contracts. Clauses 25 and 26 provide for the directed transfer of employees to other Agencies or to public authorities. Transfers are to be on existing terms and conditions of employment. Clause 27 allow for transfers of employees from one agency to another or to a public authority where agency functions are transferred or cease to exist. Transfers are to be on existing terms and conditions. Clause 28 provides that transfers and staff movements do not constitute a resignation or termination of employment and the movement is to be regarded as continuous service with the pre-transfer service.

19.6 Part4

Clauses 31, 32 and 33 deal with the termination of employment of non-executive employees, executives employees and designated employees respectively. Clause 34 provides that, an employee may retire at age 55. An Agency Head may cause an employee to be retired on grounds of incapacity to perform his or her duties or physical

81

Scrutiny of Acts and Rl!gulations Committee

or mental incapacity. The Public Employment Minister may cause an Agency Head to be retired if satisfied of the incapacity of that person to perform his or her duties or on the grounds of physical or mental incapacity.

Clause 35 provides that subject to awards, agreements or contracts of employment or directions issued by the Public Employment Minister an employee is not entitled to compensation as a result of termination of employment or reduction of remuneration.

19.7 Part 5

Clause 36 establishes the Commissioner for Public Employment, and Clauses 37 and 38 deal with the functions and duties of the commissioner including the power to issue (section 37(l){b)) written directions concerning the application of public sector employment principles provided by sections 7 and 8. Clause 39 defines the scope or extent of the directions that the Commissioner for Public Employment may establish and issue.

Clause 40 allows for Parliamentary scrutiny of directions issued by the Commissioner under section 37(1)(b). Require that such notices be published in the Government Gazette. Sub-clause 2 provides:-

(2) Section 15 and Part 5 of the Subordinate Legislation Act 1994 apply to directions issued under section 37(1)(b) as if they were a statutory rule within the meaning of that Act, notice of the making of which had been published in the Government Gazette on the day on which the notice under sub-section (1) was so published.

Oause 41 allows the Commissioner of Public Employment to delegate to any person any function other than the power to delegate.


Commissioner directions will be binding on the public service and certain of the public authorities which are 'declared authorities' under the Act. The directions will have the status of statutory rules for the purposes of section 15 and part 5 of the Subordinate Legislation Act. This means that the Scrutiny of Legislation Committee can report to each house on the directions and the directions can be disallowed by the Parliament.

Oause 42 provide for the terms and conditions of appointment for the Commissioner for Public Employment.

19.8 Part 6

Clause 43 set out the functions of the Public Employment Minister and allow the Minister to direct the holding of special inquiries concerning an Agency, prescribed authority or public authority. Clause 44 deal with the powers of the person conducting a special inquiry.

19.9 Part 7

Clause 47 defines the meaning of 'declared authorities'. Oause 48 states that the provisions of the Act are to apply to declared authorities only if they are specified on Orders in Council made under section 47(2).

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19.10 Parts 8, 9 and 10

Oauses 49 and 50 deal with the employment of Ministerial officers and Parliamentary advisers. Clauses 51, 52 and 53 deal with the employment and termination of employment of certain judicial employees (associates, secretaries etc). Clause 54 empowers the Agency Minister to delegate to any person any function under the Act, other than the power to delegate. Clause 55 enables a person to be directed by an Agency Minister to perform the functions of an office holder in the service of the Crown, under any Act or other document, in the absence of that office holder or in the event of a vacancy in that office. Clause 56 applies the provisions of the Evidence Act 1958 in relation to investigations or proceedings under the Act. Clause 57 allows regulations to be made.

Public Sector Reform (Miscellaneous Amendments) Bill

20.1

The Bill was introduced into the Legislative Assembly on 8 April 1998 by the Honourable Jeff Kennett with the Honourable Phi! Gude MP.

20.2

The purpose of the Bill is to:-

• make consequential and transitional amendments to legislation following from the enactment of the Public Sector Management and Employment Bill;

• make amendments to legislation to codify the changes made by administrative arrangements since 1983; and

• amend the Administrative Arrangements Act 1983 to ensure orders under the Act can construe references in legislation to bodies corporate constituted by Agency Heads under the new Public Sector Management and Employment Act 1998.


The Bill before the house will include the necessary transitional provisions and amend Victorian legislation so as to make the following alterations.

• References to the Public Service Act 1958, the Public Service Act 1974 and Public Sector Management Act 1992 are changed to Public Sector Management and Employment Act;

• References to officers are changed to employees;

• References to public service offices and positions are removed;

• References to appointment are changed to employment;

• References to the Public Service Board are removed;

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• References to the Public Service Commissianer are changed to the Commissianer for Public Employment.

ADMINISTRATIVE ARRANGEMENT ORDERS

As members will also be aware, orders are made under the Administrative Arrangements Act 1983 to construe references to departments, ministers and officers to mean other departments, ministers and officers. However, as over 150 of those have been made since 1983 and as those orders do not amend the Acts concerned, a large number of Ads cantain references which are now outdated and which muse cansiderable confusion when provisions are being interpreted.

By codifying the bulk of the changes made to Ads by administrative arrangements orders, this Bill will remedy this positian and remove that confusian.

ADMINISTRATIVE ARRANGEMENTS ACT

The Bill clarifies an area of uncertainty concerning the effectiveness of administrative arrangements orders. This uncertainty relates to the impact of those orders on references to certain officers, namely certain departmental secretaries who are bodies corporate in relation to certain of their functions. While it is clear that administrative arrangements orders are able to construe references to those officers, doubts have been raised as to whether the orders are able to construe references to them in their body corporate status. This amendment will put the matter beyond doubt by making it clear that administrative arrangement orders can affect a body corporate constituted by agency heads within the meaning of the Public Sector Management and Employment Act.


Melbourne City Link (Exhibition Street Extension) Bill

21.1

The Bill was introduced into the Legislative Assembly on 22 April 1998 by the Honourable Phil Gude MP on behalf of the Honourable Rob Maclellan MP with the Honourable Alan Stockdale MP.

21.2

The purposes of the Bill are to amend the Melbourne City Link Act 1995 to:-

• provide for the ratification of agreements with respect to the Melbourne City link project and the Exhibition Street Extension project;

• make further provision for the operation of the Exhibition Street Extension Project road;

• amend the Melbourne City Link Authority Act 1994 to make further provisions with respect to the powers and functions of the City link Authority; and

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• make related amendments to other Acts.


The Exhibition Street Extension project will operate under a legislative framework very similar to that which applies to the Melbourne City Link project.

The Bill proposes to ratify the Exhibition Street Extension concession deed and the integration and facilitation agreement on the same basis as the Melbourne City Link agreement. The two new agreements will be set out in schedules to the Melbourne City Link Act 1995. They will be ratified as if enacted as a part of that Act.

Amendments or variations to any of the three agreements must be published and tabled in Parliament. They will also be subject to disallowance by either house, as with regulations or planning scheme amendments.

There is one exhibit to the new concession deed. Whilst the exhibit is not printed with the Bill, it will form part of the agreement as ratified. A copy of the exhibit has been made available in the parliamentary library.

The Bill will also confer authority on the City Link Extension Pty Ltd to operate, maintain and toll the extension road.

The usual traffic and road management laws will apply to the extension road, except that the private operator will perform most of the management functions normally performed by Vicroads. Again, these provisions follow the model for the City Link as far as possible, but with a number of technical changes reflecting the different contractual arrangements and the fact that the extension road will not operate as a freeway.

To facilitate the integrated operation of the City Link and the extension road, the Bill will enable the holder of the extension concession to delegate its operational functions to Transurban.

State authorities will continue to perform their usual law enforcement and emergency management functions.


Clause 14 substitutes a new section 18(2) in the Act providing that:-

Neither the State nor a public authority is liable for the acts or omissions of (a) any other party to (i) the Agreement; or (ii) the Integration and Facilitation Agreement; or (b) a licensee in relation to the Project.

Oause 35 inserts a new section 117A into the Act declaring that it is the intention of section 18 the Act {as amended by this Bill) to alter or vary section 85 of the Constitution Act 1975 by limiting the jurisdiction of the Supreme Court.

The Committee notes the comments in the Second Reading Speech in relation to the variations to the jurisdiction of the Supreme Court:-

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I preface my renulrks by noting thnt these proposals are consistent with those in the original Act which were reported by the Scrutiny of Acts and Regulations Committee as appropriate and desirable in all the circumstances.

Clause 35 of the Bill will insert a new section 117A, which states thnt it is the intention of sections 18 and 94 of the principal Act, as amended by the Bill, to alter or vary the Constitutional Act so as to limit the Supreme Court's jurisdiction.

Section 18(2) of the principal Act currently provides thnt the State is not liable for the acts or omissions of other parties to the Melbourne City Link agreement or the holders of licences under the principal Act. This provision was the subject of a section 85 statement at the time the Bill for the principal Act was introduced.

Clause 14 of the Bill will amend section 18(2) so as to extend this immunity to exclude liability for the acts or omissions of other parties to the Extension agreement in addition to the Melbourne City Link agreement. This includes those agreements as modified by the Integration and Facilitation agreement.

The reason for granting this immunity and the consequential variation of the court's jurisdiction is that the holders of the City Link and Extension Road concessions are not agents of the State. It is a fundo:mental commercial principle of both projects thnt the concession holders bear all the risks associated with the performance of their functions. The Bill does not affect the liability of the State or its authorities in respect of their own acts or omissions.

Section 94 of the principal Act currently confers on Transurban, as the holder of the City link concession, the same protections and immunities as those enjoyed by Vicroads under legislation and at common law in relation to road administration.


21.4

Clause 17 inserts a new section 30A into the Act which reserves an additional stratum of underground land in South Richmond. The stratum is required for the emergency egress tunnel for the Bumley Tunnel. Only the stratum below a depth of 15.24 metres from the surface is affected and, clause 18 inserts a new section 34A in the Act creating a right to compensation, on application by an affected person, in respect of any private property acquired by the new section 30A. The provisions of the Land Acquisition and Compensation Act 1986 apply in the determination of the amount of such compensation.

21.5 Alteration or variation of section 85 of the Constitution Act 1975 (section 4D(b )(i) and (ii) of the Parliamentary Committus Ad 1968)

Clause 26 amends section 94 of the Act to confer on the extension corporation the same immunities and protections as the Roads Corporation under the Transport Act 1983 and at common law in relation to the operation, maintenance, management and control of highways. These protections and immunities are also extended to persons exercising the Extension corporation's powers under delegation or sub-delegation.

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Clause 35 inserts a new section 117 A into the Act declaring that it is the intention of section 94 of the Act (as amended by this Bill) to alter or vary section 85 of the Constitution Act 1975 by limiting the jurisdiction of the Supreme Court.


Clause 26 of the Bill will amend section 94 to extend these protections and immunities to the holder of the extension concession, in addition to Transurban, and to their respective delegates.

The reason for extending these protections and immunities, and for the consequential variation to the Supreme Court's jurisdiction, is to maintain consistency in the laws governing the State's public roads.

Unless there is specific provision to the contrary, the law should apply to the City Link and Extension Road in the same way as to other roads. Anomalies and uncertainties would arise if the common law and legislation of general application applied in respect of privately operated public roads differently from the way the law applies to other public roads.

It is not intended to limit or alter the operation of the general law of the State other than to ensure that the law does not apply differently to the City Link and the Extension Road only because they are privately operated in accordance with the relevant agreements.


21.6

Clause 31 amends section 103 of the Act to provide that a municipal Council may not exercise certain road and traffic management powers inconsistently with the Extension Corporation. It further provides that the corporation is responsible for fire hydrants on the Extension Road not the Council.

Clauses 33 and 34 make consequential amendments on recent amendments made to the Summary Offences Act 1966, in relation to trespass. The removal of the letter (d) (where occurring in sections 108 and 114 of the Act) amends the authoritiy's powers to warn or remove persons on licensed land or a temporary construction site.

Clause 36 allows regulations to be made consequent upon the amendments being made in the Bill.


Clause 50 inserts a new section 207F(3)(aa) into the Local Government Act 1989 providing that damages cannot be claimed under section 207F in relation to the operation or effect of the Extension Road.

Clause 51 inserts a new section 242A into the Act and declares that it is the intention of section 207F(3)(aa) to alter or vary section 85 of the Constitution Act 1975.

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Clause 50 of the Bill will amend section l1J7F of the Local Government Act 1989 to prevent municipal councils claiming compensation from the operators of the Extension Road for damage caused to local roads by traffic from the Extension Road. The Supreme Court's jurisdiction is to be varied accordingly by clause 51 of the Bill, which will insert a new section 242A into the Local Government Act for that purpose.

The reason for limiting the councils' compensation rights, and for the consequential limitation to the Supreme Court's jurisdiction, is that it is not appropriate for road administration bodies to seek damages from each other in respect of traffic flaws over the State's public road network. Road administrators cannot control the usage of patterns of public roads, not prevent heavy vehicles from using those roads.


Transport Accident (Amendment) Bill

22.1


22.2 Committee's report

The Committee reported on the Bill in Alert Digest No. 3 of 1998 on 20 April 1998. The relevant extract is set out:-

Clause 4 amends section 13(2) to repeal the requirement that the Commission's authorisation of services be in accordance with the regulations. The Committee will write to the Minister requesting his advice as to why this is so.

22.3 Minister's response

The Committee wrote to the Minister on 21 April1998. The Minister responded by way of letter dated 30 April1998 received by the Committee on 5 May 1998. The Minister's response is set out:-

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I refer to your letter of 21 April1998 seeking clarification of the reasons for the repeal of section 13(2)(c) of the Transport Accident Act 1986 (the Act) by clause 4 of the above Bill.

Section 13(2) deals with authorisation of persons to provide domestic and attendant care services to an injured person or the family of a person killed in an accident who was engaged mainly in house keeping duties or the care of a child and did not receive salary or wages in respect of those duties or that care. The section provides that authorisation by the Transport Accident Commission (TAC) must be given before the services are provided, in writing and in accordance with any regulations.


The TAC has advised me that it routinely gives approval to various individuals and organisation to provide domestic and attendant care services under section 23. The approval is provided upon application and after appropriate investigation of the potential providers.

No regulations have ever been made under section 23(2)(c) and circumstances are not envisaged where they would be required. The changes do not impact on a person's entitlements under the scheme. Under these circumstances, the provisions of section 23(2)(c) can be seen to be redundant.

Gas Pipelines Access (Victoria) Bill

23.1

This Bill was introduced into the Legislative Assembly on 8 April 1998 by the Honourable Alan Stockdale MP with the Honourable }an Wade MP.


The Committee reported on the Bill in Alert Digest No. 3 of 1998 on 21 April1998. The relevant extract is set out:-

The Chair will write to the Treasurer on behalf of the Committee in the following terms:-

The Scrutiny of Acts and Regulations Committee considered the above bill at a meeting on 2fJ April1998.

The Committee has a series of concerns in relation to the Bill.

Scrutiny of the legislation

The purpose of the Bill is to adopt the South Australian legislation. Whilst the Committee understands that the Bill forms part of a national scheme of legislation, it is difficult for it to fulfil its obligations under section 4D(a) of the Parliamentary Committees Act 1968 without sighting the South Australian Act. Whilst this is easily rectified from the Committee's point of view, it highlights the more general problem of scrutiny of the Parliament. The Committee is of the view that all Victorian legislation should be accessible. To this end, the Committee is of the view that the South Australian Act should form part of an appendix to the Victorian Bill so that at least there is some chance for members and the public to avail themselves of the state of the law.

Regulations

The Committee is also troubled at the prospect of the Victorian Parliament adapting binding regulations which are made interstate. Again, there is no chance of appropriate scrutiny or input. It seems to the Committee that this is not sound Parliamentary practice.

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Delezation provisions

By way of example of insufficient scrutiny, the Committee notes that there are delegation provisions contained in the South Australian Act which may, if introduced directly in a Victorian Bill be of concern. The concerns relate to the width of the delegation provisions. As the South Australian legislation is already in force, there is little a Victorian Scrutiny Committee can do to articulate its concerns.

Section 85 of the Constitution Act 1975

Clause 23 of the Bill declares the intention of section 22 to alter or vary section 85 of the Constitution Act 1975. Clause 22 refers to Parts 5 and 6 of the South Australian Act which set out the administrative proceedings which may be commenced for any breaches of the law. The Committee notes that Parts 5 and 6 are not reproduced anywhere in the Bill.

Where a particular course is contemplated in Victorian legislation in terms of altering or varying the jurisdiction of the Supreme Court, a section 85 clause highlights that matter to the Parliament. The Committee is concerned about the concept of precluding the institution of proceedings in a Victorian court in circumstances where the legislative provisions to which such proceedings might apply do not appear within the Bill and are therefore beyond scrutiny.

Continuinz problem

By way of conclusion the Committee notes that as national schemes of legislation continue to increase in popularity and number, so too will the need to address these scrutiny issues. It would seem likely that such issues will continue to emerge in further areas of significance.

The Committee would grateful for your response in respect of these matters and indeed advice as to whether appropriate amendments may be made. The Committee would appreciate your response by no later than 9.00 am on Monday 28 April1998 so that it can be incorporated into the next Alert Digest.

Please do not hesitate to contact me should you wish to discuss any of these matters.


The Committee wrote to the Minister on 21 April1998. The Minister responded by way of letter dated 6 May 1998 received by the Committee on 8 May 1998. The Minister's response is set out:-

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Thank you for your letter dated 21 April1998. I note the Committee's concerns and address them in order below.

Before doing so, however, I wish to record the context in which your concerns are raised. The Bill represents the culmination of a process that began in 1994 when the Council of Australian Governments agreed to general principles of competition policy reform and, as part of that commitment, agreed to more specific proposals for the development of free and fair trade in natural gas. It was envisaged that, and still is now, that the implication of that agreement would result in significant benefits to the Victorian and National economzes.


To achieve those benefits the governments of COAG have since agreed to the enactment of a uniform national legislative framework to apply for third party access to natural gas pipelines by way of an 'application of laws' regime. Whilst such an approach gives rise to certain implementation issues, including the important matters raised by you, legislating an effective national law is an integral part of delivering the benefits of this aspect of the national competition policy agenda.

Scrutiny of Legislation

I am advised that it is the practice of Chief Parliamentary Counsel to print application of laws acts with the applied law as an appendix to such acts so that a person wishing to know the law will find the relevant Victorian law in one place. Chief Parliamentary Counsel has confirmed that that practice will be followed upon passage of this Bill so that the Gas Pipelines Access (Victoria) Law (the "Access Law") will be an appendix to the Gas Pipelines Access (Victoria) Act 1998 (the "Act"). In the meantime, copies of the Access Law have been and will continue to be available for the scrutiny of members from me or from my Department.

Regulations

It is inherent in a successful application of laws regime that, in addition to primary legislation, any regulations also be identical across the participating jurisdictions.

Accordingly, section 8 of the Act provides for the application of "lead regulations" in a similar manner to application of the Access Law. Control is through section 10 of the Gas Pipelines Access (South Australia) Act 1997 which provides that a regulation made under that Act may only be made on the unanimous recommendation of the relevant Ministers of the scheme participants.

In order to balance the objective of effecting Victoria's commitments to national competition policy reform under COAG Agreements with the objective of appropriate scrutiny, I invite the Committee to be involved in the processes leading up to the approval of the "lead regulations".

Delegation Provisions

Whilst the interpretative provisions in Schedule 1 of the Access Law regulate the delegation of functions or powers, a delegation may only take effect where it is authorised by the Access Law. In fact, there is no such authorisation.

Section 85 of the Constitution Act 1975

The issued raised here appears to be one of particular application of the matter raised under the first heading. Again, I note that a copy of the Law will be printed as an appendix to the Act and that copies of the Law have been and will continue to be available for the scrutiny of members from me or my Department. In these circumstances, I do not consider that the relevant provisions are beyond scrutiny.

Continuing Problem

Whilst I believe that the Access Law is not beyond scrutiny, I acknowledge that there are no doubt alternative methods for ensuring that applied law is available for perusal and

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consideration as part of the parliamentary process. The Committee may wish to consider seeking a referral to inquire into those alternatives as part of its work.

Electricity Safety Bill

24.1



The Committee reported on the Bill in Alert Digest No. 2 of 1998 on 7 April1998. The relevant extract is set out:-

Clause 11 is the delegation provision. The Committee will write to the Minister in respect of the delegation provision.

Clause 164 inserts a new Part 3 into the Electricity Industry Act 1993 which contains provisions which relate to the supply of electricity in an emergency. The Committee notes that new section 47 A is a delegation clause. The Committee will write to the Minister in respect of the delegation provision.


The Committee wrote to the Minister on 8 April1998. The Minister responded by way of letter dated 20 April1998 received by the Committee on 22 Apri11998. The Minister's response is set out:-

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Thank you for your letter dated 8 Apri/1998. I note the Committee's concern over the delegation provisions contained in clauses 11 and 164 of the Bill.

With respect to clause 11, the Office of the Chief Electrical Inspector (uOECI") was established as the regulator with primary responsibility for the maintenance of safety standards within the restructured electricity industry. The Electricity Safety Bill seeks to consolidate its powers and functions which are currently contained in separate pieces of legislation.

It should be noted that a number of other organisations will continue to play a significant role in the electricity industry, both in terms of the provision of assistance to the OECI and through the exercise of their own functions. For example, the Victorian Police, Victorian WorkCover Authority or the various fire authorities may assist the OECI with the investigation of electricity-related incidents.

In such instances, it may be possible to identify a benefit from a function or power that resides principally with the OCEI being performed by another agency. The legislative framework and the "allocation" of functions between agencies will be revised if it becomes apparent over time that a delegated function should be the principal responsibility of another agency.


Although it is currently possible to identify agencies as above, there may be as yet unforseen benefits from utilising the expertise of other agencies. Therefore, I suggest that the legislation should allow for this possibility and not restrict the delegation pawer to specific agencies.

Clause 164 makes consequential amendments to the Electricity Industry Act 1993 and allaws for emergency responses should an event occur that may materially affect the safe, economical or effective supply of electricity. It is not appropriate to restrict the scope of the delegation provision as it is sometimes difficult, if not impossible to identify which organisation or agency is in the best position to mitigate a particular emergency situation. Any restriction on the scape of the pawer in this situation may prevent the best-equipped agency from dealing with it, or may delay an emergency response to an unpredictable situation.

Once again, it is possible to identify agencies such as the OCEY, the National Electricity Market Management Company or Victoria Police who would participate in an emergency strategy, but inappropriate to limit the scape of the delegation to these agencies only.

Com.miUee Room, Monday 11 May 1998

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EXTRACT FROM THE PROCEEDINGS

The Minutes of the Committee show the following Division that took place during consideration of the Public Sector Management and Employment Bill on Monday 11 May1998.

Public Sector Management and Employment Bill

Motion-That this Bill trespasses on the rights of existing public servants by limiting the career opportunities across the (former) public service and a diminution of certainty of treatment over working conditions.

Moved Seconded

Mr Bob Cameron MP Mr Carlo Carli MP

Question-That the words proposed to be inserted be so inserted-put.

The Committee divided.

Ayes, 3 Mr Bob Carneron, MP Mr Carlo Carli, MP Hon. Don Nardella, MLC

And so it passed in the negative.

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Noes, 4 Hon. Peter Katsarnbanis, MLC Mr Tony Plowman, MP Mr Peter Ryan, MP Mr Murray Thompson, MP



on the

Livestock Disease Control (Amendment) Bill Transfer of Land (Single Register) Bill International Transfer of Prisoners (Victoria) Bill Melbourne and Olympic Parks (Amendment) Bill State Taxation (Amendment) Bill Catchment and Land Protection (Amendment) Bill

Tuesday, 1 September 1998

95



Livestock Disease Control (Amendment) Bill Transfer of Land (Single Register) Bill


96

Livestock Disease Control (Amendment) Bill Transfer of Land (Single Register) Bill International Transfer of Prisoners (Victoria) Bill Melbourne and Olympic Parks (Amendment) Bill State Taxation (Amendment) Bill Catchment and Land Protection (Amendment) Bill


Livestock Disease Control (Amendment) Bill

1.1

The Bill was introduced into the Legislative Assembly on 13 May 1998 by the Honourable Pat McNamara MP with the Honourable Phil Gude MP.

1.2

The purpose of the Bill is to amend the Livestock Disease Control Act 1994 (the Act), to provide for the introduction of a permanent identification scheme initially for cattle and to improve the operation of the legislation. The Committee notes the comments in the Second Reading Speech:-

1.3

The amendments to the Act contained in this Bill will allow the implementation of the national scheme for the permanent identification of cattle from later this year. The scheme will be implemented in Victoria through the use of permanent whole-of-life identification devices produced to national standards. While the process of approving devices will be standardised by a national advisory body, States will remain responsible for administering the scheme by granting identification numbers, approvzng manufacture of devices, and ensuring the integrity of operating systems.

Clause 3 amends the definition of "exotic disease" in section 3 of the Act to enable the Governor in Council to declare a condition of livestock, as well as a contagious or infectious disease, to be an "exotic disease". Clause 4 inserts a new section 9C and provides that a branding device or tag may not be sold or offered for sale without the written authorisation of the Secretary. Clause 8 amends section% of the Act to provide that the offence of non-compliance with Part 6 (Payment of Stamp Duty) of the Act applies to any stamp duty payable under Part 6, and not just limited to cattle duty and pig duty. The amendment further provides for an offence of not properly endorsing stamp duty as having been paid by applying it to statements as well as other documents and invoices. Clause 10 expands the regulation making powers in section 139 of the Act to accommodate the new section 9C and to provide certain livestock inspection and examination information be forwarded to the Secretary.

Clause 12 amends the Plant Health and Plant Products Act 1995 to allow action to be taken to prevent the spread of fireblight, a plant disease, by the destruction and control of the movement of bees, honey, hives etc contaminated with fireblight. The Committee notes the comments in the Second Reading Speech:-

In dealing with the occurrence of fire blight in Victoria last year, it became necessary to deal with honey bees potentially contaminated with the fire blight agent. The Plant Health and Plant Products Act 1995 is being amended to ensure that contaminated bees will be dealt with under the Act for disease control purposes.

Oause 13 amends the Stamps Act 1958.


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Transfer of Land (Single Register) Bill

2.1

The Bill was introduced into the Legislative Assembly on 13 May 1998 by the Honourable Marie Tehan MP with the Honourable Phil Gude MP.

2.2

The Bill amends the Transfer of Land Act 1958 to further streamline procedures for the conversion of general law land and to make consequential amendments to the Property Law Act 1958. At present 3% of the area of the State is held under the old system of general law land. The Bill provides a means for the complete elimination of privately owned general law land. When this is achieved all owners of land will have the benefits afforded by the Torrens system title. The Committee notes the comments in the Second Reading Speech:-

2.3

It is widely acknawledged that the title to general law land is less marketable and less acceptable as security that a Torrens system title. There are several reasons for this. First, awnership is not guaranteed by the State. Second, it is expensive to trace and gather together the records of the complete series of transactions with the praperty. Third, since the advent of the Subdivision Act 1988, general law land cannot be subdivided without first being converted to the Torrens system ...

Today, there remain an estimated 35,000 parcels of land, representing approximately 3% of the area of this state, which do not have the benefit of the simpler and State guaranteed Torrens system.

This Bill provides for the complete elimination of privately awned general law land. When this is achieved, all awners of land will have the benefit of a Torrens system title."

Clause 6 is the substantive provision which substitutes a new Part II (Divisions 1 to 4) into the Transfer of Land Act 1958 (the Act). The new section 9 imposes a duty on the Registrar of Titles to bring all alienated land under the operation of the Principal Act and specifies how land may be brought under the operation of the Principal Act. Section 10 identifies the categories of persons entitled to have land brought under the operation of the Act. Section 11 provides that certain leasehold land may be brought under the operation of the Act. Clauses 21 to 23 make amendments to the Property Law Act 1958. In respect to clause 22 the Committee notes the comments in the Second Reading Speech:-

The Bill repeals the land dealings registration provisions in the Praperty Law Act 1958 and provides that no document affecting land may be registered under that Act. This change will require any party dealing in general law land who desires registration to proceed under the Transfer of Land Act 1958.

Clause 24 provides for consequential amendments to sixty-eight (68) Acts as specified in the Schedule.


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International Transfer of Prisoners (Victoria) Bill

3.1

The Bill was introduced into the Legislative Assembly on 29 April 1988 by the Honourable Bill McGrath MP with the Honourable Tom Reynolds MP.


The Committee reported on the Bill in Alert Digest No. 4 of 1988 on 12 May 1998. The relevant extract of the Committee's letter to the Minister on 13 May 1998 is set out:-

Clause 2 provides that Part 1 of the Act comes into operation upon receiving the Rayal Assent, and the remaining provisions of the Act come into force upon proclamation. The operation of the Act is left open-ended and regrettably there was no explanation accompanying the Explanatory Memorandum as to why this should be so. The Committee requests your advice as to why it was necessary to depart from the standard practice to fix a period of days or months after Royal Assent at which time the remaining provisions of the Act come into operation.


I refer to your letter of 13 May 1998 querying the departure in the International Transfer of Prisoners (Victoria) Bill1998 from the standard practice of setting a fixed period after Royal Assent after which any unproclaimed provisions of the Act come into force.

You are correct in noting that the legislation is part of a Commonwealth and State government scheme and that this is the reason why the provisions of the Act other than Part 1 will come into effect only upon proclamation.

It may be some time yet before all State governments have passed the necessary legislation and before administrative arrangements are in place that will allow for the implementation of the international transfer scheme.

It is intended that Commonwealth and State legislation will be proclaimed simultaneously when all these matters are settled. It is for this reason that there is no set period after which unproclaimed provisions in the Act will come into force.

Melbourne and Olympic Parks (Amendment) Bill

4.1

The Bill was introduced into the Legislative Assembly on 22 April 1998 by the Honourable Marie Tehan MP with the Honourable Phil Gude MP.

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4.2

The Committee reported on the Bill in Alert Digest No. 4 of 1998 on 12 May 1998. The relevant extract is set out:-

The Ccmmittee will write to the Minister concerning any current ar identifiable users tlult may lulve interests ar rights affected by the application of the section 85 provision.

The Committee wrote to the Minister on 12 May 1998. The relevant extract is as follows:-

Clause 5 inserts new sections 25E and 25F and make provision for the power to excise additional land from Yarra Park and from Public Park Reserve.

Clause 6 states tlult it is the intention of section 26, as amended by the Bill, tlult no compensation be payable by the Crown in respect of any act or matter or thing done under or arising out of sections 25E ar 25F of the Act.

Clause 6 further provides tlult it is the intention of section 26 as amended by the Bill to alter or vary section 85 of the Ccnstitution Act 1975.

The Committee notes the passage from the Second Reading Speech:-

'The existence of any interests and rights, and claims far compensation based on them or on the former uses of the land, could delay ar prevent a clulnge in the use of the land tlult is for the benefit of the community as a whole.'

The Ccmmittee seeks your advice as to the nature and extent of identified current ar former users of the land tlult may be disadvantaged or effected by the section 85 provision.


100

Tlulnk you far your letter of 12 May 1998 seeking advice regarding the provision to vary section 85 of the Ccnstitution Act 1975 contained in the Melbourne and Olympic Parks (Amendment) Bill.

In response to your query, it is my understanding tlult there are no current or former users of the land subject to the Bill tlult may be disadvantaged or affected by the section 85 provision.

The proposed development at the National Tennis Centre is to straddle the land subject to the Bill and the existing a national tennis centre land" as defined by the Melbourne and Olympic Parks Act 1985. The Act already contains a section 85 provision tlult affects the "national tennis centre land" and it was therefore considered appropriate tlult the provision should extend to the land subject to the Bill.


State Taxation {Amendment) Bill

5.1


5.2

The Committee reported on the Bill in Alert Digest No. 4 on 12 May 1998. The Committee wrote to the Minister on 12 May 1998. The relevant extract is as follows:-

Clause 6 inserts into the Pay-roll Tax Act 1971 definitions of 'coastal waters of Victoria' and 'Victoria' for the purposes of that Act The effect of the amendments extends the jurisdiction of the State to encompass the coastal waters in consequence of the Coastal Waters (State Powers) Act 1980 (Cth).

Clause 2 deems that the amendment came into operation on 1 January 1998.

The Committee requests your advice as to why it is necessary to retrospectively apply the operation of this amendment to the Pay-roll Tax Act 1971 to 1 January 1998. The Committee would appreciate your response as soon as possible.


Thank you for your letter concerning amendments to the Payroll Tax Act 1971 contained in the State Taxation Amendment Bill1998.

The amendments to which your letter refers are intended to correct an anomaly by making it clear that work performed within Victorian coastal waters and the adjacent area beyond is subject to payroll tax, and not eligible for the exemption provided for work performed wholly outside Australia (that is, in another country).

Payroll tax was previously collected in respect of wages for services performed in Victorian coastal waters and adjacent area. However, an advice from the SolicitarGeneral revealed that the Ad in its current form had no operation for wages earned in those areas. The present amendment enables payroll tax to be collected from 1998 onwards in keeping with the Government's original intention.

The decision was made in December last year that the measure would take effect from 1 January 1998 only on the basis that the taxpayers and industry association affected by the measure would be notified of the legislative change before the commencement date.

The State Revenue Office notified by letter on 22 and 23 December the following individuals and organisations:

• All members of the State Taxes Consultative Committee

• Deloitte Touche Thomatsu

• Esso Australia

• Duesbury's Chartered Accountants

101


• BHP Limited

• P&O Catering Services

• Schlumberger Oilfield Australia Pty Ltd

• Armitage Downie, Accountants

• Skilled Engineering

• Oceaneering Australia Pty Ltd

• Oil Drilling and Exploration Offshore Pty Ltd

• Attwood Oceanics Pacific Ltd

In all cases, the advice was faxed to the recipient, to ensure that it was received promptly.

A copy of the attachment sent out with each letter is included, along with an acknowledgment from the Australian Petroleum Production & Exploration Association (APPEA) detailing the further distribution of the advice from the State Revenue Office.

1 trust that this will satisfy the committee that extensive effort was undertaken by the Government to alert those taxpayers affected by the change prior to its commencement date.

Catchment and Land Protection (Amendment) Bill

6.1

The Bill was introduced into the Legislative Assembly on 28 April 1998 by the Honourable Marie Tehan MP with the Honourable Robin Cooper MP.

6.2

The Committee reported on the Bill in Alert Digest No. 4 on 12 May 1998. The relevant extract is set out:-

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The Committee notes that the proposed sections 114 and 115 operate retrospectively. The Committee will write to the Minister to request information concerning any persons rights that may be detrimentally effected by the retrospective validation of actions taken by certain authorities as a consequence of these amendments, and how a right of appeal would be dealt with or provided for in relation to a person so effected.


6.3

The Committee wrote to the Minister on 12 May 1998. The Minister responded by way of two letters dated 20 May 1998 and 24 June 1998. The Minister's responses are set out respectively as follows:-

20May1998

I refer to your letter of 12 May 1998 concerning the above Bill.

The construction of the clause to which you refer has been drafted on the advice of Parliamentary Counsel. It is premised on the view that it is preferable to be as specific as possible in drafting a clause of this form, so as to deal with all possible actions which could conceivably be taken by a body of this type, rather than by preparing a generalised authorisation.

Prior to approving this Bill for introduction, inquiries were made as to whether the actions listed had been, or could have been, taken. I am advised that certain actions such as entry onto land could well have been taken because of the normal routine operational requirements of weather authorities. However my inquiries have not elicited any grounds for believing that any person may be detrimentally affected or disadvantaged by this clause.

24/une 1998

Thank you for your letter of 12 May 1998 seeking clarification in relation to avenues of appeal or redress available to persons affected by clause 12 of the above Bill.

When Catchment Management Authorities (CMAs) were established throughout non metropolitan Victoria on 1 July 1997, they took over the functions of existing Waterway Management Authorities (WMAs). The functions and powers of WMAs provided under the Water Act 1989 were then available to the CMAs.

As a result of questions raised about the process for the establishment of the CMAs it was considered appropriate to validate their establishment and appointment as Authorities under the Water Act and to validate actions undertaken by them under the Water Act. This is the purpose of clause 12 of the above Bill.

In addition to the functions and powers provided to CMAs under the Water Act (which were previously available to the WMAs), the Water Act also provides numerous checks and balances via opportunities for independent review of decisions or actions by a CMA. For example:

• Sections 266 and 271 provide for appeal to the Administrative Appeals Tribunal in relation to tariffs, fees or contributions to services imposed;

• Sections 130 and 135 provide for application of the Land Acquisition and Compensation Act 1986 in relation to acquisition of land;

• Section 155 provides for compensation by the CMA in relation to loss or expense as a direct, natural and reasonable consequence of the performance of the CMAs functions;

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104

• Section 2JJ7 provides for appeal to the Minister in relation to declaration of flood levels.

The avenues for review continue to be available to any person affected by decisions or actions of the CMAs. The Catchment and Land Protection (Amendment) Bi111998 has not altered this situation.

Committee Room, Monday 17 August 1998



on the

Arts Acts (Amendment) Bill Conservation, Forests and Lands (Miscellaneous Amendments) Bill Consumer Credit (Finance Brokers) Bill Health Services (Further Amendment) Bill Land (Further Revocation of Reservations) Bill Legal Practice (Amendment) Bill Mutual Recognition (Victoria) Bill Petroleum Bill Planning and Environment (Amendment) Bill Victorian College of the Arts (Amendment) Bill Victorian Institute of Marine Sciences (Repeal) Bill

Tuesday,6 October 1998

105





106



Arts Acts (Amendment) Bill

1.1

The Bill was introduced into the Legislative Assembly on 2 September 1998 by the Honourable Jeff Kennett MP with the Honourable Pat McNamara MP. The Second Reading Speech was delivered on 3 September 1998.

1.2

The primary purpose of the Bill is to increase by two the number of members of the Council of the National Gallery. The Bill also makes miscellaneous amendments to the Libraries Act 1988 and the National Gallery of Victoria Act 1966 (the Act).

1.3

Clause 2 saving section 3, the amendments commence on Royal Assent. Clause 2(2) states that section 3 is deemed to have come into operation on 26 May 1998. Clause 3 amends the Public Sector Reform (Miscellaneous Amendments) Act 1998 to retrospectively repeal an amendment to the Libraries Act 1988 that was not intended.

The Committee notes that the retrospective operation of clause 3 of the Bill is curative in nature and is designed to correct an unintended legislative consequence and is therefore appropriate in the circumstances.

Clause 5 amends section 6(1) of the Act and provides that two additional members will be appointed to the Council of the National Gallery increasing the number of councillors from 9 to 11. The effect of Clause 5(1)(b) is that the two additional members will be appointed by the Minister. Clause 5(2) substitutes a new section 6(3) making it clear that the Public Sector Management Employment Act 1998 does not apply to a member of the Council in respect of the office of member.


Conservation, Forests and Lands (Miscellaneous Amendments) Bill

2.1

The Bill was introduced into the Legislative Assembly on 2 September 1998 by the Honourable Marie Tehan MP with the Honourable Phil Gude MP. The Second Reading Speech was delivered on 3 September 1998.

2.2

The Bill amends the Conseroation, Forests and Lands Act 1987i certain references to the Secretary to the Department of Natural Resources and Environment; the Coastal

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Management Act 1995; the Crown Land (Reserves) Act 1978; the Parks Victoria Act 1998 and for other purposes.

2.3

Clause 2 Parts 1 and 5 come into operation on Royal Assent. Parts 3 and 4 come into operation on proclamation but not later than 1 July 1999. The remaining provisions commence on 15 December 1998.

Clause 2(2) provides that clauses 19 and 26(2) are deemed to have come into operation on 1 July 1998. Oause 19 clarifies references in the Broiler Chicken Industry Act 1978 are to the Department Head of the Department of Natural Resources and Environment, similarly, clause 26(2) clarifies references to the Department Head in the Pipelines Act 1967. Both provisions are machinery of government amendments and supersede amendments made to these Acts by the Public Sector Reform (Miscellaneous Amendments) Acts 1998 which commenced operation on 1 July 1998.

The Committee notes the retrospective operation of clauses 19 and 26(2) and recognises the curative nature of the legislation designed to correct unintended legislative consequences. The Committee believes that in the circumstances they are justified.

Clauses 3 to 32 are machinery of government nomenclature amendments such as substituting 'Secretary' for 'Director-General' and repealing definitions of 'Chief Administrator' and 'Director-General' where occurring in various Acts.

Clause 33 amends the Coastal Management Act 1995 and renames the 'Victorian Coastal Management Council' to the 'Victorian Coastal Council'. make amendments consequent upon the Council's name change.

Clause 37 substitutes a new sub-section (2) for existing sub-sections (2) and (3) in section 7 of the Act to alter the membership criteria of the Council from a representative one to a skills based criteria. Clause 38(1) amends section 11 by increasing the membership of the Board from '10' to '12' and clause 38(2) substitutes a new sub-section (2) for existing sub-sections (2) and (3) altering the membership criteria for appointment to the Board from a representative one to a skills based criteria.

Clause 39 inserts a new section llA of the Act to provide that a member of a Board is not to be taken to hold an office of profit under the Crown which would prevent the member sitting or voting as a member of the Victorian Parliament or which would void election to the Parliament or prevent a member from continuing to be a member of Parliament; or subject the member to liability to pay a penalty under the Constitution Act1975.

Clause 41(3) inserts a new paragraph after clause three (3) of the schedule of the Coastal Management Act 1995 to provide that no member of Parliament is entitled to receive fees and travelling and other allowances as a member of the Board.

The Committee notes the effect of section 49 of the Constitution Act 1975:-

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Except where express prorJision is made by any Act or enactment no person who holds any public office .. . shall sit or vote in the Parliament, and the election of any such person shall be null and void.


Tire Committee notes that the new section 11A is an express provision permitting a member to hold an office of public profit notwithstanding the effect of section 49 of the Constitution Act 1975. Tire Committee also notes that the combineil effect of the provisions (Cllluse 39 and 41(3)) is that members of Parliament may seroe on such Boards but receive no pecuniary benefit from doing so.

Clause 43 inserts a new section 4(2)(da) in the Parks Victoria Act 1998 and permits Parks Victoria to take land on lease and grant sub-leases of leased land.


Consumer Credit (Finance Brokers) Bill

3.1

The Bill was introduced into the Legislative Assembly on 2 September 1998 by the Honourable Jan Wade MP with the Honourable Phil Gude MP. The Second Reading Speech was delivered on 3 September 1998.

3.2

The Bill repeals the Finance Brokers Act 1969 and re-enacts selected consumer protection provisions in the Consumer Credit (Victoria) Act 1995 (the Act). The Committee notes the comments in the Second Reading Speech:-

3.3

The Bill implements the recommendations of a National Competition Policy Review by removing unnecessary restrictions on the finance braking industry while retaining and improving protections for clients of this industry.

The Bill abolishes the requirement for finance brokers to be licensed. The National Competition Policy Review concluded that licensing was not necessary to achieve the objective of the existing provisions. Instead, the bill puts in place a tailored series of prohibitions to exclude those who might present an unacceptable risk of fraudulent or predatory behaviour. Application for permission to practise despite some disqualifying factors will be able to be made to the business licensing authority, as in the case under the Estate Agents Act 1980 and the Motor Car Traders Act 1986.

Clause 2 The amendments commence operation on 1 July 1999.

Clause 4 inserts a new Part 4A into the Act providing for new sections 37 A to 37U in the Consumer Credit (Victoria) Act 1995. The new section 37B allows the Governor in Council by Order published in the Government Gazette to declare that the Part either wholly or to the extent specified does not apply to a specified person or class of persons or a transaction or class of transactions.

Clause 4 {Cont.) the new sections 37C and 37D specify certain persons (natural and corporate) who are prohibited from engaging in finance broking. 37E specifies who are

109


disqualified persons for the purposes of sections 37C and 37D. 37E(2) provides an exemption for persons, who before the commencement of the amendments held a licence under the Finance Brokers Act 1969 or an equivalent Act of a State or Territory. Pursuant to 37F disqualified persons may apply to the Authority for permission to engage in or be involved in finance broking and pursuant to 37G the Authority may give permission if it is satisfied that it is not contrary to the public interest for it to do so. In doing so the Authority is not required to hold a hearing, may require the applicant to provide such information as it considers necessary and may seek and use information from any source it thinks proper. 37H in granting permission the Authority may impose conditions. 371 makes provision for a right of appeal to the Victorian Ovil and Administrative Tribunal against findings under 37G or 37H.

37J sets out requirements to be fulfilled before finance brokers may demand or accept fees. Notwithstanding 37J, 37K makes provision for brokers to charge reasonable costs and expenses in certain circumstances. 37N-P deal with the jurisdiction of courts and the Tribunal to order recovery of fees and costs from brokers contravening the Act. In comparison to section 24 of the Finance Brokers Act 1969 the new section 37R provides for penalties for misrepresentation for individuals, for a first offence of 30 p.u. (formerly 15 p.u.) and a new subsequent offence category has been created of 60 p.u. or six months imprisonment. Further there are new penalty provisions for corporations, providing for 30 and 60 penalty units for first and subsequent offences respectively.

37T provides that after 1 July 1999 the Director must send a notice to every person holding licences prior to 1 July 1999, to return their licences to the Director within 14 days of receipt of such a notice. Penalty 30 p.u.

Clause 8 repeals the Finance Brokers Act 1969.


Health Services (Further Amendment) Bill

4.1

The Bill was introduced into the Legislative Assembly on 2 September 1998 by the Honourable Denis Napthine MP with the Honourable Phil Gude MP. The Second Reading Speech was delivered on 3 September 1998.

4.2

The main purpose of the Bill is to amend the Health Services Act 1988 (the Act).

• to provide that trusts in relation to a registered funded agency are not affected by any amalgamation or aggregation of that agency or any declaration of a multi purpose service;

• to amend the provisions relating to Medicare principles;

• to enable the removal of directors of metropolitan hospitals during their term of office; and

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Alert

• to make miscellaneous amendments to provisions relating to multi purpose services and amalgamated and aggregated bodies.

4.3

Clause 2 The amendments commence on Royal Assent (excepting section 6). Section 6 comes into operation on proclamation, but not later than on 1 July 1999.

Clause 4 inserts a number of definitions in the Act which concern amendments relating to trusts. The Committee notes the comments in the Second Reading Speech:-

The Bill addresses a number of problems that have arisen in relation to the Act's operation. In particular, the resolution of difficulties relating to trusts will enable betjuests and donations to bodies to be used in the provision of health services. The Bill will also ensure that there is no need for a trustee to engage in expensive legal proceedings to determine how the trust may be distributed, in those circumstances where the amalgamation, or aggregation or declaration would have otherwise created doubt as to the appropriate course of action.

Clause 6 substitutes a new section 17AA in Part 2A of the Act (Medicare Principles and Commitments). The new section 17AA(1) provides 'that the principles contained in any agreement in force from time to time between the Commonwealth and Victoria with respect to the provision of public hospital services are established as guidelines for the delivery of public hospital services in Victoria.' The current section 17 AA publishes the principles in the body of the Act (see 17 AA(2)).

As with the existing section 17AA(3), the new section 17AA(2) provides that the principles are not intended to give rise to any legal rights or any civil cause of action.


Section 17 AA currently describes the Medicare principles and commitments which are to guide the delivery of public hospital services in Victoria. These principles are based upon the old Medicare agreement. The new agreement outlines the principles that are to guide the delivery of public hospital services for the next five years. It is appropriate for the Act to reflect the current agreement between the Commonwealth and the State, rather than the principles as stated in an agreement which has expired.

Accordingly, the Bill inserts a new section 17AA which states the delivery of public hospital services in Victoria will be guided by the principles as outlined in the relevant agreement between the State and the Commonwealth as in force from time to time. This is preferable to stating the principles directly in the Act, as it will mean that there will automatically be consistency between the Act and the Agreement that is then in force.

The Committee is concerneil at the incorporation by reference into the Act of the Medicare Principles by agreements in forr::e from time to time between the Commonwealth and Victoria? The Committee further notes that the former Principles were reproduced as part of the Act (section 17AA(2)) and that the Principles in the new Agreement are not made available for Parliament's consideration either as a schedule to the Bill or as a separate document at the time Parliament is asked to consider the Bill.

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Scrutiny of Acts and Regullltions Committee

The Committee will write to the Minister expressing concern at the incorporation by reference of material into the Act and seek clllrification that the Principles and Commitments described in the Second Reading Speech do not constitute any impingement upon legislative provisions.

The Committee will also seek information from the Minister as to the method by which new agreements will be notified to Parliament and the public.

Alteration or variation of section 85 of the Constitution Act 1975 (section 4D(i) and (ii) of the Parliamentary Committees Act 1968)

Clause 12 inserts a new section 157F in the Act declaring that it is the intention of the new section 17AA(2) to alter or vary section 85 of the Constitution Act 1975. (Section 157C of the Act is the current 'limitation of jurisdiction' provision for the existing section 17AA.)


New section 17AA(2) provides that nothing in part 2A gives rise to, or can be taken into account, in any civil cause of action. In particular, it states that it does not create in any person legal rights not in existence before the commencement of clause 6. This replaces a provision to the same effect that currently applies in relation to the existing section 17AA.

The new section does not take away any legal rights that currently exist; hawever it does make it clear that it does not create any new legal rights. The reason for limiting the jurisdiction of the Supreme Court in this way is that it is appropriate to continue to prevent liability arising as a result of the new section. The purpose of the amendment is to give statutory recognition to the principles for the delivery of public hospital services, as a reflection of the importance of those principles. This recognition is not intended to create any legal entitlements or to enable the principles to be enforced through the courts.


Clause 7(1) amends section 40G(2) of the Act and allows the Governor in Council on the recommendation of the Minister to remove a director or all directors of a board of a metropolitan hospital. The existing legislation omits the words underlined.

Clause 7(2) amends section 40G(3). The existing section provides that 'the Minister may not recommend the removal of a director of a board unless the Minister is satisfied that' the director (a) is physically or mentally unable to fulfil the role of director of a board; (b) has been convicted of certain offences; (c) has been absent without leave for more than six months or, (d) becomes insolvent. The new section 40G(3) makes these grounds a mandatory basis for removal and provides that 'the Minister must recommend the removal of a director of a board from office if the Minister is satisfied that' the director is (a), (b), (c) or (d) as above.

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Section 40G of the Act provides that the directors of a board of a metropolitan hospital (known as health care networks), can only be remaved during their term of office an the grounds of physical or mental incapacity, finding of guilt for an offence which affects suitability to be a director, absence from all board meetings without leave over a six month period, or insolvency.

The original rationale for the pravision was to guarantee stability of board membership to enable network boards to be able to proceed with planning for the redevelopments within their then newly established network of campuses.

The Government has the utmost confidence that the directors of the boards of gavernance of networks will carry out their important functions effectively and with great care. Nonetheless, as a rule acts confer a general power to remove directors or members of boards of public bodies. This is appropriate to ensure adequate accountability by directors to gavernment and the community. There is such a general power in relation to members of boards of management of rural public hospitals under the Act, and for directors of State Business Corporations under the State Owned Enterprises Act.

The amendments are generally consistent with these processes. They pravide that:-

• Directors may be removed by the Gavernor in Council on the recommendation of the Minister. In practice such a power could be used in relation to directors who do not perform their duties satisfactorily; and

• The Minister must recommend remaval where a director is physically or mentally unable to act as a director, has been found guilty of an offence which the Minister considers renders him or her unsuitable to be a director, is absent without leave from all board meetings for 6 months, or is insolvent.

Alteration or variation of section 85 of the Constitution Act 1975 (section 4D(i) and (ii) of the Parliamentary Committees Act 1968).

Clause 13 inserts a new section 178 into the Act headed 'Savings provision: validity of things done by trustees'. Clause 12 declares that it is the intention of the new section 178 to alter or vary section 85 of the Constitution Act 1975.


Clause 13 inserts a new section 178 into the Act. Clause 12 provides that it is the intention of the new section 178 to alter or vary section 85 of the Constitution Act 1975.

New section 178 contains two savings pravisions relating to the acts or omissions of trustees. The amendments to sections 65, 65D, 65F, 115A, 115U and 115V of the Act contained in this Bill relating to trusts apply in relation to amalgamations, aggregations and to declarations of a multi purpose service which took effect prior to the commencement of clause 13 of this Bill.

The Act, as amended by this Bill, has effect with respect to these orders and declarations, and with respect to trust instruments in relation to each former agency of a successor agency created by the order or declaration, as if all of these amendments were in force when the orders and declarations were made. They apply retrospectively to confer an

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Scrutiny of Acts atul. Regulations Committee

entitlement or eligibility under a trust which applied in relation to each former agency upon each new successor agency from the date that the relevant order creating the successor agency took effect. This is to validate any distributions that have already been made under a trust on the mistaken basis that a successor was eligible or entitled, as a result of the then existing provisions of the Act, to benefit frum a trust because its former agency was so eligible or entitled.

New section 178(1) provides that anything done or omitted to be done before the commencement of clause 13 by a trustee that would not have been a breach of trust if this Bill was enacted at the time of the act or omission, is not to be regarded as constituting a breach of trust and the trustee is not liable for breach of trust.

The reason for this limitation of the jurisdiction of the Supreme Court is that it is appropriate to protect trustees and those who have benefited frum trusts, where the trustee has distributed a benefit on the mistaken basis that a successor agency was eligible or entitled to benefit under a trust that applied in relation to one of its former agencies. This protection accords with the intention of the Bill to validate such distributions.

New section 178(2) provides that nothing is effected by this Bill is to be regarded as making a trustee liable for a breach of trust on account of anything done or omitted to be done before the cummencement of clause 13, that would not have constituted a breach of trust had this Bill never been enacted.

The reason for this limitation of the jurisdiction of the Supreme Court is that it is appropriate to protect a trustee, and those who have benefited from trusts administered by the trustee, where the trustee has acted lawfully in the past. There is to be no liability in relation to any act or omission, where liability might otherwise now arise solely as a result of the retrospective application of the changes to the law contained in this bill. For example, if a trustee had correctly considered that the eligibility of a former agency to benefit under a particular trust was not conferred upon its successor agency by the act as it was then in force, no one should be able to challenge that decision as a result of the effects of this Bill.


The Committee also notes the retrospective operation of the new sections 177 atul. 178 as they relate to trusts and any acts and/or omissions done before the commencement day by a trustee and believes that they are appropriate in all the circumstances.

Clause 14 repeals section 22 of the Miscellaneous Acts (Health and Justice) Amendment Act 1995. That section is a sunset provision which, if not repealed, would cause Part 4A of the Act, relating to multi purpose services, to expire in December 1999. Its repeal will allow Part 4A to continue to operate indefinitely.


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Land (Further Revocation of Reservations) Bill

5.1

The Bill was introduced into the Legislative Assembly on 2 September 1998 by the Honourable Marie Tehan MP with the Honourable Phil Gude MP. The Second Reading Speech was delivered on 3 September 1998.

5.2

The Bill provides for the revocation of reservations over certain areas of land, to repeal the Bendigo (Dai Gum San Village) Land Act 1975 and other purposes.

5.3


The Bill provides for the revocation of permanent reservations of Llnds described in the schedules to the Bill. The Bill removes these reservations either to facilitate disposal or because the purpose of the reservation is no longer appropriate for the future use of the Llnd.

The Bill also provides for the repeal of the Bendigo (Dai Gum San Villilge) Act 1975.

Clause 2 Saving Part 3 and Schedule 4, the Act comes into operation on Royal Assent Part 3 and Schedule 4 commence on proclamation but not later than 1 July 1999.

Clauses 8 to 10 provide for the revocation of the portion of the former Fairfield Hospital site not included in the Forensic Psychiatry Institute. The Committee notes the comments in the Second Reading Speech:-

Follawing the revocation of the current reservation affecting the Llnd, the remainder of the site, which includes parkland areas and the Aids Memorial Garden, will be permanently reserved as a public park and memorial gardens. The Northern Melbourne Institute ofT AFE has agreed to manage the site. Officers of the Victorian Aids Council have indicated that this is likely to be acceptable to the Council.

The reservation of the Aids Garden area will ensure that the site remains a permanent memorial for those who hAve died from the Aids virus. It will continue to be a retreat for family and friends whose loved ones ashes are spread over the site and for peaple living with HW and Aids.


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Scrutiny of Acts and Regulations Committu

Legal Practice (Amendment) Bill

6.1

The Bill was introduced into the Legislative Assembly on 2 September 1998 by the Honourable Jan Wade MP with the Honourable Phil Gude MP. The Second Reading Speech was delivered on 3 September 1998.

6.2

The Bill amends the Legal Practice Act 1996 (the Act) with respect to professional indemnity insurance and for other purposes.

6.3

Clause 2 the amendments to the Act commence operation on 15 December 1998.

Clause 4 amends certain definitions in the Act including a definition for 'approved auditor'. The new sub-definition (e) provides, subject to sub-section (3), has completed or substantially assisted in carrying out the audit of the trust account of at least 2 (or such higher number as is prescribed) firms, legal practitioners or approved clerks in respect of any of the previous 3 audit years'. The existing provision in sub-definition (e) provides, 'has completed a trust account audit, as an employee or a principal, on at least 2 occasions (or such higher number as is prescribed) in the previous calendar year.'

Clause 8 inserts a new section 41A ('Variation of practising certificate conditions pending criminal proceedings') providing that where a lawyer is charged with a 'relevant offence' (defined by section 41A(5)) but the charge has not yet been heard and decided, the Legal Ombudsman, Legal Practice Board or the lawyer's Recognised Professional Association (RPA) may apply to the Full Tribunal of the Legal Profession Tribunal (defined by section 400 of the Act) for orders varying the lawyer's practising certificate. Any party may apply at any time to vary or revoke the orders. A new section 41B provides that a party may apply to the Court of Appeal on a question of law.

Clause 9 amends section 63ZA providing that foreign lawyers must maintain professional indemnity insurance on terms and conditions approved by the Board.

Oause 10 amends section 74(3) and provides that 'at least 21 days before a practice rule made by it is to take effect, an RPA must publish a copy of the rule in its official publication' the existing provision provides that the RPA need only publish a notice including a summary of the rule. The clause further amends section 74(4)(b) requiring an RPA to forward a copy of its practice rules, as in force for the time being, to each regulated practitioner every three years whereas the current provision require this to occur once evezyyear.

Clause 11(4) amends section 92 providing that a client must request a written report before a practitioner is required to make a progress report to the client. The current provision makes it mandatory to provide such a written report at reasonable intervals without request.

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Clause 14 inserts a new sub-section (ab) in section 137 of the Act further defining 'unsatisfactory conduct' to include 'conduct by a legal practitioner or firm in the course of engaging in legal practice that would be regarded by a legal practitioner or firm in good standing as being unacceptable including, (i) conduct unbecoming a legal practitioner, (ii) unprofessional conduct.'

Clause 17 inserts a new section 182A requiring practitioners, on request of the Board to provide to it, details of trust account balances, other than individual client trust account balances.

Clause 19(1) substitutes a new section 208(3)(b) of the Act relating to entitlements to claim against the Fidelity Fund providing that a claim does not lie against the Fidelity Fund in situations where clients provide money to a lawyer for the purpose of investment or reinvestment which is not incidental to the legal practice of the practitioner or made in the course of or in connection with the administration of the estate of a deceased person. The Committee notes the comments in the Second Reading Speech:-

The Fidelity Fund is set up by the Ad to cover money which is stolen from trust accounts by solicitors. However, money can be given to a lawyer for a variety of reasons, some of which are re111ted to the legal practice run by the 111wyer and others are not. It is not appropriate, for instance, for the Fidelity Fund to act as an insurer or guarantor of bad business or investment risks and decisions taken by a client, nor should it be expected to cover hypothetical interest or income which may have been promised to the client to take action against his or her 111wyer in appropriate circumstances to pursue such issues.

In addition, amendments are being introduced which will provide that what are effectively appeals to the Supreme Court against decisions by the Legal Practice Board to disallow a cl11im against the Fidelity Fund are usually to be taken as a wt resort. These are based on provisions contained in the previous Act.


Clause 19(2) amends section 212(2) of the Act and provides that a person is not entitled to commence a proceeding against the Fidelity Fund without the leave of the Board, unless (a) the Board has wholly or partially disallowed the claim, and, (b) the person has exhausted all other rights of action and other legal remedies in respect of the loss the subject of the claim, and, (c) if more than 3 (three) months have elapsed since the Board has given written notice to the claimant of the claim's disallowance.

Clause 32 inserts a new section 444(2) of the Act stating that it is the intention of 212(2) as amended by clause 19(2) of the Bill to alter or vary section 85 of the Constitution Act 1975.


Section 212(2) currently provides that a person is not entitled without leave of the Court to commence a proceeding to assert a c111im against the Fidelity Fund unless the Board has disallowed the c!J1im wholly or partly. CIJ1use 19 provides that proceedings to assert a c111im cannot be brought until the Board has considered and disallowed the c!J1im wholly

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or in part and, in addition the claimant has either exhausted alternative legal remedies or obtained leave from the Board to bring the proceeding. This is to enable the better management of the fund's resources to ensure that they are not dissipated through unnecessary and costly litigation when the Board has investigated the claim and has formed the view that the claim does not come within the requirements of the Act and the claimant has other viable means available to him or her of recovering the loss.


Clause 23 inserts a new section 233A into the Act allowing the Legal Practitioners Liability Committee with the approval of the Legal Practitioners Board to impose an additional levy on practitioners where the Committee believes the amount standing to the credit of the Legal Practitioners Liability Fund is likely to be insufficient to meet the liabilities to which it is subject. Unpaid levies may be recovered in the Magistrate's Court as a debt.

Clause 26 sets out additional delegation powers that RPA's may make in writing to their officers, employees or committees.

Clause 27 inserts a new section 330A into the Act providing that the Board may by written notice require a conveyancer to give the Board any information or documents reasonably required by the Board to determine whether the conveyancer has complied with section 330. (By section 330, conveyancers must disclose insurance details in public documents and display notice of such insurance in conspicuous place where business is carried on.)

Clause 28 amends section 361 of the Act to allow the Legal Practice Board to delegate in writing certain powers and functions to a member, employee or committee of the Board.

Clause 30 inserts a new section 425A into the Act allowing the Legal Ombudsman to delegate, in writing,. certain powers under Part 5 of the Act (Disputes and Discipline) to an employee referred to in section 425(1), provided the employee is eligible to be appointed as Legal Ombudsman. (a person is not eligible to be appointed as Ombudsman if, at any time in the preceding 7 years, the person has engaged in legal practice.)

Clause 31 inserts a new Division 2A into Part 19 of the Act headed 'Investigation of offences'. New section 441A allows the Board to appoint appropriate persons, including it's own employees, to investigate offences. The new 441B provides that a person must produce for inspection or copying by the inspector any records reasonably required by the inspector and give the inspector any other information he or she reasonably requires. Penalty: 50 penalty units.

441B(l) provides that for the purpose of an investigation under the Division a person must produce for inspection or copying by the inspector any records reasonably required by the inspector and give the inspector any other information he or she reasonably requires. 441B(2) provides that a person may not refuse to comply with 441B(l) on the ground of legal professional privilege or any other confidence; or that the production of the record or giving the information may tend to incriminate him or her. However, 441B(3) provides that if the privilege against self-incrimination is relied on before the giving of the information or record, the information or record is

118


inadmissible in evidence other than in proceedings for an offence in relation to the giving of false and misleading information.

441B(5) imposes an obligation on a financial institution, despite any duty or confidence to the contrary, to without charge, produce for inspection or copying by the inspector any records or provide any other information held by it, that the inspector reasonably requires for the purpose of the investigation. Penalty: 50 penalty units.

441C provides for entry powers with warrant valid for up to seven days from time of issue, in accordance with the rules and forms to be observed with respect to search warrants as provided for and prescribed by the Magistrates' Court Act 1989.


Mutual Recognition (Victoria) Bill

7.1


7.2

The main purpose of the Bill is to continue the adoption of the Mutual Recognition Act 1992 (the Act) of the Commonwealth. The Committee notes the comments in the Second Reading Speech:-

The Bill continues Victoria's adoption of the Commonwealth's Mutual Recognition Act 1992. It is pari of a national legislative scheme, the goal of which is to promote the freedom of movement of goods and service providers between all the Australian States and Territories.

The Mutual recognition Principle is that:

• Goods that may be sold in one State or Territory may be sold in another State or Territory; and

• A person registered to practise an occupation in one Australian State or Territory is entitled to practice an equivalent occupation in another Australian State or Territory.

The Bill re-adapts, pursuant to section 51(37) of the Commonwealth Constitution, with effect from 1 July 1998 (Being the date on which the Mutual Recognition (Victoria) Act 1993 expired.)

The Bill provides that Victoria's adoption of the Commonwealth Act will tenninate on a day fixed by the Governor in Council by proclamation in the Government Gazette. A similar provision is made to the Trans-Tasman Mutual Recognition (Victoria) Act 1998.

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7.3

These provisions give Victoria the greatest flexibility in terminating its involvement in the two mutual recognition schemes, if necessary.

The Bill also validates all actions done after 1 July 1998 and before the enactment of the Bill.

Clause 2(1) Part 1, section 8 in Part 2 and Part 3 commence on Royal Assent.

Clause 2(2) provides that Part 2 (except section 8) is deemed to have come into operation on 1 July 1998.

Clause 4 adopts the Commonwealth Act for a period commencing on 1 July 1998 and ending on the termination day, as determined under clause 6.

Clause 6 provides that the Governor in Council, by proclamation published in the Government Gazette, may fix a day as the day on which the adoption of the Commonwealth Act under section 4 of this Act terminates.

The Committee believes that legislative expiry should generally be treated similarly to commencement. The Committee believes that an open ended expiry clause would not seem to have sufficient regard for the institution of Parliament and would have to be clearly justified. Whilst the Committee notes the comments of the Minister in the Second &ading Speech it will write to the Minister seeking further clarification for the reasons why a termination by proclamation clause is regarded as necessary in this instance, rather than a repealing Act.

Clause 7 is a validation provision, providing that anything done or purporting to have been done after 1 July 1998 (Being the date of the expiry of the Mutual &cognition (Victoria) Act 1993) and before the enactment of the Bill is deemed to have been as valid as if the 1993 enactment had not expired.

The Committee notes the retrospective effect of Clause 2(2) and Clause 7 and notes the comments of the Minister in the Second &ading Speech. In the circumstances the Committee believes the provisions are appropriate and desirable.

Clause 9 amends section 4(2) of the Trans-Tasman Mutual &cognition (Victoria) Act 1998 so as to alter the date fixed for the expiry of that Act. Originally the Act was to end 5 years from the date of the commencement of that Act. It is now to expire on the date determined in accordance with the amended section 6 of the Act. The amendment will make that provision consistent with clause 4 of the Bill. Clause 10 amends section 6 of the Trans-Tasman Mutual &cognition (Victoria) Act 1998 to provide that the Governor in Council may fix a day as the day on which the adoption of the Commonwealth Act (being the Trans-Tasman Mutual Recognition Act 1997) terminates.

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The Committee believes that legislative expiry should generally be treated simiillrly to commencement. The Committee believes that an open ended expiry cilluse would not seem to have sufficient regard for the institution of Parliament and would have to be clearly justified. Whilst the Committee notes the comments of the Minister in the Second Reading Speech it will write to the Minister seeking further c!llrification for the reasons why a termination by procillmation cilluse is regarded as necessary in this instance, rather than a repealing Act.


Petroleum Bill

8.1

The Bill was introduced into the Legislative Assembly on 2 September 1998 by the Honourable Pat McNamara MP with the Honourable Phil Gude MP. The Second Reading Speech was delivered on 3 September 1998.

8.2

The purpose of the Bill is to regulate petroleum exploration and production in Victoria and to repeal and re-enact, with amendments, the Petroleum Act 1958 and for other purposes.

8.3

Clause 2 The Act commences on proclamation but not later than on 1 December 1999.

Clauses 6, 7 and 8 provide definitions for 'petroleum', 'petroleum exploration' and 'petroleum production' respectively.

Clause 127 deals with occupiers liability for the purposes of Part IIA of the Wrongs Act 1958 and the rules of common law with respect to the holder of an 'authority'. Clause 128 prohibits petroleum operations on private land without consent or agreement on compensation. Clause 129 enumerates the types of compensation for loss and damage payable by an authority holder to the owners and occupiers of private and native title land. Clause 131 compensation is not payable for petroleum in or under the surface of any land. Clause 132 deals with compensation payable in respect to damage and loss sustained as a result of petroleum operations on Crown land. Clause 133 places a three year time limit on compensation after the loss and damage has occurred or after the petroleum exploration authority is surrendered or expires. Clause 134 provides for the referral of disputes to the Victorian Civil and Administrative Tribunal. Clause 136 makes provision for Native Title rights to prevail over certain provisions of the Act.

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The Bill recognises the rights of Native Title holders as provided for by the Commonwealth Native Title Act 1993 and therefore ensures its validity and the validity of authorities issued.

Clause 146 deals with lands that may have special aboriginal significance and provides that a holder of an authority must take reasonable steps to ensure that the petroleum operation will not contravene the Archaeological and Aboriginal Relics Preservation Act 1972 nor the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth).

Clause 198 allows the Minister to appoint inspectors for the purpose of monitoring compliance with the Act. Clause 199 allows inspectors powers of entry and search on premises, and with the consent of occupiers, a residence, to carry out inspections at any reasonable hour in the daytime and at any time that the premises is open for business, to determine whether there has been compliance.

==~~ provides for entry and search powers on any premises (not being a residence) at any time to deal with certain emergencies. An inspector exercising these powers must produce on request his or her identity card for inspection by the occupier. Emergency is characterised as an immediate risk:-

a. that one or more people might be injured; or

b. that property may be seriously damaged; or

c. that significant damage may occur to the environment; or

d. that significant damage may occur to any petroleum, source of petroleum or reservoir.

=~~~ provides for search and seizure powers where evidence of an offence is suspected. Clause 203 deals with the issuance of search warrants in the usual way pursuant to the Magistrates' Court Act 1989. Clause 204 provides for an announcement by an inspector before entry pursuant to a search warrant Clause 208 allows inspectors to use or operate equipment at the premises to carry out the examination or processing of a thing found at the premises, to determine if it is a thing that should be seized. Clause 209 allows inspectors the power to use and seize electronic equipment on premises to access certain information. Clause 210 provides that the Minister must pay compensation for any damage caused by the exercise of search and seizure powers.

Clause 213 gives an inspector power to require persons to give information or provide documents. The giving of false or misleading information is an offence. Penalty 240 p.u. Clause 214 protects a natural person from the requirement of giving selfincriminating information. Clause 215 provides that it is an offence to obstruct or hinder an inspector.

Clause 223 provides for fines for corporations of up to five times the amount of the maximum fine imposed on an individual for that offence under the Act (though not the regulations).

Clause 245 is the delegation making power for the Minister and the Head of the Department. Clause 249 the Minister may approve codes of practice. Clause 252 allows

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Alert

the Governor in Council to make regulations for the purposes of the Act. 252(2)(f) provides:-

The regulations may provide in a specified case or class of case for the exemption of people or things from any of the provisions of this Act, whether unconditionally or on specified conditions, and either wholly or to such an extent as is specified.

The Committee is concerned at the very broad regulation making power sought to be introduced by clause 252(2)(/) and notes that a similar provision is not contained in the Act to be repealed. The Committee is concerned that notwithstanding the detailed provisions of the Act1 specified cases or classes of cases may be exempted from the operation of the Act either in part or in whole either with conditions or unconditionally. The Committee further notes that no explanation is provided in either the Explanatory Memorandum or the Second Reading Speech for the necessity of such a wide regulation making power.

The Committee is of the view that clauses which allow for the amendment of the relevant Act by subordinate legislation, such as a regulation declaring that an Act or a provision of an Act does not apply to, or applies with prescribed changes, are generally objectionable.

The Committee will write to the Minister seeking comment as to why such a broad regulation making power is necessary and why it should note be regarded as a generally objectionable 'Henry Vlll clause'."'

•(A Henry VIII clause' is a clause in an Act of Parliament which enables the Act to be expressly or impliedly amended by subordinate legislation or Executive action.)

Clause 253 repeals the Petroleum Act 1958.


Planning and Environment (Amendment) Bill

9.1

The Bill was introduced into the Legislative Assembly on 2 September 1998 by the Honourable Rob Maclellan MP with the Honourable Phil Gude MP. The Second Reading Speech was delivered on 3 September 1998.

9.2

The Bill amends the Planning and Environment Act 1987 (the Act) to provide for the Melbourne Airport Environs Strategy Plan and for other purposes. The Committee notes the comments in the Second Reading Speech:-

The Melbourne Airport Environs Strategy Plan will help ensure the Airport, probably the State's most important strategic site, retains its key competitive advantages of 2Ahour curfew-free operation; an integrated passenger terminal complex; large areas of

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9.3

surrounding rural land, allowing minimal impact of aircraft noise on nearby residential areas; enormous potential for expansion with uncongested airspace, unrestricted airfield capacity and a fine weather reputation.

==~ Sections 1 and 2 commence on Royal Assent, the remaining provisions commence on proclamation but not later than on 1 July 1999.

Clause 3 inserts a new Part 3C into the Act dealing with the Melbourne Airport Environs Strategy Plan. Clauses 6 and 7 extends the provisions for cost recovery for panels, advisory committees and environment effects inquiries. The Committee notes the comments in the Second Reading Speech:-

Currently there is broad and accepted responsibility that the potential beneficiaries of planning processes ought to make contributions to the public costs of doing so. The Bill makes sure that these provisions also apply to processes that have to date been exempt from the cost recovery principles. It is only equitable that these changes be made.


Victorian College of the Arts (Amendment) Bill

10.1

The Bill was introduced into the Legislative Assembly on 2 September 1998 by the Honourable Phil Honeywood MP with the Honourable Phil Gude MP. The Second Reading Speech was delivered on 3 September 1998.

10.2

The Bill amends the Victorian College of the Arts Act 1981 (the Act) by reducing the membership of the Council of the College, provides for changes in the Council's ability to acquire and dispose of land and makes other miscellaneous amendments.

10.3

Clause 2 Sections 1 and 2 commence on Royal Assent and the remaining provisions on 1 January 1999.

==~substitutes new sections 7 and 8 of the Act and reduces the Council size from 26 to 18 and sets out the new constitution of the Council. Clause 6 amends provisions relating to the removal of Council members appointed by the Minister and the vacation of certain positions on the Council by the change of status of the Council member originally elected or appointed. Clause 9 substitutes new sections 17 and 18 of the Act respectively dealing with the declaration of pecuniary interests of Council members and the holding of Council meetings. Clause 18 inserts a new section 39 and 40 into the Act and deals with transitional arrangements for the initial appointment to the restructured Council.


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Victorian Institute of Marine Sciences (Repeal) Bill

11.1

The Bill was introduced into the Legislative Assembly on 2 September 1998 by the Honourable Pat McNamara MP with the Honourable Phil Gude MP. The Second Reading Speech was delivered on 3 September 1998.

11.2

The Bill repeals the Victorian Institute of Marine Sciences Act 1974 (the Act) and transfers the Institutes assets and liabilities to the State.

11.3

Oause 2 Sections 1 and 2 commence on Royal Assent the remaining provisions commence on proclamation but not later than on 1 July 1999.

Clause 8 states that all employees of the Institute will be transferred to the employ of the Department of Natural Resources and Environment on existing terms and conditions. Clause 9 transfers the Institute's existing assets and liabilities to the State. Clause 10 revokes statutes made by the Institute's Board under section 18 of the Act. Clauses 11 and 12 deal with the validation of an agreement and actions taken under the agreement made pursuant to the Act.


Committee Room Monday 5 October 1998

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126



on the

Accident Compensation (Amendment) Bill Appeal Costs Bill Bail (Amendment) Bill Building (Plumbing) Bill Crimes (Amendment) Bill Education (Amendment) Bill Uquor Control Reform Bill Local Government (Governance and Melton) Bill MacKillop Family Services Bill Melbourne Cricket Ground (Amendment) Bill Patriotic Funds (Amendment) Bill Road Safety (Further Amendment) Bill Superannuation Acts {Amendment) Bill Trade Measurement (Administration)(Amendment) Bill Transport (Amendment) Bill

Tuesday,20 October 1998

127



Accident Compensation (Amendment) Bill Appeal Costs Bill Bail (Amendment) Bill Building (Plumbing) Bill Crimes (Amendment) Bill Education (Amendment) Bill liquor Control Reform Bill Local Government (Governance and Melton) Bill MacKillop Family Services Bill Melbourne Cricket Ground (Amendment) Bill Patriotic Funds (Amendment) Bill Road Safety (Further Amendment) Bill Superannuation Acts (Amendment) Bill Trade Measurement (Administration)(Amendment) Bill Transport (Amendment) Bill


128

Accident Compensation (Amendment) Bill Appeal Costs Bill Bail (Amendment) Bill Building (Plumbing) Bill Crimes (Amendment) Bill Education (Amendment) Bill liquor Control Reform Bill Local Government (Governance and Melton) Bill MacKillop Family Services Bill Melbourne Cricket Ground (Amendment) Bill Patriotic Funds (Amendment) Bill Road Safety (Further Amendment) Bill Superannuation Acts (Amendment) Bill Trade Measurement (Administration)(Amendment) Bill Transport (Amendment) Bill


Accident Compensation {Amendment) Bill

1.1

The Bill was introduced into the Legislative Assembly on 7 October 1998 by the Honourable Alan Stockdale MP with the Honourable Phll Gude MP. The Second Reading Speech was delivered on 8 October 1998.

1.2

The Bill amends the Accident Compensation (WorkCover Insurance) Act 1993 and the Accident Compensation Act 1985.

1.3

Clause 2 provides for commencement dates for various provisions of the Bill. Clause ~applies retrospectively and provides that section 35 is deemed to have come into operation on 26 May 1998. Clause 35 repeals incorrect consequential amendments made by Schedule 1 of the Public Sector &form (Miscellaneous Amendments) Act 1998 under the heading" Occupational Health and Safety Act 1985."

The Committee notes that the retrospective operation of clause 35 of the Bill is curative in nature and is designed to correct an unintended legislative consequence and is therefore appropriate and justified in the circumstances.

Part 2 deals with the amendments to the Accident Compensation (WorkCover Insurance) Act 1993. (referred to as the Act for the purposes of Part 2)

Clause 3 substitutes a new section 1 of the Act and modifies the purposes of the Act to reflect the changes to the provision of WorkCover insurance made by this Part. Under the changes, WorkCover insurance will be provided in the first instance, by the Victorian WorkCover Authority rather than as at present, provided initially by authorised insurers, with the WorkCover insurance liabilities of those authorised insurers then being fully re-insured with the Authority. Oause 5(1) amends section 7(1) of the Act and imposes a legal obligation on employers to obtain and keep in force a WorkCover insurance policy with the Authority rather than with an authorised insurer, in respect to their workers.

Clause 5(4) inserts a new sub-section (8) into section 7 which provides that a WorkCover insurance policy issued or deemed to have been issued before the commencement of Part 2 of the Bill is deemed to have been issued under the Act as amended by Part 2 of the Bill.


Clause 18 inserts a new Part 7 into the Act. New section 75(1) has the effect of cancelling any licence to be an authorised insurer under the Act in force immediately before the commencement of clause 18. New section 75(2) provides that any right or privilege acquired or accrued against the State of Victoria or the Victorian WorkCover

129


Authority in respect of a licence cancelled by that section is extinguished, despite anything to the contrary in section 14(2) of the Interpretation of Legislation Act 1984. New section 75(3) provides that, despite any Act or law to the contrary, the State of Victoria and the Victorian WorkCover Authority are not liable in any way for any loss, or damage or injury whatsoever resulting from the cancellation of any licence under this section. New section 75{4) provides that, except as otherwise provided in the section, the cancellation of a licence under the section does not effect any rights, obligations and liabilities accrued or incurred before the commencement of Part 2 of the Bill.

New section 77 provides that it is the intention of section 75 to alter or vary section 85 of the Constitution Act 1975. The Committee notes the comments in the Second Reading Speech:-

The reason for these limitations of the jurisdiction of the Supreme Court is that the Bill introduces a new legal framework for the publicly funded and underwritten WorkCover compensation scheme, a new framework in which all existing authorised insurers will have the opportunity to participate if they so wish. In addition, all liabilities of authorised insurers to indemnify employers under WorkCover insurance policies or to pay compensation under the Accident Compensation Act 1985 will be, by virtue of amendments made by the Bill, transferred to the Victorian WorkCover Authority. In these circumstances, it is appropriate to ensure that neither the State of Victoria nor the Victorian WorkCover Authority is amenable to any suit as the result of the cancellation of the existing authorised insurer licences.



Clause 18 also inserts a new section 76(1) providing that any re-insurance arrangement in force under section 34 of the Act immediately before the commencement of clause 18 is by virtue of section 76 terminated. New section 76(2) provides that, despite any Act or law to the contrary, the State of Victoria and the Victorian WorkCover Authority are not liable in any way for any loss, or damage or injury whatsoever resulting from the termination of a re-insurance arrangement under this section. New section 76(3) provides that the termination of a re-insurance arrangement under the section does not effect any rights, obligations and liabilities accrued or incurred before the commencement of Part 2 of the Bill.

New section 77 provides that it is the intention of section 76 to alter or vary section 85 of the Constitution Act 1975. The Committee notes the comments in the Second Reading Speech:-

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The reason for this limitation of the jurisdiction of the Supreme Court is that all liabilities in respect of which authorised insurers are indemnified under the relevant re-insurance arrangements will be, by virtue of amendments made by the Bill, transferred to the Victorian WorkCover Authority. It is therefore appropriate to ensure that neither the State of Victoria nor the Victorian WorkCover Authority is


amenable to any suit as the result of the termination of the existing re-insurance arrangements.


Part 3 amends the Accident Compensation Act 1985 (referred to as the Act for the purposes of Part 3).

Clause 27 amends section 63 of the Act to increase the maximum number of doctors that can constitute a Medical Panel from three to five.

Clause 28 amends section 93C of the Act relating to claims for weekly payments made before 12 November 1997, so as to modify the manner in which and the basis on which a worker coming within the scope of 93C, who does not have a serious injury and has a current work capacity, may remain entitled to weekly payments after 104 weeks of weekly payments. The effect of these amendments is to import into section 93C the procedure and eligibility criteria that apply to post 12 November 1997 claims under section 93CD.


As pari of the changes to the weekly payments regime under the Accident Compensation Act made during the 1997 sittings of Parliament, provision was made for workers with a current work capacity to be entitled to weekly payments beyond 104 weeks if they had returned to work for at least a minimum number of hours per week, with at least minimum weekly earnings and if they were working at their full capacity.

This new, more generous basis of entitlement applies both to workers coming within the "new" payments regime and those workers coming within the "grandfather" provisions inserted as part of the 1997 amendments. It was intended that the same test of "full capacity" and the same procedure for determining workers' entitlements would apply to both classes of workers. Legal advice has been received that this has not been achieved. The Bill remedies the situation.

Clause 29 amends section 99AAA of the Act relating to co-ordinated care programs by providing for the extension, and also the possible repeal, of the sunset provisions affecting that section. The new sunset period expires on 1 January 2001.


Appeal Costs Bill

2.1

The Bill was introduced into the Legislative Assembly on 7 October 1998 by the Honourable Jan Wade MP with the Honourable Phil Gude MP. The Second Reading Speech was delivered on 8 October 1998.

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Scrutiny of Acts and R£gullltions Committee

2.2

The purpose of the Bill is to re-enact, with amendments, the Appeal Costs Act 1964 and for other purposes. The Committee notes the comments in the Second Reading Speech:-

2.3

This Bill repeals the current Appeal Costs Act 1964 and replaces it with a new, simpler and clearer Act.

In so doing, the Bill implements the government's justice policy objective of reforming the justice system so that it is accessible and efficient.

Since its enactment in 1964, the current Act has undergone a succession of substantial amendments. However, it has never been comprehensively reviewed. As a consequence, the coherence of the Act has been undermined and anomalies have arisen.

The principal objective of this Bill is to address these inconsistencies and anachronisms to ensure that the underlying policies of the appeal costs scheme are properly reflected in the legislation.

Clause 2 provides that sections 1 and 2 commence on Royal Assent. The remainder of the Bill commences on proclamation but not later than by 1 April 1998. provides for various definitions to be used in the new Act. Of special significance is the new definition for "discontinued" which no longer preserves the distinction between "abortive proceedings" and "discontinued proceedings".

Clauses 4 to 13 (Part 2) deal with entitlements to payment of appeal costs in civil matters. Clauses 14 to 18 (Part 3) concern entitlement to payment of appeal costs in criminal matters.

Clause 19 is a new entitlement provision correcting an anomaly in situations where a case stated on a question of law is reserved for the opinion of a superior court. Under the Act to be repealed a court did not have power to grant an indemnity certificate in a case stated situation. (Ref: Victorian Court of Appeal in Mason v Mason (No. 2) [1997] 1 VR 627.)

Oauses 20 to 31 provides that the Appeal Costs Board under the former Act continues to exist, sets out it's functions, membership, powers and provides for other administrative matters.

A1teration or variation of section 85 of the Constitution Act 1975 (section 4D(i) and (ii) of the Parliamentary Committees Act 1968)

Clause 37(1) provides that the grant of an indemnity certificate is in the discretion of the court, and clause 37(2) provides that no appeal lies against a grant or refusal of an indemnity certificate by a court.

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Clause 40 states that it is the intention of section 37(2) to alter or vary section 85 of the Constitution Act 1975. The Committee notes the comments in the Second Reading Speech:-

Clause 38 of the Bill is intended to alter or vary section 85 of the Constitution Act 1975 to the extent necessary to prevent the bringing before the Supreme Court of an appeal against a grant or refusal by a court of an indemnity certificate.

The reason for altering or varying section 85 in this way is to prevent the further escalation of costs. A major objective of the Bill is to reduce the impact on litigants of the costs of appeals. It would be undesirable if, in carrying out this objective, the Bill were to provide an opportunity to bring further appeals.

The prohibition of appeals against the granting or refusal of an indemnity certificate in clause 38 re-enacts the prohibition contained in section 17(1) of the current Act.

The Committee notes that the reference to clause 38 in the Secand Reading Speech is in error and that the correct reference should be to clause 37(2). The Committee further notes that the effect of the provisions of section 85(5)(b) and (c) of the Constitution Act 1975 will require an amending statement to be made by the Minister clarifying and amending the incorrect reference in the Second Reading Speech before the third reading of the Bill.


Clause 41 provides for regulations to be made by the Governor in Council for the purposes of the Act. Oause 42 allows the Board to pay practitioners and/or Victoria Legal Aid direct and thereby discharging the Board's liability to the person in respect of the matter. Clause 43 makes it dear that the Act only applies to new proceedings. Clause 45 repeals the Appeal Costs Act 1964.


Bail (Amendment) Bill

3.1

The Bill was introduced into the Legislative Council on 6 October 1998 by the Honourable Louise Asher MLC. The Second Reading Speech was delivered on 7 October 1998.


3.2

The Bill amends the Bail Act 1977 (the Act) and clarifies the conditions for granting of bail for certain drug offences. The Committee notes the comments in the Second Reading Speech:-

3.3

The Bill amends the Bail Act 1977 in order to clarify the test which the court should apply before it grants bail to a person charged with importation of narcotic goods under the Commonwealth Customs Act 1901.

The amendment provides that the court must be satisfied that exceptional circumstances exist before bail is granted to persons charged with importation of a narcotic drug under the Customs Act where the offence involves a commercial quantity of drugs as defined under the Victorian legislation.

Clause 2 the amendments to the Act commence on 1 January 1999. Clause 4 repeals the now redundant definitions of "cocaine" and "heroin" in the Act. (the definitions appear in the schedules and definitions section of the Drugs, Poisons and Controlled Substances Act 1981).

Clause 5 amends section 4(2)(aa)(ii) of the Act and provides that the court must be satisfied that exceptional circumstances exist before bail is granted to persons charged with narcotic drug importation offences under the Commonwealth Customs Act 1901 where the offence concerns an amount of drug that is not less than a commercial quantity as defined in section 70(1) of the Drugs, Poisons and Controlled Substances Act1981.

Clause 6 provides that the amendment in the Bill only applies with respect to a charge filed on or after 1 January 1999.


Building (Plumbing) Bill

4.1

The Bill was introduced into the Legislative Council on 6 October 1998 by the Honourable Roger Hallam MLC. The Second Reading Speech was delivered on 7 October 1998.

4.2

The Bill amends the Building Act 1993 (the Act). The main purposes of the amendments are; to replace the Plumbing Industry Board with the Plumbing Industry Commission; to establish a Plumbing Industry Advisory Council; to regulate refrigeration mechanics; to generally improve the operation of Part 12A of the

134


Building Act 1993; and to improve the operation of the provisions relating to the sale of buildings by owner-builders.

4.3

Clause 2 sections 1 and 2 come into operation on Royal Assent. The remaining provisions, other than section 6, come into operation on proclamation but not later than by 31 December 1999 and section 6 not later than by 31 December 2000.

Clause 3 inserts a new Division 9 and 9A into Part 12A of the Act. New 221ZZR establishes a new Plumbing Industry Commission (the Commission) to replace the former Plumbing Industry Board and provides for ifs powers, constitution, functions, staff and like matters. Further section 221ZZXA establishes a Plumbing Industry Advisory Council and provides for ifs functions and constitution and like matters.

Clause 8 amends section 221D(5) of the Act to remove the exemption that applies to refrigeration mechanics from the requirement to be licensed or registered under Part 12A of the Act to carry out plumbing work

Clause 9 amends sections 221T(3) and 221ZB(3) of the Act to empower the Commission to require that applications for a licence or registration or a renewal of a licence or registration as a plumber must be accompanied by a photograph of the applicant.


Crimes (Amendment) Bill

5.1

The Bill was introduced into the Legislative Council on 6 October 1998 by the Honourable Louise Asher MLC The Second Reading Speech was delivered on 7 October 1998.

5.2

The Bill makes amendments to the Crimes Act 1958 (the Act). The purpose of the Bill is to make further provision for offences relating to loitering near places frequented by children; to make further provision for offences relating to the contamination of goods; and to make further provision relating to legal representation of an accused.

5.3

Oause 2 The amendments {other than section 5) commence on Royal Assent. Section 5 commences on 1 January 1999.

Clause 3 substitutes a new sub-section (1) in section 60B of the Act expanding the definition of usexual offence" to include (i) offences against sections of the Crimes Act

135


1958 which have been repealed or replaced; and (ii) offences of conspiracy to commit or incitement to commit relevant sex-related offences.

The clause also amends section 60B(2) to include prostitution offences involving children amongst the offences to which the offences of loitering relates; and increases the maximum penalty for loitering from 1 year or a $12,000 fine to 2 years or a $24,000 fine. In the case of a person who has been found to be a serious sexual offender within the meaning of Part 2A of the Sentencing Act 1991 the penalty is increased to a maximum of 5 years imprisonment or a fine of $60,000.


Sedion 60B, which was introduced in 1993, makes it an offence for a person who has been found guilty of certain sex-related offences to loiter without reasonable excuse in or near places which are frequented by children, such as playgrounds or schools.

At present section 60B refers to specific section numbers of the Crimes Act in force at the time that section 60B was enacted. Because of successive amendments to the Crimes Act, the section numbers which relate to particular offences have changed over the years.

For example, section 60B defines "sexual offence" to include an offence against section 46 of the Crimes Act. Since 1991, section 46 has dealt with the offence of sexual penetration of a child between the age of 10 and 16; however, before 1991 that offence was dealt with under section 48.

This means that a person who is found loitering in a kindergarten playground can be prosecuted under section 60B if he or she had previously been convicted of the offence of sexual penetration of a child in 1992, but not if he or she had previously been convicted af sexual penetration af a child in 1989. The amendment ensures that section 60B will apply to persons who have been found guilty af relevant prior sexual offences, regardless of when those offences were committed.

The Bill also increases the maximum penalty under section 60B from one year imprisonment to two years imprisonment. In cases where the offender's prior conduct was so grave that they came within the definition of a "serious sexual offender" under the Sentencing Act, the maximum penalty is increased to five years imprisonment.

Finally, the Bill extends section 60B to include loitering by persons who have been convicted of certain prostitution offences involving children. These offences include causing or inducing a child to take part in prostitution.

Clause 4 inserts a transitional provision to clarify that the amendments to section 60B apply only to loitering offences which are alleged to have been committed after the commencement of clause 3.

Oause 5 repeals the existing section 248 of the Act and enacts new sections 248 to 252 concerning offences relating to the contamination of food. The sections concern:-

s.248. Definitions;

s.249. Contaminating goods with intent to cause public alarm or economic loss;

136


s.250. Threatening to contaminate goods with intent to cause public alarm or economic loss;

s.251. Making false statements concerning contamination of goods with intent to cause public alarm or economic loss.

New section 252 gives the new Division extra~territorial operation providing that it is immaterial that the conduct occurred outside Victoria so long as the person intended by that conduct to cause public alarm or anxiety in Victoria or to cause economic loss in Victoria.

Clause 6 inserts three new su~sections into section 360A of the Crimes Act 1958. New section 360A(4)(a) will enable a court to take into account any vexatious or unreasonable conduct engaged in by the accused that has contributed to his inability to afford legal representation.


ThE Bill amends section 360A of thE Crimes Act. Section 360A was introduced in 1993 to address the potential deadlock which could arise as a consequence of the decision of the High Court in Dietrich v The Queen (1992) 177 CLR 292.

Over thE years since its enactment a number of issues have arisen in the way in which thE section operates.

The Bill makes the following changes to section 360A:

It enables the court to have regard to any vexatious or unreasonable conduct engaged in by thE accused. For example, cases have arisen where thE accused brings a lo.rge number of preliminary applications as a tactic to delo.y the trial and then applies for an order under section 360A on thE ground that they no longer have enough money to afford to pay for representation in the trial. This amendment will prevent the section from being abused in this way.

ThE Bill makes it clear that it is for the accused to prove that hE or shE cannot afford the cost of obtaining representation, rather than for Victoria Legal Aid to prove that he or shE can. The accused knows his or her financial situation better than thE court or VLA.

It also makes it clear that thE court's power to order Victoria Legal Aid to provide assistance is limited to thE provision of legal representation.


137


Education (Amendment) Bill

6.1

The Bill was introduced into the Legislative Assembly on 7 October 1998 by the Honourable Phil Gude MP with the Honourable Rob Maclellan MP. The Second Reading Speech was delivered on 8 October 1998.

6.2

The Bill amends the Education Act 1958 (the Act). The main purposes of the Bill are:- to make provision relating to religious instruction in connection with pageants, spedal events or celebrations of festivals; and to repeal outdated provisions relating to assessment and education of students with disabilities or impairments.

6.3

Clause 2 The amendments, other than section 9(1 ), come into operation on Royal Assent. Section 9(1) has retrospective effect and is deemed to have commenced on 1 July 1998.

Clause 4 amends section 23(2) of the Act to enable the Minister to authorise the conduct of religious instruction during the hours set apart for the instruction of the pupils, on the basis other than the class organisation of the school, if it forms part of the preparation or conduct of a pageant, special event or celebration of a festival. A new section 23(2A) allows the Minister to give appropriate authorisation to all schools, a class or classes or classes of schools or a spedfic school.


138

Many state schools in our culturally diverse state celebrate significant religious events with pageants or celebrations as part of the religious and cultural life of the school community. Parents and students delight in participating in activities that hold special meaning for them and for other members of the school community.

The preparation for the pageant or the holding of the pageant may include some element of religious instruction. For example, it may involved an address by a Minister or priest, or the teaching of the meaning and significance of a religious song.

At present, any religious instruction associated with the preparation and holding of a pageant, must comply with section 23 of the Education Act. That section limits the circumstances in which religious instruction may be given in state schools. Section 23(2) provides that when religious instruction is given in any state school during the hours set apart for the instruction of pupils, it must be given by accredited representatives of religious bodies who are approved by the Minister, it must be given on the basis of the normal class organisation of the school (except where the particular circumstances of the school cause the Minister to authorise some other basis), and attendance for religious instruction must not be compulsory.

This section requires that any religious instruction associated with the preparation for religious pageants, special events or celebrations of festivals can be undertaken at


school, during normal instruction hours, but only on a class by class basis. If the religious instructors want to bring a number of classes together to practise, they can only do so during lunch time, before or after normal school hours or off the school premises.

If the pageant, special event or celebration of a festival involves a religious address or other religious instruction to pupils, a school can only conduct the pageant or celebration during lunch time or other non instruction time, or off school premises.

This complex situation has the potential for creating unnecessary barriers to communities celebrating significant events, and for creating unfortunate anomalies. For example, a school with a convenient nearby facility could permit its students to spend time during school hours at the facility preparing or conducting a religious event. Meanwhile, another school that permitted its classes to combine for a short time, on school premises, on a single occasion to prepare for or celebrate a religious event could be in breach of the Act.

To remedy these anomalies and to facilitate the holding of pageants, the Bill authorises the Minister to permit religious instruction to be given in state schools during the hours set apart for the instruction of students on basis other than a class by class basis, if the religious instruction forms part of the preparation or conduct of a pageant, special event or celebration of a festival.

We live in a culturally diverse society that includes people with various religious beliefs, people with no interest in religion and in some cases, people with strongly held opposition to any teaching of religion. In recognition of the diversity of our community and the range of beliefs about religion, the Bill provides that any event that involves religious instruction will continue to be voluntary, as mandated by section 23(2)(c) of the Act.

Clause 7 inserts a new section 25AA into the Act providing that a parent of a student with a disability or impairment is not required to contribute to the cost of the provision of additional support for the education in a State school of that student.

Clause 8 amends section 64N(4) of the Act by removing the term "handicapped child" and substituting the term "pupil with a disability or impairment".

Clause 9(1) amends section 5(3) of the Act by removing the words "Chief Executive" and substituting "Secretary's" and in section 13(9) deleting references to the "Director" and substituting "Secretary". Both amendments are retrospective and are deemed, by virtue of clause 2(2) to have taken effect on 1 July 1998.

The Committee notes that by clause 2(2) clause 9(1) is deemed to have retrospective operation as of 1 July 1998. The Committee notes the amendments are machinery of government nomenclature provisions and in the circumstances are justified.


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Liquor Control Reform Bill

7.1

The Bill was introduced into the Legislative Assembly on 7 October 1998 by the Honourable Tom Reynolds MP with the Honourable Phil Gude MP. The Second Reading Speech was delivered on 8 October 1998.

7.2

The Bill reforms the law relating to the supply and consumption of liquor, to repeal the Liquor Control Act 1987, to make consequential amendments to other Acts and for other purposes.

7.3

Clause 2 Part 1 of the Act comes into operation on Royal Assent. The remaining provisions commence on proclamation but not later than by 1 July 1999.

The Committee notes and reproduces relevant extracts of the Minister's Second Reading Speech:-

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New structural arrangements are to be implemented for the delivery of liquor licensing seT'V!ces.

A position of Director of Liquor Licensing is to be created to determine all uncontested licence and licence related applications, and subject to the recommendation of the Liquor Licensing Panel, contested applications.

A Liquor Licensing Panel is to be established to provide a recommendation to the Director as to whether or not contested applications should be granted.

Parties aggrieved at any decision of the Director may appeal the decision to the Victorian Civil and Administrative Tribunal.

Disciplinary proceedings against licensees initiated by the Victoria Police, the Director or local government will be heard by the Victorian Civil and Administrative Tribunal.

Any person is to be able to object to the grant of a licence or variation on the grounds that it would be detrimental to the amenity of the area.

It will not be a valid basis of objection that there is insufficient need or demand to justify the grant of an application.

Current provisions in respect of the objection rights of Victoria police and local government are to remain.


Existing offence provisions are to remain. Additionally a new offence of being knowingly involved in a false application for a proof-of-age card is created as recommended by Victoria police.

A person under 18 years of age is to be allowed in licensed restaurants and cafes, during ordinary trading hours, but not purchase or consume liquor, otherwise than is currently provided in the Act. This permission will not apply in respect of bars, hotels, nightclubs etc.

Existing licensees are to maintain their current trading rights in the transition to the new licence types. Conditions on existing liquor licenses are to remain.

The "dry area" provisions are to remain. In determining any future legislative change, the government will be bound by the outcomes of a poll conducted by a relevant council or councils to determine whether affected residents (being those who live within the boundaries of the dry area) wish to amend, retain or abolish the current provisions.

The existing offence provisions are to remain in place, including the successful initiatives introduced in 1995 to further limit the potential for underage access to, and purchase/drinking of liquor on licensed premises except that youth are to be able to attend licensed restaurants and cafes, but not purchase or consume liquor, otherwise than is currently provided, during ordinary trading hours.

ln respect of breaches of the Act, Victoria police will continue to have the option of issuing infringement notices or initiating proceedings in the Magistrates Court and/or before the Victorian Civil and Administrative Tribunal seeking suspension/cancellation of a liquor licence.

Councils/Shires and the Director of Liquor Licensing will also be able to initiate proceedings against licensees through the Victorian Civil and Administrative Tribunal.

Clause 4 sets out the objectives of the Act, including the minimisation of harm arising from the abuse of alcohol and to provide adequate controls over the supply and consumption of liquor. Clause 5 establishes a Co-ordinating Council to advise the Minister on problems of alcohol abuse.

Oause 6 provides the Act does apply in certain cases such as at religious services, perfumeries, medical purposes and the other purposes listed therein.

Part2

Oauses 7 to 15 deal with the eight categories of licences and permit that may be issued under the Act.

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Clauses 38 to 43 deal with objections to licences on the grounds of detriment to amenity and where the prospective licensee is considered not to be a fit and proper person to justify a grant. The section also sets out reasons that are not considered valid objections such as commercial based objections, such as insufficient need or demand to justify grant.

Clauses 44 to 57 deal with the determination of applications including the manner in which contested applications are to be determined. Clause 58 allows the Director to vary a licence or permit at his or her own initiative. Clauses 59 to 62 deal with renewal of licences and permits, and clauses 63 to 66 with the surrender and lapse of licences and permits.

Part3

This Part deals with special requirements and procedures applicable to certain kinds of licences.

Clauses 71 to 74 deal with casino premises. Section 73 exempts such premises from certain requirements such as notification and display requirements (ss.33-36), objections to licensing (ss.38-43) and the determination process for applications (ss.44-47).

Clauses 75 to 79 deal with the Australian Grand Prix. Section 77 exempts certain declared areas during the race period from certain requirements of the Act such as notification and display requirements (ss.33-36), objections to licensing (ss.38-43) and the determination process for applications (ss.44-47). Oause 78 allows the Chief Commissioner to make objection to a grant on any grounds he or she thinks fit

Clause 87 deals with the review of a decision made by the Director to grant, refuse, transfer, the imposition of a condition or variation of a licence or permit by the Victorian Civil and Administrative Tribunal (the Tribunal).

Part6

Clauses 90 to 97 concern the holding of inquiries relating to alleged contraventions to certain provisions of the Act and other Acts. Clause 96 allows the Tribunal to cancel or suspend a licence or permit.

PartS

This part deals with offences and enforcement provisions. Division 2 deals with underage drinking offences. Clause 124 creates a number of offences relating to the wrongful dealing, defacing or making of an evidence of age document. Clause 125 creates an offence of falsely procuring a proof of age card.

Clause 126 provides police powers to demand a suspected minor to give name, age and address; and where so required, to provide further evidence of same; and where required to do so, to sign a statement to such effect in circumstances where police have reason to believe a person is under 18 and has requested or received or consumed liquor or is on a licensed or authorised premises. It is an offence to refuse to provide these details and such refusal can lead to arrest without warrant. Clause 127 allows police to seize evidence of age documents (other than a driver

142


licence) where they suspect the document is false. Clause 128 the police may seize liquor in the possession of a person under 18.

Clause 129 enables an authorised person to demand entry at any time to any licensed premises (but not part of a premises that is a residence, unless prior notice is given or consent obtained). H admittance is refused or wilfully delayed, the person demanding entry may break into the premises. The Director may give authority to the Commissioner of State Revenue to authorise tax officers powers under this section. An "authorised person" is defined in section 129(7) and includes a member of the police force, an authorised tax officer and a licensing inspector.

Oause 130 deals with general warrants to enter and search. Oause 131 permits the seizure of liquor not authorised to be supplied on licensed premises under the licence or permit Clause 132 on request of the licensee or pemittee the police are required to assist in expelling certain persons asked to leave the licensed premises whose presence would subject the licensee to a penalty under the Act. Oause 133 authorised persons are permitted to enter licensed premises and seize documents relating to liquor supply. The Director may give authority to the Commissioner of State Revenue to authorise tax officers powers under this section.

Oause 134 provides for the presumption in legal proceedings, that a person is taken to be the holder of a licence or permit Clause 135 provides that where an informant asserts a certain matter the assertion is evidence of that matter namely that; a liquid is liquor; that the person is a resident; that the premises on which the alleged offence took place were licensed or authorised premises; or that the person had not attained that age. Oause 136 provides that proof of certain matters is evidence of related matters and further provides that where an informant asserts a certain matter the assertion is prima facie evidence of that matter unless evidence to the contrary is shown. Oause 138 a Magistrate may order certain property or liquor seized under the Act, to be forfeited to the Crown. An appeal against such forfeiture lies to the County Court. Clauses 141 to 148 deal with infringement notices.

Part9

Clauses 149 to 156 deal with the appointment functions and powers of the Director.

Clauses 157 to 161 deal with the establishment composition, powers and functions of the Liquor Licensing Panel. Oauses 162 to 170 relate to hearings before the Panel. Oause 171 empowers Panel members to enter premises for the purpose of considering any contested applications. Clause 172 permits the Chief Commissioner to appoint members of the police force to be licensing inspectors for the purposes of the Act. Clause 180 allows for regulation to be made to give effect to the Act.

Clause 181 provides for the repeal of eight (8) Acts set out in Schedule 2 including the Liquor Control Act 1987. Clause 182 provides for savings and transitional provisions as set out in Schedule 3.

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Scrutiny of Acts and Rl!gu.llltions Committu

Schedule 3

Existing licences

Clauses 3 and 4 of Schedule 3 provide that a licence or a permit that was granted under the repealed Act is deemed to be a particular licence or permit granted under the Act and preserves the conditions of licences granted under the repealed Act but enables the Director to remove conditions at his or her own initiative or on application of the licensee or permittee. Clause 14 of Schedule 3 provides that a person disqualified under the repealed Act from holding a licence or permit continues to be disqualified under the Act.

Dry areas

Clauses 17 and 18 of Schedule 3 continue the dry areas policy where the electors by a majority vote oppose the granting of a licence and also provides the relevant Council may conduct a poll to determine whether that dry policy be maintained altered or repealed.

Schedule 4 makes consequential amendments to various Acts.


Local Government (Governance and Melton) Bill

8.1

The Bill was introduced into the Legislative Assembly on 7 October 1998 by the Honourable Rob Maclellan MP with the Honourable Phil Gude MP. The Second Reading Speech was delivered on 8 October 1998.

8.2

The Bill amends the Dockltznds Authority Act 1991 to give the Docklands Authority the powers of a municipal council in respect of the docklands area; to amend the City of Melbourne Act 1993 to excise the docklands area from the municipal district of the Melbourne Gty Council; to amend the Local Government Act 1989 to enable the residents and ratepayers of the Shire of Melton to choose how their Council is to be administered; and to make consequential amendments to other Acts.

8.3

Clause 2 Part 1 and 3 and section 13 come into operation on Royal Assent. The remaining provisions commence on proclamation but not later than by 31 December 1999. The Committee notes the comments in the Second Reading Speech:-

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The present Docklands Authority Act 1991 already gives the Authority some of the responsibilities of a municipal council. This Bill will enable the Authority to take on


the full range of the functions, powers and duties of a municipal manager in the docklands area.

Oause 3 amends section 3 of the Docldan4s Authority Act 1991 (the Docklands Act) and inserts a definitions for "municipal functions", "public notice", and "voter'' into that Act. Oause 4 inserts a new Part 3A (sections 35B to 35Z) into the Docklands Act in relation to municipal functions. New section 35B makes it clear that the docklands area is not part of a municipal district. New section 35D allow the Authority to make local laws in respect of its municipal functions. New section 35E allows the Authority to levy rates and charges to cany out municipal functions.

New section 35N empowers the Authority to appoint, and if necessary dissolve, an advisory committee to be formed to advise it in its municipal functions. 35P provides for the conduct of a poll of voters on any proposition relating to municipal functions. The Authority must conduct a poll if one-tenth of the voters request a poll. 35Z provides that the Authority must have regard to the result of a poll in making a decision or a recommendation to the Minister. Clause 15 allows for regulations to be made. Clause 17 inserts a new Part 7 "Transitional", in the Docklands Act (new sections 57 to 64). New section 58 provides that the land in the docklands area is to be severed from the municipal district of the Melbourne City Council on the commencement day. Clauses 18 to 25 make consequential amendments to eight (8) other Acts resulting from the severance of the docklands area referred to in new section 58.

Clause 26 inserts a new Part 12 (new sections 244 to 265) in the Local Government Act 1989 applying to the Melton Shire Council. The Committee notes the comments in the Second Reading Speech:-

This Bill also introduces amendments to the Local Government Act 1989 to enable the residents and ratepayers of the Shire of Melton to choose whether their municipality should continue to be administered by Commissioners or whether there should be a return to elected Councillors.

As Members are aware, the Shire of Melton was established on 15 December 1994 as part of the state wide restructuring of local government in Victoria. In December 1996 a poll was conducted by the Australian Electoral Commission at the request of the Melton Shire. Over 52% of enrolled voters returned a vote in that poll, with 71% of valid votes in favour of Commissioners continuing to administer the Shire until March 1999. Against this background, and in the context of other issues around restructuring, the Commissioners' appointment was extended for a further 2 year term, due to expire in March 1999.

A number of representations have recently been received from voters in the Shire of Melton indicating support for the conduct of a further poll of voters in the municipality to determine whether Commissioners slwuld be retained. These representations have highlighted the success of the continued administration of Melton by Commissioners. As the government would like to respond to these representations, the Bill will introduce amendments to the Local Government Act 1989 which will facilitate the lwlding of a poll in order to determine the views of the voters of Melton. Thus, the people themselves can decide whether the Council should continue to be

145


administered by Commissioners, or whether there should be a return to elected Councillors.

The main principles underlying the amendments contained in the Bill are as follows:

(i) there will be a poll of voters to allaw the voters to determine whether the Minister should appoint Commissioners to constitute the Council, or whether there should be a return to elected Councillors;

(ii) as the poll deals with issues of representation, voting at the poll will be compulsory;

(iii) the Minister will announce the poll by public notice in the Government Gazette.

The notice will include the proposition to be put to voters and the entitlement date for the poll;

(iv) the poll will be regarded as carried if

(a) the number of valid votes recorded is not less than one half of the number of voters on the voters' roll; and

(b) a majority of the valid votes recorded are in favour of Commissioners continuing to be appointed.

(v) voting at the poll is to be by postal ballot only;

(vi) if Commissioners are appointed as a result of the poll, they will continue to be reappointed by the Minister for further 3 year terms unless a new poll is requested by 10% of voters and held, in which the outcome is a majority vote in favour of a return to elected Councillors.


MacKillop Family Services Bill

9.1

The Bill was introduced into the Legislative Council on 6 October 1998 by the Honourable Rob Knowles MLC. The Second Reading Speech was delivered on 7 October 1998.

9.2

The purpose of this Bill is to make provision for the vesting in MacKillop Family Services Limited A.C.N. 078 299 288, ('MacKillop') of certain property given for charitable purposes to the Christian Brothers, Sisters of Mercy and Sisters of St Joseph or certain agencies in connection with those purposes. The Bill will:-

146


• make provision for the vesting in MacKillop of certain property given for charitable purposes;

• provide that certain gifts and trusts for charitable purposes do not fail but have effect as if made or declared to or in favour of MacKillop; and

• enable MacKillop to establish investment pools for the collective investment of trust funds for charitable purposes.


9.3

A new Catholic child, youth and family services organisation, MacKillop Family Services, came into effect in July 1997. MacKillop Family Services was incorporated under the Corporations Law of Victoria on 28 April1997. MacKillop Family Services is a shared Ministry of three Catholic Congregations - The Christian Brothers, The Sisters of Mercy and The Sisters of St ]oseph.

Clause 2 the Act comes into operation on the day on which it receives the Royal Assent.


Melbourne Cricket Ground (Amendment) Bill

10.1

The Bill was introduced into the Legislative Assembly on 7 October 1998 by the Honourable Marie Tehan MP with the Honourable Phil Gude MP. The Second Reading Speech was delivered on 8 October 1998.

10.2

The Bill amends the Melbourne Crick£t Ground Ad 1933 (the Act).

10.3

Clause 2 Sections 1 and 2 commence operation on Royal Assent. The remaining provisions commence operation on proclamation but not later than by 1 February 2000.

Oause 5 replaces existing section SA in the Act providing for the appointment of trustees to the Trust. The Bill provides for the appointment by the Governor in Council of a chairperson and six trustees having experience in sports, sports administration, business and financial or community affairs.

Oause 7 deals with appointment of members of the Trust's meetings, staff and like matters. Under the new provisions former Premiers of the State will cease being

147


trustees of the Trust as of right (former section SA(1)(e)). New section 61 allows the Minister to give written directions to the trust after consultation with the Treasurer. The Trust must comply with such direction. Oause 11 inserts a new section SA into the Act prohibiting unauthorised commercial exploitation of the name "Melbourne Cricket Ground", or the initials "MCG". Clause 12 permits free lifetime access to the public areas of the ground for all sporting events to former Trustees other than Trustees representing a club.


Patriotic Funds (Amendment} Bill

11.1

The Bill was introduced into the Legislative Council on 6 October 1998 by the Honourable Louise Asher MLC. The Second Reading Speech was delivered on 7 October 1998.

11.2

The purpose of the Bill is to amend the Patriotic Funds Act 1958 (the Act) to extend the application of patriotic funds to members of the Australian naval, military and air forces and their dependants for relief or assistance in connection with service or duty other than in connection with a war; to make provision in relation to property purchased with patriotic funds; to make further provision for the transfer of patriotic funds; and to make other miscellaneous amendments to the Act.

11.3

Clause 2 sections 1 and 2 commence on Royal Assent. The remaining provisions commence on proclamation but not later than by 1 July 1999. Oause 4 makes a number of amendments to the definition of the meaning of "patriotic fund".


148

The Bill proposes to broaden the existing membership and beneficiary bases within the Act by amending the definition of "patriotic fund" so that funds may be applied to relieve financial hardship suffered by service personnel or their dependants in circumstances additional to direct connection with a war. This proposed amendment will ensure that seruice personnel who are injured, or the dependants of those killed, during exercise training operations, such as the Blackhawk helicopter disaster in North Queensland in 1996, will be eligible for assistance under the Act.

This expansion of the class of beneficiaries is a desirable development given that these funds, which were originally established for returned servicemen, continue to operate even though Australia has not participated in a proclaimed war for some time, and that the number of persons entitled to benefit from the funds is diminishing through natural attrition.


Clause 10 amends section 23 of the Act to increase from 10 to 50 penalty units the fine for unauthorised collection of funds. Clause 12 replaces various references where occuring in the Act from '"m connection with the war" to "in connection with any service or duty".


Road Safety (Further Amendment) Bill

12.1

The Bill was introduced into the Legislative Council on 6 October 1998 by the Honourable Geoff Craige MLC. The Second Reading Speech was delivered on 7 October 1998.

12.2

The Bill amends the Road Safety Act 1986 (the Act) and the Transport Accident Act 1986. The Bill deals with the operation of the demerit points system; the circumstances in which the Roads Corporation may disclose information gained by it; and the period of operation of certain Regulations.

12.3

Clause 2 provide for the commencement of various provisions of the Act some of which are dependant on the commencement of provisions contained in the Road Safety (Amendment) Act 1998 and the Road Safety (Driving Instructors) Act 1998. Sections 1, 2, 3 and 7 commence on Royal Assent other provisions commence on proclamation but not later than by 1 June 1999.

Clause 4 amends and improves the operation of the demerit points system. The new sub-sections (4C) and (4D) of section 25 make it dear that a suspension of licence under the demerit points system is additional to any other period of licence cancellation or suspension and cannot be served concurrently.

Clause 5 amends section 92 of the Act to enable information to be disclosed for the purposes of the national exchange of vehicle and driver information (NEVDIS) system and to facilitate vehicle safety recalls.

Clause 7 inserts a new section 95C and extends the operation of the existing regulations under the Act to 1 March 2000 unless they are sooner revoked. It also provides that section 5 of the Subordinate Legislation Act 1994, relating to the automatic revocation of statutory rules, does not apply to those regulations.


This Bill continues the process of fine-tuning the Road Safety Act in preparation for the introduction of further national uniformity measures and the commencement of new regulations to replace those due to sunset on 8 February 1999.

149


Drafts of the new regulations are being made available for public comment together with regulatory impact statements but there is a concern that the size of the task is such that much of the public comment will not be available until after the Parliament has risen and it will be too late then to postpone the sunset, should that course appear desirable. The Bill therefore contains a protective measure which is in the form of an extension of the existing regulations until 1 March 2000 unless the Regulations are sooner revoked.

I stress that this is a protective measure and that the present intention is to have the new regulations come into force on or as close as possible to the February 1999 sunset date.

Clause 8 amends section 96 of the Act to substitute a reference to certain provisions of the Subordinate Legislation Act 1994 in place of provisions of the repealed Subordinate Legislation Act 1962 in its application to various subordinate instruments under the Road Safety Act 1986.


Superannuation Acts (Amendment) Bill

13.1

The Bill was introduced into the Legislative Assembly on 7 October 1998 by the Honourable Alan Stockdale MP with the Honourable Phil Gude MP. The Second Reading Speech was delivered on 8 October 1998.

13.2

The Bill makes miscellaneous amendments to the following specified Superannuation Acts (the Acts):-

• Emergency Services Superannuation Act 1986;

• Hospitals Superannuation Act 1988;

• Parliamentary Salaries and Superannuation Act 1968;

• Public Sector Superannuation (Administration) Act 1993;

• State Employees Retirement Benefits Act 1979;

• State Superannuation Act 1988;

• Superannuation (Portability) Act 1989; and

• Transport Superannuation Act 1988.

150


13.3

Clause 2 Section 39 is deemed to have come into operation 18 June 1996. Sections 31 and 40 come into operation on 1 January 1999. The remaining provisions commence on Royal Assent. Oause 39 retrospectively amends the Public Sector Superannuation (Administration) Act 1993 by inserting a new section 68C


Amendments are proposed to be made to the Public Sector Superannuation (Administration) Act 1993 to reinstate repealed provisions relating to former State Casual Employees Superannuation Fund contributors who transferred membership to the Victorian Superannuation Fund in 1995. The 1995 amendment Act initiating this transfer and providing for the continuation of entitlements for the people transferred was repealed in 1996. These proposed amendments reinstate the relevant empowering provisions back to the date of repeal to ensure all transferred members continue to receive the same entitlements that applied before the transfer.

The Committee notes that the retrospective operation of clause 39 of the Bill is curative in nature and is designed to remedy a legislative consequence that may have operated detrimentally to certain State Superannuation Fund contributors if left uncorrected. In the circumstances the Committee believes the amendment is justified.

Clauses 5, 16, 32, 33, 41, 46 and 52 insert new standard provisions in a number of the Acts to make it a duty of the Board of each of the respective funds to comply with the newly introduced Commonwealth superannuation contributions tax legislation.

Oauses 15, 29, 38, 48 and 56 are consequential amendments to a number of the Acts relating to the Board's duty to comply with the Commonwealth superannuation contributions tax legislation providing the Board with the power to request a member's tax file number.

Clauses 13, 19, 43, 47 and 55 insert new standard provisions in a number of the Acts to give their respective Boards, with the approval of the member, the discretion to offer 100% commutation of any low value pensions administered by those Boards if the pension is under $520 per year.

Oauses 8, 20, 49 and 53 insert new standard provisions in a number of the Acts requiring employer contributions to cease when a member has ceased making contributions at age 65.


151


Trade Measurement (Administration)(Amendment) Bill

14.1

The Bill was introduced into the Legislative Council on 6 October 1998 by the Honourable Louise Asher MLC. The Second Reading Speech was delivered on 7 October 1998. The Bill received the Royal Assent on 13 October 1998.

14.2

The purpose of the Bill is to amend the Trade Measurement (Administration) Act 1995 (the Act), by correcting an anomaly identified in the operation of the Act. The Committee notes the comments in the Second Reading Speech:-

14.3

An anomaly in the Trade Measurement (Administration) Act 1995 has recently been discovered. Section 18(1) of the Act potentially restricts the power to serve infn"ngement notices to only those offences specified under the Trade Measurement Act 1995. This could potentially mean that the power to issue infringement notices for contravening the Trade Measurement Regulntions is not provided for. The government is acting now to ensure that the anomaly does not undermine the enforcement capability of Trade Measurement Victoria, thereby protecting the integrity of Victoria's trade measurement system.

The Bill will ensure that the government's policy intentions when originally agreeing to the legislntion are beyond legal doubt and that fines enforced under the regulntions can be collected. To remove any uncertainty, the Bill proposes to validate the handful of infringement notices for breaching the regulntions that have already been issued. This course of action can be justified on the basis that those persons who have paid on notices have done so on the basis of their guilt and to avoid the matter otherwise proceeding to a court where a conviction could be imposed.

The Committee notes that no commencement clause is provided for in the Bill. The effect of section 11(1)(b) of the Interpretation of Legislation Act 1984 is that where no day is fixed for the amendment to come into operation, the provision takes effect 28 days after receiving the Royal Assent.

Clause 2 amends section 18 of the Act and corrects an anomaly by inserting after Trade Measurement Act 1995 "or against any regulation made under the Trade Measurement Act 1995 or the Trade Measurement (Administration) Act 1995".

Clause 3 as a consequence of the anomaly identified in clause 2 above the clause substitutes a new section 28 in the Act validating regulations and actions made or taken under the Trade Measurement Act 1995 and the Trade Measurement (Administration)(Amendment) Act 1995.

152


The Committee notes the retrospective operation of clause 3 in deeming as valid regulations made and actions taken pursuant to the two Acts cited above. The Committee also takes note of the Minister's explanation in the Second Reading Speech. In the circumstances the Committee believes the provisions in the Bill are appropriate and justified.

The Committee further notes that an important and integral part of the process of parliamentary scrutiny is the statutory functions exercised by the Scrutiny of Acts and Regulations Committee. In circumstances of urgency these functions are sometimes bypassed by the rapid passage of a Bill through Parliament without the Committee having the opportunity to comment on a Bill.

The Committee recommends that in such circumstances where urgent Executive action is required, the advice and explanation for that course of action be made known to the Parliament in the Second Reading Speech and the Explanatory Memorandum.


Transport (Amendment) Bill

15.1

The Eill was introduced into the Legislative Assembly on 7 October 1998 by the Honourable Robin Cooper MP with the Honourable Phil Gude MP. The Second Reading Speech was delivered on 8 October 1998.

15.2

The Eill amends the Transport Act 1983 (the Act). The main purposes of the amendments are to:-

• Facilitate and improve the adntinistration of the taxi and hire car industry;

• Permit the Roads Corporation to lease or licence areas of land over which there is a declared road; and

• Make adjustments to reservations over certain lands for the future re-location of a tramway.

15.3

Clause 2 provides that sections 1, 2, 12, 13 and 14 commence operation on receiving the Royal Assent. The remaining provisions commence on proclamation but not later than by 1 March 1999.

Clause 4 amends section 143A(1) of the Act by providing for the issue of taxi-cab licences to be made by Order of the Minister in place of the Governor in Council

153

Scrutiny of Acts and &gultltions Committee

Clause 8 amends section 150(6) of the Act by adding to the grounds upon which a licence assignment may be terminated by inserting in the section "'or is satisfied that the assignee is not a fit and proper person to operate a vehicle under a licence".

Clause 9 inserts a new sub-section (5) into section 156(4) of the Act to allow a condition of a driver's certificate to be varied or added to for reasons stated in writing, sent to the certificate holder by the licensing authority, during the currency of the certificate rather than on ifs renewal as at present. Clause 10 inserts a new section 158A prohibiting touting for customers for commercial vehicles other than in a manner allowed by the licence or the regulations. The new section replaces existing regulations and provides for a substantial increase in penalty of up to 50 penalty units. Clause 160(2) adds a new section 160(2) to the Act providing for substantially increased fines for unlicensed operation of commercial vehicles.

Clause 12 inserts new sections 253B, 253C and 2350 into the Act to provide for minor adjustments to reservations with Yarra Park to enable a minor boundary adjustment to be made in relation to the future relocation of the Swan Street tramway.

Clause 13 adds new provisions to Schedule 5 of the Act to permit the Roads Corporation to lease or licence areas of land which are part of a road declared under the Transport Act 1983.


Committee Room Monday 19 October 1998

154



on the

Chattel Securities (Amendment) Bill Consumer Credit (Finance Brokers) Bill Crimes, Confiscation and Evidence Acts (Amendment) Bill Electricity Industry Acts (Amendment) Bill Gaming Acts (Further Amendment) Bill Gas Industry Acts (Amendment) Bill Health Services (Further Amendment) Bill Land Titles Validation (Amendment) Bill Legal Aid (Amendment) Bill Licensing and Tribunal (Amendment) Bill Local Government (Nillumbik Shire Council) Bill Melbourne City Link (Amendment) Bill Mutual Recognition (Victoria) Bill Petroleum Bill Racing and Betting Acts (Amendment) Bill Rail Corporations (Further Amendment) Bill State Taxation (Further Amendment) Bill

Tuesday, 10 November 1998

155



Chattel Securities (Amendment) Bill Crimes, Confiscation and Evidence Acts (Amendment) Bill Electridty Industry Acts (Amendment) Bill Gaming Acts (Further Amendment) Bill Gas Industry Acts (Amendment) Bill Land Titles Validation (Amendment) Bill Legal Aid (Amendment) Bill Ucensing and Tribunal (Amendment) Bill Local Government (Nillumbik Shire Council) Bill Melbourne City Link (Amendment) Bill Radng and Betting Acts (Amendment) Bill Rail Corporations (Further Amendment) Bill State Taxation (Further Amendment) Bill


156

Chattel Securities (Amendment) Bill Consumer Credit (Finance Brokers) Bill Crimes, Confiscation and Evidence Acts (Amendment) Bill Electridty Industry Acts (Amendment) Bill Gaming Acts (Further Amendment) Bill Gas Industry Acts (Amendment) Bill Health Services (Further Amendment) Bill Land Titles Validation (Amendment) Bill Legal Aid (Amendment) Bill Ucensing and Tribunal (Amendment) Bill Local Government (Nillumbik Shire Council) Bill Melbourne Oty link (Amendment) Bill Mutual Recognition (Victoria) Bill Petroleum Bill Radng and Betting Acts (Amendment) Bill Rail Corporations (Further Amendment) Bill State Taxation (Further Amendment) Bill


Chattel Securities (Amendment) Bill

1.1

The Bill was introduced into the Legislative Assembly on 21 October 1998 by the Honourable Jan Wade MP with the Honourable Alan Stockdale MP. The Second Reading Speech was delivered on 22 October 1998.

1.2

The Bill amends the Chattel Securities Act 1987 (the Act) as a consequence of the establishment of the National Vehicle Security Enquiry Register and the Victorian Civil and Administrative Tribunal. The Committee notes the comments in the Second Reading Speech:-

1.3

The Chattel Securities Act 1987 provides a system for the registration of security interests in goods - principally motor vehicles - so that prospective purchasers can check whether a vehicle is subject to a financial encumbrance.

All vehicle security data bases in mainland Australia have now been linked and prospective purchases can ascertain whether a vehicle registered in any mainland Australian State is subject to a financial encumbrance.

The Bill makes provision for the inclusion of unregistered but registrable motor vehicles and trailers, and agricultural machinery and implements as goods which are 'registrable goods' under the Chattel Securities Act. This means that a person who holds a security interest in these goods may register their interest on the vehicles security register.

Victoria will have fulfilled its commitment to the establishment of a National Vehicle Security Enquiry Register, which will substantinlly reduce the risk of financial loss for financiers and purchasers of second-hand vehicles.

Clause 2 Parts 1 and 2 commence on Royal Assent. The remammg provisions commence on proclamation but not later than by 1 July 1999. Clause 4 makes amendments consequent upon the establishment of the Victorian Ovil and Administrative Tribunal. Clause 5 inserts into section 3 of the Act new or amended definitions including new definitions for 'agricultural implement', 'agricultural machine' and 'repairer's lien'.

Clause 7 inserts a new section 7(1A) which provides that if as a result of an administrative or systems error, a registered security interest is not disclosed on a certificate and the purchaser purchases the goods for value in good faith and without notice, the security interest is extinguished. (the security holder may apply for compensation under section 25(1B)). Secondly, it provides for the extinguishment on

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purchase of goods of a security interest that was registered after a search certificate was issued to the purchaser (provided that the certificate was issued on the day of the purchase or the preceding day). The provision provides the purchaser with a period of time to complete the purchase with certainty that the goods are not encumbered.

Clause 9 inserts a new section 10(4) which provides that a repairer's lien on goods, whether or not registered under Part 3, ranks in priority to any registered security interest in respect to those goods.

Clause 10 substitutes new definitions for motor vehicles and trailers in section 13(1) of the Act to permit motor vehicles and trailers which are unregistered but eligible for registration to be included as 'registered goods' and adds a new category of registrable goods being agricultural machines and agricultural implements.

Clause 11 inserts a new section 25(1B) permitting a person who suffers loss or damage because a security interest that was registered before a search certificate was issued is not disclosed on the certificate and therefore is extinguished under section 7(1A) to apply to the Tribunal for compensation.


Crimes, Confiscation and Evidence Acts {Amendment) Bill

2.1

The Bill was introduced into the Legislative Assembly on 28 October 1998 by the Honourable Jan Wade MP with the Honourable Phil Gude MP. The Second Reading Speech was delivered on 29 October 1998.

2.2

Part 2 of the Bill amends the Crimes Act 1958 concerning the provision of forensic reports; Part 3 of the Bill amends the Confiscation Act 1997 and Part 4 amends the Evidence Act 1958.

2.3

Clause 2 provides that Parts 1 and 2 commence operation on Royal Assent. Part 3 is deemed to have come into operation on 1 July 1998. Part 4 is deemed to have come into operation on 20 October 1998.

Part 2 Amendments to the Crimes Act 1958 (the Act)

Clause 3 amends sections 464ZD and 464ZE of the Crimes Act 1958 in respect to the provision of forensic reports. The effect of the amendment is that the prosecution must provide, by registered post, the person or his or her legal practitioner with a copy of every forensic report as soon as practicable. The existing provision makes it mandatory to provide such a forensic report within 7 days after receipt by the prosecution of the report. However, clause 3 also amends section 464ZE(1) to provide that a failure to provide a copy of every forensic report to the person within 7 days of its receipt by the

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prosecution will result in evidence obtained by the forensic procedure being inadmissible subject to the exceptions provided for in 464ZE(2) and (2A). The exceptions permit a court to exercise discretion by determining whether there are circumstances that justify the reception of the evidence.


In 1997, the Government broadened the circumstances in which DNA samples could be taken from peaple by court order or, with certain safeguards, by police. Those provisions placed very restrictive time limits on police to provide forensic reports to peaple from whom forensic samples have been taken. The time limits have proved to be too onerous and are inappropriate in some circumstances. The Amendment requires forensic reports to be provided nas soon as practicable» after the sample is taken from the person.

Section 464ZE of the Crimes Act 1958 has also been amended to ensure that if a forensic report is not provided to the person from whom the sample was taken within an appropriate time frame, the court will determine whether the evidence should be admitted into evidence. This strikes an appropriate balance between the rights of those from whom forensic samples have been obtained and the rights of the community to obtain and use valuable evidence against those accused or convicted of serious crimes.

Clause 4 inserts a new section 590 in the Act (a transitional provision) providing that the amendments made to the Act by the Bill apply only to forensic procedures conducted after the commencement of section 3 (above).

Part 3 Amendments to the Confiscation Act 1997 (the Act)

Clause 5 amends section 157 of the Act and inserts a transitional provision relating to the continued application of the now repealed Crimes (Confiscation of Profits) Acts 1986 in respect to serious offences (within the meaning of that Act) for which a criminal proceedings was begun prior to the commencement of Part 2 of the Confiscation Act 1997 (being 1 July 1998), regardless of whether the defendant was convicted before or after that commencement.


The transitional provisions of the Confiscation Act 1997 have been amended to clarify the manner in which they aperate. The amending provisions expressly provide that all applications, orders and powers under the Crimes (Confiscation of Profits) Act 1986 continue to apply and may be exercised in relation to criminal proceedings commenced before 1 July 1998, regardless of whether the defendant was convicted before or after 1 July 1998. The amendments expressly provide that any orders made pursuant to the Crime (Confiscation of Profits) Act 1986 have been validly made. The Confiscation Act 1997 will continue to apply in relation to criminal proceedings commenced after 1 July 1998.

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Tire Committee notes the amendments to Part 3 are tkemed to have come into operation on 1 July 1998. The Committee also notes the comments of the Minister in the Second Reading Speech and that the amendments do not affect the rights of the parties that were the subject of the proceedings known as Martin v Cooper and Martin heard in the Magistrates' Court at Melbourne and determined on 7 October 1998. Tire Committee believes that in the circumstances the retrospective operation of the amendments are justified.

Part 4 Amendments to the Evidence Act 1958 (the Act)

===-=. inserts new sections 19A to 19E into Division 5 of Part 1 of the Act (Boards Appointed and Commissions Issued by the Governor in Council). The provisions are deemed to have come into operation on 20 October 1998.


On 20 October 1998, the Longford Commission was established to enquire into the explosion at the ESSO Longford Gas Processing Plant and into the consequential major disruption to Victoria's natural gas supply. The Commission is expected to report its findings in the first lullf of 1999. To ensure tluzt the Commission is able to properly fulfil its junctions, it is vital tlult the Commission be able to obtain access to all necessary documents and information.

The bill supplements the powers currently conferred on commissions of enquiry by inserting new sections 19A to 19E into the Evidence Act 1958. Their effect will be to ensure tlult valuable time and resources are not wasted on associated litigation or technical legal disputes about whether various vital evidence should be produced to a commission. At the same time, the amendments will provide appropriate safeguards for the persons who are providing tlult evidence. Section 190(2) confers a discretion on the commissioners to restrict access to the hearing in circumstances where legal professional privilege is claimed and Juzs been included to complement the power to close hearings under section 19B.

The amendments will assist the Longford Commission in fulfilling its crucial role in restoring confidence in the safety and reliability of Victoria's natural gas supply, ensuring tlult Victoria continues to be a safe and fair State in which to live and do business.

New section 19A(1) makes in plain that in relation to commissions a reference to a "document" includes a reference to a thing. 19A(2)(a) provides that notwithstanding any contrary provision in any Act or law, Division 5 of Part 1 applies to coroners, the WorkCover Authority, any other public statutory authority or a member of the board of management of such an authority, the Director of Public Prosecutions, a member of the police force or the holder of an office established by or under an Act. Further new section 19A(2)(b) provides that the Division applies to any information, document or thing obtained by or in the possession of such a person (in (a) above) and, (c) the disclosure or production to the Commission of any such information, document or thing.

New section 19B allows the presiding commissioner to exclude the public from a hearing, where this will facilitate the conduct of the inquiry or is in the public interest. The Commissioner may also prohibit publication of reports of proceedings or

160


information gained from the hearing. Breach of such an order attracts a penalty of $3,000 or 3 months imprisonment.

New section 19C provides that persons providing evidence to a commissioner may not refuse to do so on grounds of the privilege against self-incrimination. However, such evidence will not be admissible against the person in any criminal or civil proceedings other than for perjury or giving false information.

New section 19D provides that persons are not excused from providing evidence to a commissioner on the grounds of legal professional privilege. However, if a person does refuse to provide the evidence on that basis, the commissioner may require the provision of the evidence at a closed hearing.

New section 19E confers powers on the commissioners of a commission to enter and inspect any place and to take possession of documents and things located there and to copy documents. The commissioner may also authorise (subject to time limits) a member of the police force to carry out these functions. A commissioner may release any document or thing to persons and may require such persons to give an undertaking to comply with any reasonable conditions of release. Penalty for breach $1000.

The Committee makes no further comnumt.

Electricity Industry Acts (Amendment) Bill

3.1

The Bill was introduced into the Legislative Assembly on 21 October 1998 by the Honourable Alan Stockdale MP with the Honourable Jan Wade MP. The Second Reading Speech was delivered on 22 October 1998.

3.2

The principal purposes of the Bill are to amend the cross-ownership rules contained in the Electricity Industry Ad 1993, to facilitate the development of efficient investment in generation capacity in Victoria and to amend the Electricity Safety Ad 1998 to improve its operation. The Bill also repeals certain provisions in the State Electricity Commission Ad1958.

3.3

Clause 2 Parts 1, 2 and 4 come into operation on Royal Assent. The remammg provisions commence on proclamation but not later than by 31 December 1999.

Part 2 makes amendments to the Electricity Industry Ad 1993

Part 3 Amendments to the Ekctricity Safety Act 1998

Clause 12 removes the words in italics in section 46(3) as follows:- "The owner of an electric line installed in contravention of this section must not use tlult electric line" and

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inserts the following words in their place, 'must ensure that the electric line is not at any time connected to a supply network'.

Oause 13 amends section 70(2)(a) to provide that refusal by the Officer of the Chief Electrical Inspector to supply a certificate of electrical safety form to an appropriate person is an allowable basis for an appeal to the Electrical Appeals Board (the Board). It also inserts a new section 70(7) providing that no appeal lies against the Board against a decision of an accepted electricity safety manager under Parts 3 and 4.

Clause 22 inserts a new Part llA establishing a regime of infringement notices for certain offences against the Act and the regulations.


Gaming Acts (Further Amendment) Bill

4.1

The Bill was introduced into the Legislative Assembly on 21 October 1998 by the Honourable Tom Reynolds with the Honourable Alan Stockdale MP. The Second Reading Speech was delivered on 22 October 1998.

4.2

The Bill amends a number of Acts relating to the gaming industry in Victoria. They are:-

• Casinn Control Act 1991i

• Casino (Management Agreement) Act 1993;

• Club Keno Act 1993;

• Gaming and Betting Act 1994i

• Gaming Machine Control Act 1991;

• Gaming No. 2 Act 1997; and

• Tattersall Consultations Act 1958.

4.3

Clause 2 Section 36 comes into operation on 1 June 1999. Sections 29, 30, 31 and 32 come into operation on 1 March 1999. The remaining provisions commence operation on Royal Assent.

Clause 9 inserts a new Schedule 6 into the Casino (Management Agreement) Act 1993 setting out the Fifth Deed of Variation to the management agreement between the State and Crown Casino for the Melbourne Casino Project. The Deed extends the

162


completion date for the Lyric Theatre and the Southern Tower of the Hotel for four years to 30 November 2003 but with the obligations to pay liquidated damages for failure to complete the project beyond that date remaining unchanged.

Clause 26 inserts a new section 136B into the Gaming Machine Control Act 1991 to provide a penalty for late payment of all electronic gaming machine taxes and levies. The amendment provides for interest at 20 percent per annum to be payable on unpaid gaming taxes and levies.

Clauses 28 to 39 make amends to the Gaming No. 2 Act 1997. The Committee notes the comments in the Second Reading Speech:-

Amendments made to the Gaming No. 2 Act continue the Government's refarms in the area of gaming carried out for the benefit of community and charitable organisations, as well as in the area of trade promotions. In particular, the following amendments strengthen the enforcement provisions of the Act to ensure that the proceeds of activities carried out for charitable and community organisations are made available to those organisations:

1. The requirement that an organisation conducting minor gaming activities pay proceeds from the activities into the one bank account, so that these proceeds are more easily audited.

2. Imposition of a penalty of 50 penalty units for failure to submit returns for bingo sessions.

3. The requirement for a person who has conducted minor gaming activities over the past 12 months to keep back account records of those activities, so that audit of the those activities may be carried out.

The Act is also amended to allow for a trade promotion lottery permit and a bingo centre operator's licence to be issued to a "legal person", with a natural person as nominee. Currently this permit and licence is held by an individual only. If that person ceases involvement with an organisation or dies, it is desirable that the permit continues, rather that the organisation being required to apply for a new permit or licence. There will, of course, be probity checking of any new nominees.


Gas Industry Acts (Amendment) Bill

5.1

The Bill was introduced into the Legislative Assembly on 21 October 1998 by the Honourable Alan Stockdale MP with the Honourable Phil Honeywood MP. The Second Reading Speech was delivered on 22 October 1998.

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Scrutiny of Acts and Regullltions Committee

5.2

The Bill amends the Gas Industry Act 1994, the Gas Pipelines Access (Victoria) Act 1998, the Gas Safety Act 1997 and certain other Acts for other purposes.

5.3

Clause 2 the commencement provisions are:-

(1) Part 1 and section 8, 17(1)(2) and (4) and 30 come into operation on the day on which this Act receives the Royal Assent.

(2) Sections 9, 10 and 17(3) are deemed to have come into operation on 10 June 1998.

(3) Section 22 is deemed to have come into operation on 25 September 1998.

(4) Section 21 is deemed to have come into operation on 22 October 1998.

(5) Section 13(2) comes into operation on a day to be proclaimed.

{6) The remaining provisions of Part 2, Part 3, sections 24{1), 26(2) and {3), 27, 28 and 29 and Part 5 come into operation on 1 December 1998.

(7) Subject to sub-section (8), the remaining provisions of Part 4 come into operation on a day to be proclaimed.

(8) If a provision referred to in sub-section {7) does not come into operation before 1 December 1999, it comes into operation on that day.

Part 2 Amendments to the Gas Industry Act 1994

Commencement by proclllmation cllluse

Clause 2{5) provides that in Part 2 of the Bill section 13(2) comes into operation on a day to be proclaimed. Clause 2(6) of the Bill states that the remaining provisions of Part 2 come into operation on 1 December 1998. Section 13{2) of the Bill inserts new subsections {8) and {9) in section 48A of the Act dealing with 'Tariffs and Cho.rges Orders'.

The Committee notes that the commencement by proclamation of section 13(2) of the Bill leaves the operation of the provision open-endeJ. The Committee notes that no justification is provideJ for such an indefinite commencement for the operation of this provision in either the Second Reading Speech or the Explllnatory Memorandum. The Committee is of the view that an open-endeJ commencement provision is undesirable. Where use of such a cllluse is to be thought desirable in the circumstances, appropriate justification for its use should be presented at the time of its introduction into the Parliament.

The Committee believes that the ability of the Executive to dellly the commencement of a provision of an Act indefinitely, may be characteriseJ as an inappropriate delegation of legislative power within the meaning of section 4D(a)(iv) of the Parliamentary Committees Act 1968.

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The Committee will write to the Minister seeking comment concerning the commencement of this provision.

Clause 2(2) provides that sections 9, 10 and 17(3) are deemed to have come into operation on 10 June 1998.

Clause 9 substitutes a new section 161 of the Gas Industry Act 1994 to provide a protection from liability for VENCorp and the directors and servants of VENCorp in certain circumstances.

The new section 161 provides:-

(1) A person to whom this section applies is not liable to any action, claim or demand on account of any damage, loss or injury sustained or alleged to be sustained because of anything done or omitted to be done in good faith-

(a) in or in-connection with or incidental to the exercise of a power to give or make a direction, prohibition or requisition under, or purportedly under, this Act;

(b) in the reasonable belief that the act or omission was in or in-connection with or incidental to the exercise of such a power.

(2) This section applies to VENCorp and the directors and servants of VENCorp.

Clause 10 substitutes a new section 16J of the Gas Industry Act 1994 to provide an immunity from suit for persons generally in certain circumstances and particularly for GASCOR, or gas retailers and servants and agents of, or persons acting on behalf of, or performing work or services, whether directly or indirectly, for GASCOR or a gas retailer in certain circumstances.

The new section 16J provides:-

(1) A person is not liable to any action, claim or demand on account of any damage, loss or injury sustained or alleged to be sustained because of anything done, or omitted to be done in good faith -

(a) in the execution of any direction under, or purportedly under, this Division; or

(b) in the reasonable belief that the act or omission was done in the execution of such a direction.

(2) A person to whom this sub-section applies is not liable to any action, claim or demand on account of any damage, loss or injury sustained or alleged to be sustained because of anything done, or omitted to be done, in good faith -

(a) in the execution of any direction or purported direction (whether or not under this Division) given by VENCorp to that person or an agent of that person (whether or not by name) on or after 11 June 1998 and before the date on which the Gas Industry Ads (Amendment) Act 1998 receives the Royal Assent; or

(a) in the reasonable belief that the act or omission was done in the execution of such a direction.

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Scrutiny of Acts and Regultltions CommiUee

(3) Sub-section (2) applies to GASCOR, gas retailers and seroants or agents o_t or persons acting on behillf o_t or performing work or services, whether directly or indirectly, for, GASCOR or a gas retailer.

Clause 17{3) substitutes a new sub-section (5) in section 62G in Part 6A - 'Gas Supply Emergency Provisions' of the Gas Industry Act 1994 to provide that "The Minister may at any time by direction under this section amend or revoke a direction, prohibition or requisition". The current 62G(5) provides 'The Minister may at any time revoke a direction, prohibition or requisition. "

The Committee notes that by the operation of cltluse 2(2) of the Bill, clauses 9, 10 and 17(3) apply retrospectively to 10 June 1998. The Committee notes that no explanation is provided in either the Second Reading Speech or the Expltlnatory Memorandum as to the significance of that date. The Committee will write to the Minister seeking cltlrification in relation to the specific retrospective date.

The Committee is concerned that persons may be adversely effected by the retrospective application of these provisions and will write to the Minister seeking further comment as to the likely impact on persons and urganisations.

Clause 13(1) inserts a new sub-section (7) after section 48A(6) of the Act and provides "The first Order made under this section has effect from 11 December 1997." Section 48A is contained in Part 4A, Division 1. The Part is headed 'Regulation of Gas Industry' and the Division headed 'Regulation of Tariffs and Chilrges '.

The Committee notes that the amendment applies retrospectively and notes the content of the Expltlnatory Memorandum:-

Clause 13 amends section 48A of the Principal Act to put beyond doubt the commencement of the first Order made under section 48A and to enact provisions reltlting to the making of further Orders, and the amendment and revocation of an Order in force, under section 4BA after the commencement of sub-section 13(2) of this Act.

The Committee notes that section 48A was inserted by s.17 of the Gas Industry (Further Amendment) Act 1997 and subsequently amended by ss.14 to 21 of the Gas Industry (Amendment) Act 1998 and commenced operation on 11 December 1997. The Committee notes the amendment is declaratory in nature and cltlrifies the validity of an Order made on the day the amended Act commenced operation. It's retrospective operation is therefore acceptable.


Clause 21 provides that at the end of section 101B of the Act insert new sub-section (2).

166

(2) It is the intention of sections 161, 16J and 62L to alter or vary section 85 of the Constitution Act 1975.


Whilst sections 161 and 16J are new provisions (as set out above), whereas section 62L is an existing provision inserted into the Act by s.39 of No. 31/1995.

Section 62L (Immunity from suit) is in Part 6A - 'Gas Supply Emergency Provisions' and provides:-

A person acting in the execution of this Part or any proclamation, direction or prohibition or requisition under this Part is not liable to any action, claim or demand on account of any damage, loss or injury sustained or alleged to be sustained because of the operation of this Part or of anything done or purporting to be done under this Part or any proclamation, direction, prohibition or requisition under this Part.


The Bill involves two broad classes of amendment to the GIA: first, a series of amendments to the regulatory regime for the elements of the Victorian gas industry undergoing reform designed to create a competitive market in gas for the benefit of all Victorians and, second, provisions designed to ensure the effective operation of powers conferred to protect security of the gas system.

The Bill includes the following:

(6) Amendments to ensure that provisions required to protect gas system security are effective. It is vital that the corporation charged with responsibility for system security has authority and confidence to act free from the risk of personal or corporate liability where it acts in good faith to protect system security. That immunity should also extend to third parties (and their servants and agents) acting upon directions given to protect system security. To be effective the immunity needs to apply to purported directions and where the person concerned has a reasonable belief that the act or omission concerned the execution of such a direction. The immunities should also apply where the Governor-in-Council declares that the available supply of gas is or is likely to be at risk. These immunities are founded directly in the public interest and in the need to ensure that the corporation and third parties involved have confidence to protect the public interest.

Amendments to make these immunities effective were foreshadowed in a news release immediately following the "icing" incident at the Longford processing plant in June this year and were restated following the explosion there on 25 September 1998.

These provisions do not need exempt VENCorp and industry participants from liability generally. They are strictly limited to actions intended to protect system security.

The provisions clarify the operation of the immunities:

(a) to clarify that effective directions can be given to designated market participants before the commencement of the proposed MSO Rules;

(b) to provide for correction of defects, omissions or mistakes in directions;

167


(c) to provide proper construction of a delegation made on 25 September 1998;

(d) to facilitate VENCorp's securing information it needs to carry out its system security functions.

The Bill inserts into the Principal Act a provision stating that the intention of sections 16I, 16] and 62L of the Principal Act is to alter or vary section 85 of the Constitution Act 1975. It is the intention of that provision to alter or vary section 85 of the Constitution Act 1975. The Principal Act provisions mentioned are those conferring immunity from suit in respect of directions given by VENCorp or in an emergency. I wish to make a statement under section 85 of the Constitution Act of the reasons why section 85 of the Constitution Act is to be altered or varied in this respect.

In so far as it might be argued that the provisions affect the jurisdiction of the Supreme Court, the new provision is being included in the Bill. This is a matter of abundant caution. The immunity from suit provisions do not purport to oust the jurisdiction of the Supreme Court in relation to the question of liability arising from the exercise of the directions powers (or for foUowing directions). Rather, the substantive law to be applied by the Supreme Court is stated clearly in the immunity provisions. It is pointed out that the immunity is not absolute and depends on certain pre-conditions, such as good faith, being established. The establishment of the pre-conditions is a matter that will remain within the Court's jurisdiction.

The Committee notes that pursuant to clause 2(4) the operation of clause 21 (limiting the jurisdiction of the Supreme Court), is deemed to be retrospective to 22 October 1998 (the date of the delivery of the Second Reading Speech). The Committee notes that the retrospective operation of the provision applies to proceedings commenced after 22 October 1998.

Given the qualifications expressed in the Second Reading Speech regarding the application of the section 85 provision the Committee makes no further comment.

Clause 22 is declaratory and provides 'A delegation by the Minister under section 621 of the Principal Act on 25 September 1998 has effect as if it referred to the gas supply emergency throughout Victoria arising from an incident at Longford which occurred on that date.' Section 621 is located in Part 6A of the Act - 'Gas Supply Emergency provisions' and provides:-

621. Delegation of powers and functions by Minister

The Minister may by instrument delegate to any person all or any of the Minister's powers and functions under this Part (except this power of delegation) in relation to any matter or class of matters or part of Victoria specified in the instrument of delegation.

The Committee notes that pursuant to clause 2(3), section 22 is deemed to have come into operation on 25 September 1998 (the date of the Longford incident).

The Committee notes the declaratory nature of the retrospective provision in respect to the gas supply emergency arising from the Longford incident and since the provision is not designed to alter substantive rights the Committee accepts that in the circumstances it is justified.

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Part 3 Amends the Gas Pipelines Access (Victoria) 1998

Part 4 Amends the Gas Safety Act 1997 (the Act)

Clause 27 inserts a new offence, in section 79A of the Act which provides that a person must not wilfully or negligently break, injure, open or tamper with any gas installation or pipeline. Penalty $10,000.

Clauses 31, 32 and 33 amend the Building Act 1993, the Office of the Regulator--General Act 1994 and the State Electricity Commission Act 1958 respectively.


Land Titles Validation (Amendment) Bill

6.1

The Bill was introduced into the Legislative Assembly on 27 October 1998 by the Honourable Jeff Kennett MP with the Honourable Phil Gude MP. The Second Reading Speech was delivered on 28 October 1998.

6.2

The Bill amends the Land Titles Validation Act 1994 to validate certain 'intermediate period acts' .. and to confirm the effect on native title of certain acts; and to amend the Pipelines Act 1967 for the purpose of the application of the Native Title Act 1993 of the Commonwealth.

Note 1,. 'Intennediate period acts' refer to acts occurring between the commencement of the operation of the Native Title Act 1993 (Cth) on 1 January 1994 and the High Court's decision in Wik, handed down on 23 December 1996. (Wik Peoples v. Queensland (1996) 141 ALR 129)

Note 2 By way of background the Committee provides a brief history of relevant issues related to native title. (Appendix 2).


Mr Speaker, as all the Members of this house will be aware, on Wednesday, 8 July 1998, the Senate passed the Native Title Amendment Act 1998, following the longest Senate debate in the history of the Commonwealth.

The Victorian Government supported the Prime Minister in his attempts to achieve a just and fair compromise in dealing with the many very difficult issues surrounding native title in this country.

Both the Native Title Act as passed in 1993 and the amendments passed by the Commonwealth Parliament in July of this year represent a national scheme for the recognition and management of native title. They reflect a national approach to native

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title issues which seeks to balance both indigenous and non-indigenous concerns and interests.

Both the 1993 legislation and the recent amendments envisage that each State and Territory will enact legislation to adopt and complement that national scheme.

Accordingly, Mr Speaker, the Bill now before the House adopts the validation and confirmation provisions of the Native Title Act as amended; that is the validation scheme for certain Acts done in the period from 1 January 1994 until 23 December 1996 and the confirmation regime for "exclusive possessions Acts" to be incorporated into the Land Titles Validation Act 1994. The Bill also incorporates amendments to the Pipelines Act 1967 to ensure it continues to conform with the now changed provisions of the Commonwealth Native Titles Act 1993.

It is Victoria's understanding that all jurisdictions, including NSW and Queensland, intend to legislate to adopt the validation and confirmation provisions in full and have either passed such complementary legislation or are in the process of doing so.

Victoria, along with all other jurisdictions has taken the view that the responsible course is to legislate in accordance with the Commonwealth amendments. This Bill amends the Land Titles Validation Act 1994 to validate certain Acts done in the period from 1 January 1994 until23 December 1996 (to be known as "intermediate period Acts"). The approach taken is very similar to that used to validate "past Ads" under the Keating Government's Native Title Act in 1994.

Prior to the Wik decision being handed down on 23 December 1996, all governments were generally of the view that under the common law the valid grant of a lease (including the grant of a pastoral leave in pastoral lease States) extinguished native title.

In a 4/3 decision, the High Court in Wik upset that orthodox legal view and held that native title is capable of co-existing on pastoral leases. This directly raised the issue of whether a range of activities undertaken on Crown land were valid.

Under the Bill before the House, and in accordance with the Native Titles Act as amended, the validation provisions for "intermediate period Acts" do not extend to Acts or grants made on or in relation to land which is vacant Crown land. Importantly, for validation to apply in relation to an "intermediate period Act", there must have been the grant of a freehold estate or a lease (other than a mining lease) or a "public work" over any of the land or waters concerned.

In looking at how the validation regime will operate in Victoria, it should be remembered that it is designed to operate in States and Territories where there are significant areas of Crown land held under lease. Victoria is not such a State. In Victoria, the validation provisions could only have any effect in relation to the limited areas subject to lease, land which has been freeholded in the past or where there are public works on the land. Victoria, unlike for example Queensland, does not issue large numbers of leases over vast areas.

Mr Speaker, the Government does not believe that the validation provisions will have any significant operation in Victoria. However, in relation to any activities that are validated, the State Government will pay compensation if it is demonstrated that native title interests have been extinguished or affected.


It should also be noted that the Commonwealth amendments provide for validation to occur pursuant to indigenous land use agreements. The Bill also provides for this outcome.

The confirmation prov1s1ons will operate to confirm certain current and historic Victorian land tenures as tenures which gave exclusive possession and therefore extinguished native title. These tenures include freehold, commercial leases, exclusive agricultural leases, residential leases, community purpose leases, any other lease (other than a mining lease) which confers a right of exclusive possession, and public works. In addition to these categories there is a list set out in the Commonwealth amendments of tenures called in the Victorian amendments "scheduled interests".

The Victorian Government is of the view that the tenures confirmed, including those listed as "scheduled interests", accurately reflect the common law based upon both the MABO and WIK High Court decisions and as now supported by the recent High Court decision in the FE]O case. In our view, these High Court decisions have already provided sufficient legal guidance as to the position in relation to native title claims. The types of leases set out in the schedule are quite different from those found to potentially co-exist with native title under the WIK decision.

In developing the Victorian component of the Commonwealth schedule to ensure that it did accurately reflect the common law, a process of consultation occurred between State and Commonwealth officials. In evaluating these tenures, the Commonwealth had to be convinced that only those leases which clearly demonstrated that a right of exclusive possession was to be given to a leasee were included in the schedule. Only after this was done, and agreement reached, was any particular leasing provision placed in the schedule.

The Government is aware that a number of indigenous Victorians have some concerns about the passage of confirmation and validation legislation. They are concerned that surviving native title may be extinguished by the passage of this bill.

For the reasons 1 have already set out, the government does not believe that it preempting the common law by the introduction of this legislation, or that it is creating an unknown compensation liability for the State.

To put the matter very simply, the public policy lying behind the schedule is to allow the state, native title applicants and other parties to identify those areas of Crown land where native title has been extinguished and avoid costly and unproductive litigation. It allows the focus to be on the future, to areas where some native title may continue and focus on the achievement of real and practical outcomes for the future.

It is not in the interests of any member of the Victorian community - indigenous or nonindigenous - to have every tenure ever issued individually tested by the courts to determine whether it resulted in a grant of exclusive possession or not.

Such a course would not result in any practical and lasting outcomes and would only divert scarce resources to unproductive ends.

The Government has a responsibility to provide clear law in relation to the people of Victoria to the best of its ability in the context of the national scheme for native title passed by the Commonwealth Parliament. There is no value for either indigenous

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172

Victorians or the wider community to allow pointless and divisive litigation to proceed endlessly.

Mr Speaker, for the State to simply await further court decisions before legislating, would not be a responsible approach. Here I can only point to the words of Justice Kirby in the recent FE]O decision:

nzn every society, rights in land which afford an enforceable entitlement to exclusive possession are basic to social peace and order as well as to economic investment and property. Any significant disturbance of such established rights is therefore, ordinarily, a matter for the legislature not the courts".

For the State to refuse to legislate for confirmation will not assist the Victorian community. Rather it will create a perception of legal uncertainty as to these exclusive possession tenures when the State is unambiguously of the view that native title has been extinguished. It would be simply wrong to suggest to indigenous Victorians that the State is of the view that past exclusive possession tenure did not extinguish native title.

It needs to be understood that in one instance where the confirmation regime in the Native Title Act amendments specifically overrides the common law it does so in favour of native title claimants. This is section 47B which provides that the extinguishing effect of any prior tenures over Crown land that is currently completely vacant, is to be ignored so that native title can continue to be claimed where it would not otherwise be able to be claimed.

The Victorian Government is committed to the economic development and security of Victoria for all Victorians.

The debate about the Prime Minister's ten point plan has been had. The legislation to implement that plan has been passed by the Commonwealth Parliament.

The Victorian Government's aim is similar to that of the Federal Government, that is to confirm the existing common law in relation to native title and to provide for clearer processes under the Native Title Act 1993 in relation to future acts and the resolution of native title issues by agreement where possible.

The Commonwealth amendments attempt to strike a balance between the need to achieve certainty for non-indigenous land holders whilst ensuring that native title holders are consulted appropriately in relation to future acts, and that where possible agreements can be reached via indigenous land use agreements under the Native Title Act amendments.

The Victorian Government has not sought the unilateral extinction of native title within Victoria. The Victorian Government accepts this need for laws to recognise and protect native title and accepts the High Court's decision in the MABO case. Consequently, the Government also accepts the right of a person to make an application for determination of native title.

In relation to native title claims themselves, the Government's position is that it can make no admission of validity in relation to a claim unless or until native title, and the form and nature of the rights claimed, is proven to the standard required by the High Court in the MABO decision or until the Government is satisfied that it could be so

6.3


proved. This position reflects the government's role as the custodian of crown land on behalf of the entire Victorian community.

However, this approach does not and had not ruled out the resolution of issues by sensible agreements which advance the interests of both indigenous and non-indigenous Victorians. Here, I would point to the recent agreement between native title claimants, the State and the project developers in relation to the Horse Hair Plain's Airport development.

The Government of Victoria acknowledges that Aboriginal people of Victoria were the original inhabitants of the land now known as Victoria and as such feel a deep and particular relationship with the land and assert a right to speak for the land.

The Government of Victoria also acknowledges that the Aboriginal peoples of Victoria are entitled to respect for their traditional customs and culture.

Within the framework of the Native Title Act, Victorian legislation concerning native title future act processes generally is to be developed for passage in 1999, and the government wishes to involve indigenous Victorians in developing this legislation to put in place effective working relationships for the future.

C1ause 2 Parts 1 and 2 commence on Royal Assent. The remaining provisions commence on proclamation but not later than by 1 August 1999.

Part 2 Amendments to the Land Titles Validation Act 1994 (the Act)

Clause 5 inserts new Parts 2A, 2B and 2C in the Act.

New Part 2A Validation of intermediate period acts

New section 13A validates certain intermediate period acts. The expression "intermediate period act" is defined in section 232A of the Commonwealth Act as an act that took place between 1 January 1994 and 23 December 1996 and that meets the various conditions set out in that section. Under the Commonwealth legislation the State must within 6 months of the commencement of it's legislation notify certain details relating to intermediate period acts to the public and to native title bodies and c1aimants in relation to the affected land or waters.

New section 13B provides that certain Category A intermediate period acts not involving public works extinguish native title. Category A intermediate acts are defined in section 232B of the Commonwealth Act and include the grant or vesting of freehold; the grant or vesting of a Scheduled interest; the grant or vesting of certain leaseholds that confer a right of exclusive possession; and the construction or establishment of a public work.

New section 13C provides that certain Category A intermediate period acts extinguish native title.

New section 13D provides that certain Category B intermediate period acts (defined by section 232C of the Commonwealth Act) extinguish native title. Category B acts are the

173


grant of a lease that is not a Category A intermediate period act not including mining leases or certain leases for the benefit of Aboriginal peoples. 13D does not apply if 13H or 13L apply to it.

New section 13E applies to Category C and D intermediate period acts (defined by section 232D and 232E of the Commonwealth Act) as the grant of a mining lease and an intermediate period act not being in Category A, B or C. New section 13E does not apply to an act if new section 13L applies to it.

New section 13F preserves certain beneficial reservations and conditions notwithstanding the provisions of 13B, 13C, 13D or 13E.

New section 13G provides that under section 22G of the Commonwealth Act, native title holders are entitled to compensation because of the validation by this Act of an intermediate period act attributable to the State. Compensation is payable by the State and to be determined in accordance with the principles contained in Division 5 of Part 2 of the Commonwealth Act.

New Part 2B Confirmation of past extinguishment of native title by certain valid or validated acts

New section 13H confirms the extinguishment of native title by previous exclusive possession acts of the State, other than public works. The provisions apply to estates and interests validly granted or vested on or before 23 December 1996 and include:- a Scheduled interest; a freehold estate and certain leaseholds, other than mining leases, that confer a right of exclusive possession; and in certain circumstances mining leases so far as they apply to certain developed land.

New section 131 confirms the extinguishment of native title by previous exclusive possession acts of the State consisting of public works that were validly undertaken and commenced to be constructed or established on or before 23 December 1996.

New section 13J preserves certain beneficial reservations and conditions, notwithstanding the provisions of 13H and 131.

New section 13K confirms the validity of the use by the Crown of waters and of certain land.

New section 13L confirms the partial extinguishment of native title by previous nonexclusive possession acts of the State (defined in section 23F of the Commonwealth Act) such as non-exclusive agricultural leases and non-exclusive pastoral leases validly granted on or before 23 December 1996; legally enforceable rights to the grant of such leases created on or before that date and exercised after that date; and arrangements for the grant of such leases completed after that date but made on or before that date in good faith and evidenced in writing.

New section 13M preserves certain beneficial reservations and conditions notwithstanding the provisions of 13L.

New section 13N requires that certain written prescribed notices to be given in respect to non-exclusive possession acts to which section 23F(3)(c)(ii) of the Commonwealth Act applies to representatives of AboriginaVforres Strait Islander bodies; registered native title bodies corporate; and registered native title claimants in relation to the land or

174


waters that will be affected by the act, or acts of that class, in relation to the land or waters concerned. The person or body must be given an opportunity to comment on the act or class of acts.

New section 130 provides for compensation under section 23} of the Commonwealth Act for any extinguishment under Part 2B of any native title rights and interests by an act under this Act. The compensation is payable by the State and is to be determined in accordance with the principles contained in Division 5 of Part 2 of the Commonwealth Act.

Part 2C Validation of future acts by agreement

New section 13P sets out the circumstances in which new section 13Q will apply.

New section 13Q provides that certain future acts are valid if the requirements of new section 13P are met.

Part 3 Amendments to the Pipelines Act 1967 (the Act)


The Bill before the house also amends the Pipelines Ad 1967 to ensure that the Pipelines Act conforms with the amended Commonwealth Native Title Act. In December 1996, the Pipelines Act 1967 was amended to allaw for the 'right to negotiate' process to apply to pipelines which traversed non-private land. A pipeline licence could not be issued on non-private land without completing the right to negotiate process. This was done to provide pipeline proponents with certainty that the construction of a pipeline could be a valid act for the purposes of the Native Title Act.

The 1998 amendments to the Commonwealth Native Title Act expressly provide that the 'right to negotiate' process does not apply to oil and gas pipelines. As a result, the Pipelines Act again needs amending to comply with the Native Title Act.

In order to achieve this, the amendments require pipeline proponents to follow a relevant procedure under the Native Title Ad, before a pipeline licence can be granted. Relevant procedures may include reaching an indigenaus land use agreement with native title parties, complying with the provisions of s.24KA (which applies to facilities for services to the public), or complying with the same procedural rights as apply to freehold title holders, and certain additional procedural rights.

Oause 10 substitutes section 20(2) of the Act to provide that the grant of an easement does not authorise the compulsory acquisition of native title rights and interests.

Oause 11 substitutes sections 22, 22A, 22B and 22C and inserts two new sections 22D and22E.

New section 22 provides for the compulsory acquisition of private land and that the Land Acquisition and Compensation Ad 1986 applies.

New section 22A provides for the compulsory acquisition of native title land and that the Land Acquisition Act 1986 applies. The Minister is authorised to comply with any relevant procedure under the Native Title Act 1993 (Cth).

175


New section 22B provides for the referral of objections to the Victorian Ovil and Administrative Tribunal (the Tribunal).

New section 22C provides for the determination of objections by the Tribunal.

New section 220 provides for disputed claims for compensation in relation to native title including the right to just terms compensation.

New section 22E provides for the validity of pipelines permits.

Clause 13 makes a consequential amendment to Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998.

The Committee notes the evidence given before it on 9 November 1998 by Mr Sid Spindler and Mr Peter Lewis on behalf of 'Defenders of Native Title' and the written submissions made to it by a number of interested individuals and organisations.

The Committee notes the High Court's decisions in Mabo(1), Mabo(2) and in Wik, relating to natitve title.

It further notes that Native Title Rights are property interests within the meaning of section 18 of the the Property Law Act 1958 and that property interests are 'rights' within the meaning of section 4D(a)(i) of the Parliamentary Committees Act 1968.

The Committee notes that the Bill confirms the total or partial extinguishment effect on native title of previous exclusive and non-exclusive acts respectively and validates 'intermediate period acts' attributable to the State. The Committee recognises that this may effectively result in the extinguishment of certain native title rights and that the validation restores the legal force to State acts which may have been legally ineffective in extinguishing native title during the intermediate period.

The Committee acknowledges that whilst the Bill provides for the 'compulsory acquisition of property' it also provides for the payment of compensation to any affected native title holders. It may be that forms of compensation can ultimately incorporate reference to access to land but such provisions are not incorporated in the present Bill.

The Committee notes the comments in the Second Reading Speech by the Minister, concerning the need to provide legal certainty following the High Court's judgment in Wik, in respect to certain property interests.

It further notes that the provisions of the Bill are of a validating and/or declaratory nature dealing with State acts carried out in the past and that the Bill therefore has retrospective application and may lead to adverse outcomes for some affected native title holders.

The Committee refers the matter to Parliament for its consideration.


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Legal Aid (Amendment) Bill

7.1


7.2

The Bill amends the Legal Aid Act 1978 (the Act). The main purposes of the Bill are:-

(a) to provide for the waiver of a "means test'' in relation to legal assistance matters under the Crimes (Mental Impairment and Unfitness to be Trii!d) Act 1997;

(b) to make provision for certain money to be paid directly to the Legal Aid Fund;

(c) to clarify the powers of VLA (Victoria Legal Aid) in respect of panels of legal practitioners; and

(d) to provide for VLA to enter into legal aid arrangements.

7.3

Clause 2 The amendments introduced by the Bill (saving Parts 3 and 4) come into operation on Royal Assent. Parts 3 and 4 commence operation on proclamation but not later than by 1 January 1999.

Clause 4 inserts a new sub-section (2A) into section 24 of the Act and provides that in the making of a dedsion whether legal assistance is to be provided in respect of certain applications made under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, VLA is not required to have regard to certain financial matters pursuant to section 24 of the Act. In these cases the "means test'' can be waived.


The Bill continues and improves the arrangements made under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. That Act abolished what was known as the "Governor's pleasure" system and established new procedures to deal with persons who are presented for trial before the County or Supreme Court charged with an indictable offence and who are found to be unfit to be tried or found not guilty on the ground of mental impairment. Persons formerly detained at the "Governor's pleasure" can return to court for review of their status. It is proposed that where these people make an application far legal assistance from Victoria Legal Aid, in respect of applications under that Act, that the means test far legal aid be waived.

The Crimes (Mental impairment and Unfitness to be Tried) Act 1997 sets up a system specifically designed to cater for offenders who are required to return to the court for determination of questions of release. This is not the normal process for prisoners. In general, prisoners make application to the adult parole board for the determination of a period of parole. This application can be made at no cost to the prisoner.

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It is appropriate therefore to waive the means test, to applications for assistance far proceedings under the Act, once a person 1uzs received an order under the Act or as a former detainee at the Governor's pleasure.

Clause 6 inserts a new section 27 A into the Act and clarifies the situation where a person has made payments to VLA on account of out of pocket expenses in advance of legal assistance being provided and that assistance is subsequently not provided, that VLA must refund such amounts from the Fund.

Clause 7 amends section 30 of the Act by substituting sub-sections (4) to (16F) for the old sub-sections (4) to (16). Practitioners will now apply for inclusion to any referral panel established under section 30 and are disqualified in certain circumstances from re-applying. Where applications are refused the practitioner may have the matter heard by an independent reviewer. VLA has power to remove a practitioner from a referral panel. A practitioner may also request to be removed from the panel. Removal of a practitioner from a panel is subject to review by an independent reviewer.


Clause 8 substitutes new sub-sections (18) and (18A) in lieu of sub-section (18) of section 30 of the Act. The new section 30(18) and (18A) provides:-

(18) A decision of VIA or a determination of an independent reviewer under this section is final and not subject to appeal.

(18A) Nothing in sub-section (18) prevents the taking of proceedings-

(a) seeking the grant of any relief or remedy in the nature of certiorari, prohibition, mandamus or quo warranto or the grant of a decision or an injunction; or

(b) seeking any order under the Administrative Law Act 1978-in respect of any decision of VIA or determination of an independent reviewer under this section.


178

Section 30 allows Victoria Legal Aid to set up referral panels of practitioners who may be chosen to carry our legal aid services far Victoria Legal Aid. Only one panelluls been established under this section. This constitutes most practitioners in Victoria.

Section 30 also provides a process for Victoria Legal Aid to remove solicitors from the panel. This process is very cumbersome and unclear.

Amendments are proposed to streamline the section 30 process and deal with a number of problems which have emerged with the current farm of section 30. The most significant amendment is to remove the option of practitioners who are removed from the panel from making application to the Supreme Court. Grounds far removal provided in the Act include where a practitioner habitually takes an excessive time to defend persons clulrged with criminal offences and where a practitioner luls ceased to practise.


The removal of the Supreme Court appeal, which is costly and time-consuming for all parties involved, will also allow resources allocated by Victoria Legal Aid to defending its decision in the Supreme Court to be used for funding casework.

Clause 11 inserts a new sub-section (4) in section 498 of the Act providing that it is the intention of section 30(18) (as substituted by the Bill) to alter or vary section 85 of the Constitution Act 1975. The Committee notes the Minister's section 85 statement made in the Second Reading Speech:-

Clause 11 of the Bill inserts a new section 49B(4) into the Act, which provides that it is the intention of the substituted section 30(18) to alter or vary section 85 of the Constitution Act 1975. Clause 8 of the Bill substitutes the previous section 30(18) of the Act for a new section 30(18).

The previous section 30(18) provided an appeal to the Supreme Court by a practitioner aggrieved by any exclusion or removal from a referral panel established under section 30. The Bill limits the jurisdiction of the Supreme Court by removing this appeal to the Supreme Court.

A system allowing an independent reviewer to hear and determine matters under section 30 was introduced in 1997. This independent review mechanism, in conjunction with the ability to bring proceedings under the Administrative Law Act 1978 in relation to removal of a practitioner from the panel, are retained in the Act. Those processes provide a fair avenue of redress for a practitioner aggrieved by a decision under section 30, without the need for recourse to the Supreme Court.

Under the amended section 30, before Victoria Legal Aid can refuse to include a practitioner on a referral panel, the practitioner may have that "proposal refusaln heard and determined by an independent reviewer under section 30. Similarly, before Victoria Legal Aid may remove a practitioner from a referral panel established under section 30, the practitioner may have that "proposed removal" heard and determined by an independent reviewer.

The removal of the appeal to the Supreme Court will not affect other available remedies. The substituted section 30(18) provides that nothing in that section prevents the taking of proceedings seeking any orders under the Administrative Law Act 1978 or seeking relief in the nature of certiorari, prohibition, mandamus or quo warranto or the grant of a declaration or injunction.

The Committe£ notes the limitation to the jurisdiction of the Supreme Court and that alternative review and appeal mechanisms are available under section 30 of the Act (as amended by the Bill).

The Committee further notes that nothing in new sub-section (18) prevents the taking of proceedings seeking the grant of any relief or remedy in the nature of certiorari, prohibition, mandamus or quo warranto or the grant of a declaration or an injunction or the Se£king of any order under the Administrative Law Act 1978 in respect of any decision of VIA or a determination of an independent reviewer.


179


Clauses 13 to 17 deal with funding arrangements. Clause 15 allow the VLA to enter into legal aid arrangements with the Commonwealth with the approval of the Attorney-General


Licensing and Tribunal (Amendment) Bill

8.1


8.2

The Bill amends the following Acts:-

The Co-operatives Act 1996; the Domestic Building Contracts Act 1995; the Motor Car Traders Act 1986; the Prostitution Control Act 1994; the Second-Hand Dealers and Pawnbrokers Act 1989; the Small Claims Act 1973; the Tribunals and Licensing Authorities (Miscellaneous Amendments) Act 1998; and the Victorian Civil and Administrative Tribunal Act 1998.

The Bill makes consequential amendments to a number of other related Acts.

8.3

Clause 2 Parts 1 and 2 commence operation on Royal Assent. The remammg provisions, saving Part 8 and section 37(3), commence upon proclamation but not later than by 1 July 1999.

Clause 2(2) provides that Part 8 and section 37(3) are deemed to have come into operation on 1 July 1998.

Part 8 (clauses 21 and 22) amends the Tribunals and Licensing Authorities (Miscellaneous Amendments) Act 1998. The Explanatory Memorandum to the Bill states that the amendments address inadvertent errors contained in amendments made by that Act and amendments which should have been included in that Act but were inadvertently left out.

The Committee notes the comments in the Explanatory Memorandum that the respective amendments were inadvertently omitted in the Tribunals and Licensing Authorities (Miscellaneous Amendments) Bill earlier this year and notes that the retrospective operation is designed to ensure that the amendments apply as at the date the Victorian Civil and Administrative Tribunal commenced operation on 1 July 1998.

The Committee believes that the retrospective operation of these amendments are justified in the circumstances.

180


Clause 37(3) substitutes a reference to the Business licensing Authority for a reference to the Tribunal in section 22(3) of the Estate Agents Act 1980.

In respect to clause 37(3) the Committee notes the retrospective operation of the provision involves a machinery of government nomenaclature provision and is justified in the circumstances.

Clauses 3 to 5 make amendments to the Co-operatives Act 1996.

Clauses 6 and 7 make amendments to the Domestic Building Contracts Act 1995. The Committee notes the comments in the Second Reading Speech:-

Under the Domestic Building Contracts Act 1995 a builder is not able to demand final payment under a mt~jor domestic building contract (that is, one worth more than $5,000) until the work is completed in accordance with the plans and specifications of the contract and the owner is given either a copy of a permit under the Building Act 1993 or a copy of the certificate of final inspection.

This has enabled certain owners to extend unreasonably the time for mt~king the final payment in circumstances where only very minor works or minor rectification remains outstanding. This has also happened where a discrete item requiring installation is not available from a third party supplier. In either case, the owner can occupy the building but nevertheless at times withholds final payment to the builder.

Before the Domestic Building Contracts Act 1995, domestic building contracts relied upon a concept of "practical completion" as entitling builders to demand final payment. This led to significant dissatisfaction from owners who were frequently left in a position where final payment was mt~de and unfinished works never completed. The Act addressed this problem but the possibility of abuse has swung in favour of owners.

The Bill solves this problem by expanding the powers of VCA T (operating in the domestic building list) to be able to order part payment of the final instalment to the builder in appropriate circumstances as well as payment of the amount due in dispute to the domestic builders fund pending resolution of the dispute.

This amendment will help prevent inequity to either owners or builders during the completion of domestic building.

Clauses 8 and 9 amend the Motor Car Traders Act 1986.

Clauses 10 and 11 amend the Prostitution Control Act 1994. The Committee notes the comments in the Second Reading Speech:-

The amendments in the Bill to the Prostitution Control Act 1994 are proposed to give the Director of the Office of Fair Trading and Business Affairs the power to take disciplinary action against licensed prostitution service providers and approved mt~nagers, to confer certain ancillary powers on the Director ...

Clauses 12 to 15 amend the Second-Hand Dealers and Pawnbrokers Act 1989 (the Act).

Clause 12 amends the definition of "associate" in section 3(1) of the Act so as to exclude from the definition a spouse or de facto spouse who is not, has not been, and will not

181


be involved in the person's business as a second-hand dealer and pawnbroker. (see excerpt below from Second Reading Speech). Clause 13 inserts a new section 6 in the Act so as to exclude from some of the categories of persons ineligible to be registered, persons who have been given permission to be registered under the new section lOA (see Second Reading Speech excerpts below). Clause 14 amends section 9B of that Act to provide for reviews by VCAT of decisions of the Business Licensing Authority in respect of applications for permission under section lOA of the Act, and to impose, vary or revoke a condition of a permission. Clause 15 substitutes a new section 10 and inserts new sections lOA (referred to above) and lOB. The provisions relate to automatic cancellation of registration, permission to be registered or to continue to be registered and conditions placed on such permission respectively. The Committee notes the comments in the Second Reading Speech:-

The definition of associate has been found to be problematic due to the unintended broadness of its application. The Bill amends the definition of associate in the SecondHand Dealers and Pawnbrokers Act 1989 to make it clear that a person who has a spouse who has disqualifying convictions or is insolvent is still eligible for registration provided that the spouse is not involved in the business.

The Bill also amends the Act to provide that a person may be permitted to register even though he or she does not meet all of the eligibility requirements. The amendments are generally aimed at providing an exception where a registered person might otherwise be ineligible due to offences by that person or by an associate of that person. They are designed to overcome the perceived inflexibility in the present provisions which has given rise to some concern.

The permission procedure itself is based on similar existing provisions in the Estate Agents Act 1980 and the Motor Car Traders Act 1986 and similar provisions in the Consumer Credit (Finance Brokers) Bill.

Lastly, the Act will be amended to ensure that persons who have been disqualified from participating in other industries are required to seek the permission of the Business Licensing Autharity to enter or carry business as a second-hand dealer and pawnbroker.

Clauses 16 to 20 amend the Small Claims Act 1973 (the Act). Clause 16 amends the definition in section 2 of the Act by replacing the definition of "consumer'' with a definition of "customer'' and thereby removes the prohibition of a customer being either a corporation or a person who buys or hires goods and services in the course of trade or business or for resale or re-hire. The Committee notes the comments in the Second Reading Speech:-

182

The definition of "consumer" in the Small Claims Act 1973 excludes both persons who buy goods or services in the course of trade or business and companies. As a result, only individuals are able to use the expeditious and inexpensive procedures of VCAT to solve their small claim disputes with traders. A trader who wishes to solve a similar dispute with another trader is obliged to bring an action against that other trader in the Magistrates' Court.

The Bill replaces the definition of "consumer" in the Small Claims Act 1973 with one of "customer" and amends it by removing these two exclusions and so allowing VCAT to hear what are generally known as utrader/trader disputes". Small business, corporate or otherwise, will therefore be able to access the same procedure available to individuals.


Thus a company might, as a customer, bring an action against another trader in VCAT one day and find itself being sued, as a trader, in VCAT the next.

The company in question could be a proprietary company as well as a public company. The option for either to bring an action in the Magistrates' Court will remain.

The right to bring an action in VCAT will remain solely with a consumer and the right will lie against a trader. A trader will not be able to bring an action against a consumer.

Clause 18 inserts a new section 17 in the Act and allows a court to stay proceedings before it on the application of the defendant if the court considers the proceedings would be more appropriately dealt with by VCAT, provided the interests of the plaintiff are not materially disadvantaged by the granting of the stay. Clause 19 removes the word "applicant" from section 18 of the Act allowing the VCAT to make an order against an applicant in a small claim proceeding. An amendment to section 19 of the Act allows the parties, by written consent, to wave the jurisdictional limit of $10,000 of VCAT allowing VCAT to make an order in excess of that amount. The Committee notes the comments in the Second Reading Speech:-

The level of $10,000 being the upper limit of a small claim will not be amended although the figure may be reviewed if the need arises and the caseload of VCA T so demands. The Bill will, however, allow VCAT to hear a small claim dispute involving a figure greater than $10,000 if all parties to the action so agree.

Another change made by the Bill will allow VCAT to make an order against the applicant which is currently prohibited by the Small Claims Act 1973. This will provide VCAT with a greater degree of flexibility in determining a suitable remedy if the justice of the case so requires.

The conferral of this new jurisdiction on VCAT combined with these other amendments will greatly assist small business in Victoria by providing it with a much quicker and less expensive way of resolving disputes with other traders.

Clause 23 amends provisions of the Victorian Civil and Administrative Tribunal Act 1998.

Clauses 24 to 34 constitute Part 10 of the Bill and make amends to a number of Acts. The amendments replace references to the former Administrative Appeals Tribunal or a reference to "the court" with references to VCAT. These amendments were inadvertently omitted from earlier legislation.

Clauses 35 to 39 makes amendments to a number of other licensing Acts by, inter alia, inserting new definitions of "externally-administered body corporate" and "insolvent under administration" in those Acts.


183


Local Government (Nillumbik Shire Council) Bill

9.1

The Bill was introduced into the Legislative Assembly on 21 October 1998 by the Honourable Rob Madellan MP with the Honourable Tom Reynolds MP. The Second Reading Speech was delivered on 22 October 1998.

9.2

The Bill dismisses the Nillumbik Shire Council; makes provision for the expiry of the Order in Council that applies to that Council; and sets a date for a general election of the Nillumbik Shire Council.

9.3

Clause 2 The Bill comes into operation upon Royal Assent. Clause 3 The Bill must be construed as if it were part of the Local Government Act 1989. Clause 4 defines the "Order in Council" made on 13 October 1998.

Clause 5 dismisses the Nillumbik Shire Council. The councillors cease to hold office and the administrator appointed by the Order in Council continues as the administrator of the Council.

Clause 6 sets 20 March 1999 as the date for a general election to be held for the Nillumbik Shire Council. The Committee notes the comments in the Second Reading Speech:-

The Bill provides for the next general election of the Nillumbik Shire Council be set at 2IJ March 1999 in line with other council elections.

Following the election the Chief Executive Officer of Nillumbik Shire Council must call a council meeting within 14 days of the declaration of the result of the election by the returning officer. The Order in Council expires at the start of the council meeting.

The Bill also clarifies that section 36(2) of the Local Government Act 1989 will apply to an election held under this Act, so that a subsequent election will be held on the third Saturday in March every third year.

The Government recognises the desirability of returning an elected government to Nillumbik as soon as good governance is restored to the Shire. This Bill ensures that elections will take place as soon as possible.

The Committee notes, but does not herein reproduce the entire text of the Second Reading Speech detailing the circumstances leading to the dismissal of the Nillumbik Shire CounciL

The Committee further notes there is provision in the Bill for a general election to be held on 20 March 1999 in line with other council elections.


184


Melbourne City Link (Amendment) Bill

10.1

The Bill was introduced into the Legislative Assembly on 21 October 1998 by the Honourable Rob Maclellan MP with the Honourable Tom Reynolds MP. The Second Reading Speech was delivered on 22 October 1998.

10.2

The Bill amends the Melbourne City Link Ad 1995 (the Act) and certain other Acts. The main purposes of the Bill are:-

(a) to facilitate the administration and enforcement of the tolling provisions of the Act;

(b) to make further provision in relation to the privacy of information collected in relation to tolling;

(c) to provide for certain powers in relation to the operation of the Link road and the Extension road; and

(d) to provide for certain powers in relation to particular land in the project area.

10.3

Clause 2 The amendments, saving section 18(2) and (5), come into operation on Royal Assent. Section 18(2) and (5) come into operation on proclamation but not later than by 31 December 2000.

Clause 12 inserts new definitions into Part 4 of the Act including for "start-up period" being a prescribed period during which lower penalties may apply.

Clause 15 replaces section 73 with new sections 73 to 73E and creates an offence to use a vehicle on the Gty Link or Exhibition Street Extension (the roads) if it is not registered (unless otherwise exempt from registration). One trip being one offence. It is a defence if the driver believed on reasonable grounds that the vehicle was registered to use the roads.

New sections 73A, 73B and 73C deal with the on-going and temporary registration and cancellation of registration of vehicles to use the roads.

New section 730 requires a relevant corporation to give certain tolling zone use information to persons seeking registration. It is an offence to fail to do so.

New section 73E deals with certain notice of cancellation or suspension requirements by corporations to persons in accordance with tolling agreements.

Clause 16 substitutes section 75 and makes it an offence to obtain registration by fraudulent or collusive means.

Oause 20 amends section 82 of the Act to enable an infringement notice penalty for toll evasion to be reduced during the start-up period to a fine not exceeding $100. The penalty after the start-up period will revert to $100 (one penalty unit). Oause 21

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substitutes section 86 of the Act and allows the PERIN procedure under the Magistrates' Court Act 1989 to be used for infringement notices for tolling fines.

Clause 22 amends sections 87 and 89 of the Act in relation to the production of evidence generated by the tolling scanners or from the tolling records for use in legal proceedings relating to tolling. Clause 23 substitutes section 88 of the Act and allows evidence generated by the tolling system to be used on a similar basis to existing red light and speed camera legislation.

Clause 25 inserts a new Division 3 in Part 4 of the Act and establish a regime for the privacy of tolling records. Unauthorised use will attract a maximum fine of $10,000. Section 90B will permit access to tolling records to the police for the enforcement of the criminal law (indictable offences only, but including offences committed outside Victoria that would have been indictable offences if committed in Victoria). Section 90C requires the police to maintain records of access to information provided under 90B for the purposes of monitoring by the Ombudsman. 90D allows courts to use tolling records to be used for the purpose of enforcing and executing Court orders. New section 91 authorises the Roads Corporation and its staff and agents to disclose information to the enforcement agency for the purposes of tolling information. Clause 26 allows a person authorised by the Minister to inspect tolling records. The Committee notes the comments in the Second Reading Speech:-

Transurban proposes to offer an anonymous account under which owners may avoid disclosing personal or vehicle registration details. Special commercial conditions apply to such accounts. The Bill permits such a product.

Unauthorised use or disclosure is an offence and carries a fine of up to $10,000. The existing provisions were modelled on the privacy laws for motor registration records, which were extensively amended last year.

The Committee notes, but does not herein reproduce, the comments in the Minister's Second Reading Speech delivered on 22 October 1998 relevant to the privacy of tolling records resulting from the tolling regime introduced by the Act, as amended by this BilL

Clause 30 inserts new sections 114A and 114B in the Act and authorises the relevant corporation to remove stationery vehicles and abandoned property from hazardous locations, such as tunnels.

Clause 31 amends the regulation making powers under section 118 of the Act prescribing the method for the production of evidence from the tolling system for use in legal proceedings and exempting vehicles from registration.

Clause 35 amends section 13 of the Ombudsman Act 1973 to confer jurisdiction on the ombudsman to monitor police compliance with the proposed new regime of tolling records use for law enforcement purposes introduced by the provisions of this Bill. New section 22B allows the Ombudsman and authorised officers to enter police premises for the purposes of enforcing the toll records provisions and 22C requires the police to give reasonable assistance to the Ombudsman carrying out monitoring functions. Clause 37 inserts a new section 25A requiring the Ombudsman to report

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annually to the Minister on the results of the monitoring with a copy of the report also to be provided to the Chief Commissioner of Police and the Attorney-General.

Clauses 42 and 43 amend the Impounding of Livestock Act 1994 to confer power on the operators of City Link and the Exhibition Street Extension the powers of a highway authority to remove stray animals and to deliver them to the nearest pound.

Clause 44 amends the Magistrates' Court Act 1989 in several respects as a consequence of the new tolling enforcement and infringement procedures introduced by this Bill.

Clause 45 inserts a new section 9AA into the Road Transport (Dangerous Goods) Act 1995. This will empower the WorkCover Authority, as the "Competent Authority" for the transport of dangerous goods in Victoria, to prohibit or regulate the transport of dangerous goods (as defined in that Act) on particular routes, in particular areas or at particular times. The purpose is a general power not limited to the Oty Link, but will enable Oty Link to prohibit the use of Oty Link tunnels by certain vehicles.


Racing and Betting Acts (Amendment) Bill

11.1

The Bill was introduced into the Legislative Assembly on 21 October 1998 by the Honourable Tom Reynolds MP with the Honourable Alan Stockdale MP. The Second Reading Speech was delivered on 22 October 1998.

11.2

The Bill amends the Racing Acts 1958, the Lotteries Gaming and Betting Act 1966, the Stamps Act 1958, the Gaming No. 2 Act 1997 and the Gaming and Betting Act 1994.

11.3

Clause 2 provides that Part 1 comes into operation on Royal Assent. The remaining provisions commence on proclamation but not later than by 1 December 1999.

Amendments to the Racing Act 1958 (the Act)

Clause 5 amends section 5 of the Racing Act 1958 to provide that it is lawful for certain types of wagering to take place at any time on approved racecourses. The Committee notes the comments in the Second Reading Speech:-

The Bill will enable bookmakers to conduct sports betting at approved racecourses at any time. Sports bookmakers are currently confined to accepting bets while on a racecourse only when a race meeting is in progress. This restriction represents a major competitive disadvantage compared to their interstate counterparts who are generally entitled to operate on a 24 hour basis. Tabcorp, which also conducts fixed odds sports betting, has no time restriction imposed upon its operation.

187


Clause 11 amends section 40(1) of the Act to provide that appointment to the Harness Racing Board may be made for a period of up to 3 years as specified in the instrument of appointment. The current provision is a fixed 3 year term.

Clause 13 amends section 45 of the Act to empower the Minister, on the recommendation of the Harness Racing Board to suspend the members of a committee or other managing body of any harness racing club and appoint an administrator of the club. Clause 15 amends the Act by inserting new sections 49A and 49C and deals with the hearing of appeals by the Harness Racing Board. Clause 19 amends section 80 of the Act and deals with the hearing of appeals by the Greyhound Racing Control Board.

Clause 23 amends section 94A of the Act to extend the time limits and circumstances for the lodgement of complaints against bookmakers who default in the payment of wagers. The Committee notes the comments in the Second Reading Speech:-

The Bill enhances the operation of the guarantee scheme which protects punters against defaulting bookmakers. The time limits for punters to lodge claims in relation to unpaid wagers are to be extended to provide a period of 60 days for a cash betting claim to be lodged and 21 days for a credit betting claim. In addition, credit bettors will be afforded a second opportunity to lodge claims after being notified that a bookmaker has defaulted. The legislation will also be amended to clarify that claims lodged with the Victorian Bookmakers Association are covered by the scheme.

Amendments to the Lotteries Gaming and Betting Act 1966 (the Act)

Clause 26 amends section 16 of the Act to recognise that bets made in accordance with section 4 of the RAcing Act 1958 or a club betting permit are wagers recoverable by law. Clause 27 amends section 38(2A) of the Act to provide that it is optional for fees to be prescribed for approvals for betting on foot races and bicycle races.

Amendments to the Stamps Act 1958 (the Act)

Clause 33 amends section 118(2) of the Act to permit the Comptroller of Stamps or any authorised officer powers of entry and inspection at a race-course or sports ground or at premises specified in a betting permit to ascertain compliance with the Act and the regulations.


Rail Corporations (Further Amendment) Bill

12.1

The Bill was introduced into the Legislative Assembly on 21 October 1998 by the Honourable Alan Stockdale MP with the Honourable Phil Honeywood MP. The Second Reading Speech was delivered on 27 October 1998.

188


12.2

The Bill amends the Rail Corporations Act 1996 and the Transport Act 1983.

12.3

Clause 2 provides that Part 1 and sections 40 to 43 commence operation on Royal Assent and the remaining provisions commence on proclamation but not later than on 1 January 2000.

Part 2 Amendments to the Rail Corporations Act 1996 (the Act)

Clause 14 insert new sections 59A to 59C and deal with the officers and employees of rail corporations, their deemed transfer and the employment of those transferred employees on the same terms and conditions as with the former employer.

Clause 15 substitutes new Parts 4 to 7 in the Act. In the substituted Part 4 new section 60 requires owners or occupiers of land, on reasonable written request to fell and remove any tree or wood that is within 60 metres of a railway track that could obstruct a view of a signal box.

New section 61 provides that any person to which the section applies (see s. 61(3)) is under no obligation to fence or contribute to the fencing of any portion of a railway or tramway or be liable for any damage that may be caused by reason of any railway or tramway not being fenced in or fenced off. The requirement to fence or maintain fencing is discretionary. (sees. 61(2)).

The Committee notes the provisions in relation to fencing and that similar provisions are found in the existing legislation. The Committee notes the policy reasons why the requirement to fence or maintain fencing is discretionary and that there are substantive policy reasons not to attach legal liability for failure to fence or maintain fencing.


Clause 15 (cont.) The substituted Part 5 deals with prohibited interests in certain shares and trusts and imposes cross-ownership restrictions on metropolitan train and tram operators and persons who have controlling interests in those operators. If the Office of the Regulator-General (ORG) determines that a person has a prohibited interest it may require that the offender dispose of the relevant shares or desist from controlling the relevant corporation within 3 months or a longer period if so specified. If the person fails to dispose of those shares they are forfeited to the Crown (new section 96). New section 100 provides that a person on whom notice of a determination of ORG is served under Part 5 may appeal to the Supreme Court against the determination. An appeal must be made within 21 days of service (section 102 deals with service) of such a determination and the period of limitation may not be extended. Sub-section (5) states that except as provided under Part 5 a determination may not be challenged or called into question.

New section 105 provides that it is the intention of section 100(5) to alter or vary section 85 of the Constitution Act 1975.

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Clause 205 states that it is the intention of the new section 59T of the Rail Corporations Ad 1996, as proposed to be inserted by clause 203 of this Bill, to alter or vary section 85 of the Constitution Act 1975. The variation limits the Supreme Courts ability to review determinations of the Office of the Regulator-General made pursuant to part 3A of this Bill except as provided for in Part 3A. The Part provides that the Court can only vary or quash a determination made pursuant to Part 3A where the Court is satisfied that proper grounds for making the determination did not exist.

The reason for varying section 85 of the Constitution Act 1975 is to ensure that rail and tram services cannot be jeopardised by appeals against determinations on frivolous or vexatious grounds.

The Committee is of the view that, subject to the amendments referred to above the proposed section 85 are appropriate and desirable in all the circumstances.

New section 104 excludes from the operation of the Freedom of Information Act 1982 documents disclosing the identity of any person expressing an interest in purchasing any property of V /Line Freight, V /Line Passenger Corporation, Met Train 1, Met Train 2, Met Tram 1, Met Tram 2 or any shares in a train or tram operator or any document which discloses the terms of any such expression of interest or offer.

New section 106A in Part 7 (Transitional) provides that on the privatisation of V /Line Freight the Public Transport Corporation established under Part II of the Transport Act 1983 becomes the successor in law of V /Line Freight and the directors and CEO of V /Line go out of office.

Part 3 Amendments to the Transport Act 1983 (the Act)

Clause 22 inserts a new section 8 and 9 of the Act establishing a Director of Public Transport and sets out the powers and functions of the Director.

Clause 27 inserts definitions of 'ticket offence' and 'ticket infringement' in section 208 of the Act. Clause 29 provides a new definition for 'authorised officer' in section 211 of the Act for the purpose of ticket infringements.

Clause 30 amends section 212 of the Act and deals with ticket and transport infringements and allows authorised officers and members of the police force to serve infringements notices and allows regulations to be made prescribing ticket infringements for which notices may be served. Clause 31 inserts a new sub-section (2A) in section 218B and empowers authorised officers to request name and address where an officer believes on reasonable grounds that a person has committed or is about to commit certain specified offences.

Clause 32 inserts a new section 219AA and empowers authorised persons to detain suspected offenders for reasons of public safety; to ensure the persons appearance in court; to preserve public order; to prevent the continuation of the offence or the commission of a further offence. The authorised person may ask another person for assistance in such detention and must not use any more force than is reasonable in the circumstances. The authorised person must give the alleged offender into the charge of the police as soon as practicable after detaining them.

190


Clause 33 amends section 220 of the Act dealing with the power to remove offenders from premises or property of the corporation or company. The Committee notes the comments in the Second Reading Speech:-

Authorised officers employed by the franchises will be given certain powers which officers of the PTC currently have (for example powers to require a name and address, to remove offenders from vehicles and to detain offenders until they can be handed to Police). The operators will also have power to issue infringement notices for fare evasion. The enforcement of these notices once issued will be by the Department of Infrastructure and the proceeds from any fines issued will be retained by the State.

Clause 34 inserts new sub-sections (lA) and (lB) in section 221 of the Act to allow a passenger transport company, with the approval of the Secretary or the Director to determine conditions to which a ticket of a specified class issued by it is to be subject and publish those conditions in the Government Gazette.

Clause 35 makes consequential amendments in relation to graffiti offences. Oause 36 inserts a new section 229(1AA) in the Act and deals with who may bring proceedings for ticket offences.

Clause 39 inserts a new section 249C in the Act which provides an exemption, in respect of the construction or design of tram or light rail vehicles and the provision of stoping facilities and associated facilities for passenger transport services adjacent to tram infrastructure, from the provisions of the Equal Opportunity Act 1995 which prohibit discrimination on the basis of impairment. The exemption expires on 1 January 2008 (section 249C(2)). The Committee notes the comments in the Second Reading Speech:-

The government spelled out its intentions in the 12 Passenger Guarantees announced in April. It has guarantees on service levels, fares, punctuality, reliability, service quality, safety and a range of other issues of importance to passengers. These guarantees will be enshrined in legally binding long term contracts with future private sector operators.


State Taxation (Further Amendment) Bill

13.1

The Bill was introduced into the Legislative Assembly on 7 October 1998 by the Honourable Alan Stockdale MP with the Honourable Phil Gude MP. The Second Reading Speech was delivered on 27 October 1998.

13.2

The Bill amends the:-

• Busimss Franchise (Petroleum Products) Act 1979;

• Financial Institutions Duty Act 1982;

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• Land Tax Act 1958;

• Liquor Control Act 1987;

• Pay-rollTaxAct1971;

• Stamps Act 1958; and

• Taxation Administration Act 1977.

13.3

Clause 2 sets out the respective commencement dates for provisions of the Bill as follows:-

(1) Part 1, Part 2, Part 3 (except section 6), Part 4 (except section 10), sections 16 and 21 and Part 8 (except sections 27 and 30) come into operation on the day on which this Act receives the Royal Assent.

(2) Part 5 is deemed to have come into operation at 3.30p.m. on 6 August 1997.

(3) Section 10 is deemed to have come into operation on 26 May 1998.

(4) Sections 17 and 18 are deemed to have come into operation on 1 July 1998.

(5) Sections 6 and 19(1) are deemed to have come into operation on 13 October 1998.

(6) Sections 19(2), 20, 24,25 and 26 come into operation on 1 January 1999.

(7) Sections 12, 13, 14, 15, 22, 23, 27 and 30 come into operation on a day or days to be proclaimed.

Part 2 Amendments to the Business Franchise (Petroleum Products) Act 1979 (the Act)

Clause 3 amends section 17 of the Act to allow an amount of overpayment of subsidy to be off-set against future subsidy payments. Clause 4 amends section 19 of the Act by obliging a person who no longer requires an exemption certificate and does not expect to require such a certificate to surrender it

Clause 5 inserts new sections 20A and 20B into the Act concerning offences of fraudulent use of exemption certificates to obtain fuel or giving false particulars of a diesel fuel exemption certificate. Penalties of up to $60,000 for a body corporate and up to $12,000 in any other case are provided for. The Committee notes the comments in the Second Reading Speech:-

The Bill TMkes a number of technical amendments to the Business Franchise (Petroleum Products) Act 1979 to improoe compliance aspects of the petroleum and diesel subsidy scheme introduced following the High Court's Ha and Lim decision in 1997 in order to reduce possible abuse of the scheme.

Part 3 Amendments to the Financial Institutions Duty Act 1982 (the Act)

Clause 6 substitutes a new definition of 'broker' in section 3(1) of the Act to mean "a person, (other a bank), who is a broker under the Australian Stock Exchange Rules."

192


The existing definition provides that 'broker' means "a person, firm or corporation (other than a bank) who or which is a member of the Australian Stock Exchange Limited."

The Committee notes that the amendment to the definition is deemed to have come into operation on 13 October 1998. The Committee will write to the Minister seeking his comment for the reason why it is thought to be desirable to give retrospective operation to the amended definition.

Part 4 Amendments to the Land Tax Act 1958 (the Act)

Clause 9 amends section 4(4) of the Act to include a member of the police force of or above the rank of inspector as a person to whom information under that Act may be disclosed by the Commissioner of State Revenue.

Clause 10 makes a number of amendments to 13H of the Act. The Committee notes the comments in the Second Reading Speech:-

The Bill also amends the secrecy provisions of the Land Tax Act 1958 to allow officers employed in administering the Land Tax Act 1958 to give taxpayer information to the police, thus overcoming an anomaly whereby the State Revenue Office am give taxpayer information to the police under all other State taxation Acts but not the Land Tax Act 1958.

A further amendment is made in relation to the exemption from ltmd tax which is granted in respect of the Principal Place of Residence, introduced by the Government earlier this year.

The Government wishes to ensure that property owners are not penalised by delays in the construction of their new home, or by a period of substantial renovations during which they cannot occupy that property.

As a result, this Bill clarifies the operation of section 13H of the Land Tax Act 1958 which provides for a refund of land tax to an owner of unoccupied land who, having paid tax for that land, later commences to use it as a principal place of residence. The provision currently allows a refund of the tax paid for the year in which occupation commences, provided the land is then occupied as the principal place of residence for more than 6 months.

This amendment will also allow for the owner to claim a refund of any land tax which was assessed against and paid by the owner for the year preceding the tax year in which the owner occupied that land as a principal place of residence, provided that no principal place of residence exemption was claimed in respect of another property for that year.

The Committee notes that the provisions amending this Act are deemed to have commenced on 26 May 1998. The amendments are designed to have a beneficial effect and do not to involve any additional burden, obligation or tax. In the circumstances the Committee believes the retrospective operation of the provisions is acceptable.

193


Part 5 Amendments to the Liquor Control Act 1987 (the Act)

Clause 11 amends section 119A(l)(b) of the Act to permit the payment of a subsidy under that Act to an interstate supplier or distributor who sells liquor into Victoria if the supplier or distributor holds a licence in Victoria under the Act or holds a licence under the equivalent legislation of another State or Territory.

The Committee notes that the provision amending this Act is deemed to have commenced at 3.30 p.m. on 6 August 1997. The amendment confers the payment of a subsidy where no entitlement previously existed. In the circumstances the Committee believes the retrospective operation of the provision is acceptable.

Part 6 Amendments to the Pay-roll Tax Act 1971 (the Act)

Clauses 12 to 15 concern amends to the Act imposing pay-roll tax on payments made to employment agents by their client businesses in respect of on-hires workers.


194

This amendment is necessary to overcome the effect of the recent decision handed down by the Supreme Court in the case of Drake Personnel Ltd v Commissioner of State Revenue. In that case, the Supreme Court found that on-hired temporary personnel supplied by Drake Personnel to its clients are not common law employees of Drake and many are not deemed to be employees under section 3C of the Pay-roll Tax Act 1971. As a result, a large percentage of payments by an employment agent for services rendered by its temporary personnel are not taxable. Furthermore, the decision creates an environment that encourages other businesses to structure engagement arrangements simply to avoid pay-roll tax if they are to remain competitive and undermine the revenue base.

The Bill meets key Government objectives introducing a robust regime which will clarify liability for pay-roll tax, addresses inequities that result under the relevant contract provisions in section 3C of the Act, and, importantly, will not lead to a broadening of the tax base overall.

The Bill defines an employment agency contract and deems the client to be the employer of the person performing the work for pay-roll tax purposes.

Imposing liability on the client, or 'end-user', prevents the cost of pay-roll tax being passed on from employment agents to clients whose wages would otherwise be exempt under the Act if they employed the workers directly. Similarly, it ensures that clients with total pay-rolls, including payments to agencies, that remain below the small business threshold will not incur tax.

Under this regime, payments made by clients in respect of services provided by workers under employment agency contracts are deemed to be wages. However, in recognition that a component, representing an employment agents' commissions, is usually included in these payments, a prescribed deduction will be allowed where this occurs.

The amendments also ensure that the relevant contract provisions are prevented from applying to employment agency arrangements.


In other jurisdictions that have already introduced employment agency provisions the liability for tax is from the commencement of the contract. Huwever, in response to industry representations the Government has decided to provide an exemption from liability for short-term engagements with any one client. This will be achieved through an exemption from liability during a month on any engagement that is for less than eight days in that calender month.

A supplementary amendment to the introduction of agency provisions is made to the Taxation Administration Act 1997 to allow an employment agency to collect pay-roll tax on behalf of its clients, as agencies may wish to provide this service as part of the overall package of services provided to their clients.

Avoidance practices will be addressed by general anti-avoidance provisions included in this Bill.

The Bill also amends the relevant contract provisions of the Pay-roll Tax Act 1971 to correct an unintended wide interpretation by the courts as to the test of providing services to the public generally.

Oauses 17 and 18 amend section 10 of the Act and insert a new section lOA and concerns the exemption to pay pay-roll tax on wages paid by a body corporate for services performed in connection with the activities of a municipal council or councils under a written arrangement. Oause 18 identifies the criteria upon which the exemption in section 10 is to apply.

The Committee notes that the amendments in clauses 17 and 18 are deemed to have come into operation on 1 July 1998. The amendments confer beneficial exemptions from payroll tax liability where they did not previously exist. In the circumstances the Committee believes the retrospective operation of the provisions are acceptable.

Part 7 Amendments to the Stamps Act 1958


A number of new definitions are inserted into the Act as part of the amendments to impose duty on a new marketable security product, namely instalment warrants. A minor amendment is also made to recognise the change in structure within the Australian Stock Exchange and the new business rules applicable to brokers.

The Bill also changes the nexus for duty levied on policies of insurance to property insured in Victoria or a risk or contingency which may occur in Victoria to ensure that there is no double taxation arising from a different nexus operating across the two States.

A number of amendments are made to the Stamps Act 1958 which are consequential upon the passage of amendments to the Road Safety Act 1986 earlier in these sittings.

An important change is also made regarding stamp duty on returns on the sale of sheep and goats, which follows the Government's recent decision, in consultation with the industry, to increase the level of compensation paid to farmers whose stock has been affected by Ovine Johne's disease. The Victorian sheep industry also has an obligation to contribute to the national Ovine Johne's disease control program. These increased levels of compensation have necessitated the increase in stamp duty.

195


Heading 17A of the Third Schedule to the Stamps Act 1958 deals with statements and returns on the sale of sheep and goats and is being amended to increase the rate of stamp duty on the sale of sheep and goats and their carcases from 9 cents to 12 cents. This stamp duty is collected to pay compensation to producers for sheep and goats slaughtered on account of infection with Ovine Johne's disease.

Parl8 Amends the Ta::mtion Administration Act 1997


Consumer Credit {Finance Brokers) Bill

14.1

The Bill was introduced into the Legislative Assembly on 2 September 1998 by the Honourable }an Wade MP with the Honourable Phil Gude MP. The Second Reading Speech was delivered on 3 September 1998.

14.2

The Committee reported on the Bill in Alert Digest No. 6 of 1998 on 6 October 1998 (at page 3). The Committee wrote to the Minister on 6 October 1998 in the following terms:-

196

The Scrutiny of Acts and Regulations Committee considered the above Bill at a meeting on 5 October 1998.

The Committee expressed concern at clause 4 which inserts a new section 37B into the Consumer Credit (Victoria) Act 1995:-

The Governor in Council may, by Order published in the Government Gazette, declare that this Part, wholly or to the extent specified in the Order, does not apply to-

(a) a specified person or to a specified class of person; or

(b) a specified transaction or to a specified class of transaction.

The Committee is concerned at the very broad declaratory power sought to be introduced by clause 4 and notes that a similar regulation enabling provision is contained in the Act to be repealed (section 3(2) of the Finance Brokers Act 1969). The Committee is concerned that specified cases or classes of cases may be exempted from the operation of the Act either in part or in whole either with conditions or unconditionally. The Committee further notes that no explanation is provided in either the Explanatory Memorandum or the Second Reading Speech for the necessity of such a broad power.

The Committee is of the view that clauses which allow for the amendment of the relevant Act by subordinate legislation, such as a regulation or Government Gazettal of a Governor in Council Order declaring that an Act or a provision of an Act does not apply to, or applies with prescribed changes, are generally objectionable.


The Committee believes that such a prouisions would properly be characterised as a 'Henry Vlll clause' enabling the Act to be expressly or impliedly amended by subordinate legislation or Executive action.

The Committee therefore seeks your response as to why such a power is desirable or warranted in the circumstances. The Committee would appreciate your response by facsimile at your earliest opportunity.


Thank you for your letter of 6 October 1998 about the above Bill.

I refer in particular to your concerns about proposed section 37B of the Consumer Credit (Victoria) Act 1995. Section 37B would prouide for exemptions by Order if Council from proposed Part 4A or specified provisions of that Part. You have stated that the Committee is of the view that clauses which allow for the amendment of the relevant Act by subordinate regulations declaring that an Act or a provision of an Act does not apply to, or applies with prescribed changes, are generally objectionable, and that such a provision would be properly characterised as a "Henry VIII clause" enabling the Act to be expressly or impliedly amended by subordinate legislation or Executive action.

I note that the provision under discussion does not allow for the modification of an Act, as distinct form exemption therefrom. The use of such exemption powers has been common in Victorian and Commonwealth statutes for many years. Indeed the proposed exemption section is relevantly identical with section 10 of the Consumer Credit (Victoria) Act 1995, which provides for exemptions from Part 4 thereof. In turn section 10 is a simplified version of section 19 of the Credit Act 1984, and as you note, proposed section 37B is equivalent to section 3(2) of the Finance Brokers Act 1969.

The policy reasons for permitting exemptions to be done by subordinate regulation include the need for flexibility and rapid response to particular situations. Perhaps more importantly, a power of exemption results in no increased burden on the citizen, but rather the release from an obligation or the lessening of an existing burden. As such the role of Parliament in protecting the citizen from undue obligation has already been discharged.

I trust that these remarks are of assistance to the Committee. I would be happy to provide any additional material which may assist the Committee.

14.4 Attachment- Non-exhaustive list of Victorian statutory provisions allowing for exemption by Order in Council.

Agriculture and Veterinary Chemicals (Control of Use) Act 1992, s. 5

Benefit Associations Act 1958, s. 4( 4)(g)

Credit Act 1984, s. 19

Consumer Credit (Victoria) Act 1995, s. 10

Control of Weapons Act 1990, s. 5(2)

Dangerous Goods Act 1985, s. 9A

197


D01rii!Stic (Feral and Nuisance) Animals Act 1994, s. 5

Electricity Industry Act 1993, s. 160

Environment Protection Act 1970, s. 24(5) and 42A(13)

Farm Produce Wholesale Act 1990, s. 4(4)

Mutual Recognition (Victoria) Bill

15.1


15.2

The Committee reported on the Bill in Alert Digest No. 6 of 1998 on 6 October 1998 (at page 12). The relevant extract of the Committee's comment in relation to the Bill is set out:-

The Committee believes that legislntive expiry should generally be treated similarly to commencement. The Committee believes that an open ended expiry clnuse would not seem to have sufficient regard for the institution of Parliament and would have to be clearly justified. Whilst the Committee notes the comments of the Minister in the Second Reading Speech it will write to the Minister seeking further clnrification for the reasons why a termination by proclnmation clause is regarded as necessary in this instance, rather than a repealing Act.


198

Thank you for your letter concerning the Mutual Recognition (Victoria) Bill and raising the issue of the proposal to terminate Victoria's adoption of the Commonwealth Mutual Recognition Act 1992 on a day fixed by the Governor in Council by proclnmation in the Government Gazette.

I note your comments about the Scrutiny of Acts and Regulntions Committee's view that the removal of a statute or a provision of a statute ought to be regarded as the exercise of legislative power and should be referred back to the Parliament for repeal.

My Government is committed to the principles of mutual recognition and has no intention of terminating Victoria's participation in the mutual recognition scheme. However, it is important to ensure that the Government has the utmost flexibility, should it be necessary to do so. A termination by proclamation clause was used at the time the Parliament referred legislntive power in relntion to industrial relntions to the Commonwealth Parliament.

I also note your prosed alternative of a power to suspend the operation of a provision or provisions of the Act pending repeal at the next sitting. I have been advised that this proposal will not necessarily address your concern, in the event that a Government


praposal will not necessarily address your concern, in the event that a Government suspends the aperation of a provision or provisions of the Act but does not introduce repealing legislation in the Parliament.

You will note that the termination by proclamation clause has bi-partisan support, as evidenced by the Leader of the Opposition's words during the debate on the Bill in the Legislative Assembly.

Health Services (Further Amendment) Bill

16.1

The Committee reported on this Bill in Alert Digest no. 6 on 6 October 1998 and wrote to the Minister on that date expressing concern in respect to clause 6 of the Bill. The Committee again wrote to the Minister on 20 October 1998.

The Committee notes that to date no reply has been received. The Committee will write a further letter to the Minister seeking a reply as soon as possible.

Petroleum Bill

17.1

The Committee reported on this Bill in Alert Digest no. 6 on 6 October 1998 and wrote to the Minister on that date expressing concern in respect to clause 252(2)(f) of the Bill. The Committee again wrote to the minister on 20 October 1998.

The Committee notes that to date no reply has been received. The Committee will write a further letter to the Minister seeking a reply as soon as possible.

Committee Room Monday 9 November 1998

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200

APPENDIX 1 INDEX OF BILLS REPORTED

Accident Compensation (Amendment) Bill ................................................................................ 129

Agriculture Acts (Amendment) Bill ............................................................................................... 42

Ambulance Services (Amendment) Bill ....................................................................................... 51

Appeal Costs Bill ....................................................................................................................... 131

Appropriation (1998/99) Bill ......................................................................................................... 47

Appropriation (Parliament 1998/99) Bill.. ..................................................................................... 47

Arts Acts (Amendment) Bill ....................................................................................................... 107

Arts Acts (Statute Law Revision) Bill ............................................................................................. 3

Bail (Amendment) Bill ................................................................................................................ 133

Building (Amendment) Bill ........................................................................................................... 21

Building (Plumbing) Bill ............................................................................................................. 134

Business Licensing Authority Bill. ................................................................................................ 32

Catchment and Land Protection (Amendment) Bill... ............................................................ 60, 102

Chattel Securities (Amendment) Bill .......................................................................................... 157

Classification (Publications, Films and Computer Games)(Enforcement)(Amendment) Bill ...... 37

Conservation, Forests and Lands (Miscellaneous Amendments) Bill ....................................... 107

Consumer Credit (Finance Brokers) Bill ............................................................................ 109, 196

Credit (Amendment) Bill .............................................................................................................. 22

Crimes (Amendment) Bill .......................................................................................................... 135

Crimes (Family Violence)(Amendment) Bill ................................................................................ 18

Crimes, Confiscation and Evidence Acts (Amendment) Bill ...................................................... 158

Dried Fruits (Repeal) Bill ............................................................................................................. 37

Drugs, Poisons and Controlled Substances (Amendment) Bill. .................................................. 23

Education (Amendment) Bill ...................................................................................................... 138

Education (Self-Governing Schools) Bill ..................................................................................... 41

Education (Teachers) Bill ............................................................................................................ 10

Electricity Industry (Amendment) Bill ........................................................................................... 17

Electricity Industry Acts (Amendment) Bill ................................................................................ 161

Electricity Safety Bill .............................................................................................................. 15, 92

Evidence (Confidential Communications) Bill ............................................................................. 18

Financial Management (Amendment) Bill ..................................................................................... 8

Fire and Emergency Services Acts (Amendment) Bill .................................................................. 3

Firearms (Amendment) Bill ............................................................................................................ 4

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Fundraising Appeals Bill .............................................................................................................. 56

Gaming Acts (Amendment) Bill ................................................................................................... 43

Gaming Acts (Further Amendment) Bill. .................................................................................... 162

Gaming No. 2 (Amendment) Bill. ................................................................................................. 15

Gas Industry (Amendment) Bill ................................................................................................... 72

Gas Industry Acts (Amendment) Bill ......................................................................................... 163

Gas Pipelines Access (Victoria) Bill ...................................................................................... 38, 89

Geographic Place Names Bill.. ...................................................................................................... 9

Health Acts (Statute Law Revision) Bill ......................................................................................... 6

Health Services (Amendment) Bill ............................................................................................... 15

Health Services (Further Amendment) Bill ........................................................................ 110, 199

Heritage Rivers (Amendment) Bill ............................................................................................... 30

International Transfer of Prisoners (Victoria) Bill ................................................................... 53, 99

Land (Further Revocation of Reservations) Bill ....................................................................... 115

Land (Revocation of Reservations) Bill ....................................................................................... 27

Land Tax (Amendment) Bill ......................................................................................................... 59

Land Titles Validation (Amendment) Bill ........................................................................... 169,205

Legal Aid (Amendment) Bill ....................................................................................................... 177

Legal Practice (Amendment) Bill ............................................................................................... 116

Licensing and Tribunal (Amendment) Bill ................................................................................. 180

Liquor Control Reform Bill ......................................................................................................... 140

Livestock Disease Control (Amendment) Bill .............................................................................. 97

Local Government (Amendment) Bill .......................................................................................... 67

Local Government (Darebin City Council) Bill ............................................................................. 29

Local Government (Governance and Melton) Bill ..................................................................... 144

Local Government (Nillumbik Shire Council) Bill ....................................................................... 184

MacKillop Family Services Bill ................................................................................................... 146

Melbourne and Olympic Parks (Amendment) Bill ................................................................. 52, 99

Melbourne City Link (Amendment) Bill ...................................................................................... 185

Melbourne City Link (Exhibition Street Extension) Bill ................................................................ 84

Melbourne Cricket Ground (Amendment) Bill ........................................................................... 147

Miscellaneous Acts (Omnibus No. 1) Bill .................................................................................... 74

Mutual Recognition (Victoria) Bill ...................................................................................... 119, 198

National Parks (Amendment) Bill ................................................................................................ 63

Parks Victoria Bill ......................................................................................................................... 55

Patriotic Funds (Amendment) Bill .............................................................................................. 148

Petroleum Bill .................................................................................................................... 121, 199

Physiotherapists Registration Bill ................................................................................................ 69

Planning and Environment (Amendment) Bill ........................................................................... 123

Printers and Newspapers (Repeal) Bill ....................................................................................... 41

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Appendix 1 - Index of Bill Reportl!d

Property law (Amendment) Bill.. ................................................................................................. 19

Public Correctional Services Authority Bill .................................................................................. 63

Public Prosecutions (Amendment) Bill .......................................................................................... 8

Public Sector Management and Employment Bill ................................................................. 80, 94

Public Sector Reform (Miscellaneous Amendments) Bill ............................................................ 83

Racing and Betting Acts (Amendment) Bill ............................................................................... 187

Rail Corporations (Amendment) Bill ............................................................................................ 61

Rail Corporations (Further Amendment) Bill ............................................................................. 188

Retail Tenancies Reform Bill ......................................................................................................... 6

Road Safety (Amendment) Bill .................................................................................................... 47

Road Safety (Driving Instructors) Bill .......................................................................................... 30

Road Safety (Further Amendment) Bill ..................................................................................... 149

Sea-Carriage Documents Bill ...................................................................................................... 17

St George Bank and Advance Bank Australia Bill.. ..................................................................... 38

State Taxation (Amendment) Bill.. ....................................................................................... 65, 101

State Taxation (Further Amendment) Bill .................................................................................. 191

State Trustees (Amendment) Bill ................................................................................................ 19

Summary Offences (Amendment) Bill ......................................................................................... 10

Superannuation Acts (Amendment) Bill .................................................................................... 150

Tertiary Education (Amendment) Bill.. ........................................................................................... 7

Trade Measurement (Administration)( Amendment) Bill ................................................................. 152

Transfer of Land (Single Register) Bill ........................................................................................ 98

Transport (Amendment) Bill ...................................................................................................... 153

Transport Accident (Amendment) Bill. ................................................................................... 27, 88

Transport Acts (Amendment) Bill ................................................................................................ 20

Trans-Tasman Mutual Recognition (Victoria) Bill ........................................................................ 12

Tribunals and licensing Authorities (Miscellaneous Amendments) Bill ...................................... 33

Valuation of Land (Amendment) Bill... ........................................................................................... 3

Victorian Civil and Administrative Tribunal Bill ............................................................................ 31

Victorian College of the Arts (Amendment) Bill ......................................................................... 124

Victorian Institute of Marine Sciences (Repeal) Bill .................................................................. 125

Victorian Plantations Corporation (Amendment) Bill ................................................................... 29

2D3


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APPENDIX 2 - HISTORY IN BRIEF

LAND TITLES VALIDATION (AMENDMENT) BILL

Relevant history in brief: 1

1. In Mabo v Queensland (No. 2)(1992) 175 CLR 1 the High Court held that the common law of Australia recognises that native title to land held by indigenous people survived the acquisition of sovereignty by the Crown over its Australian colonies. Whether native title still exists today in respect of particular parcels of land will depend on other factors referred to in the High Court's judgment.

2. In Mabo v Queensland (No. 1)(1988) 166 CLR 186, the High Court had held that a State legislative attempt to extinguish any active title which indigenous persons may have held in the Murray Islands, but not other property rights held by nonindigenous people, was a breach of the &cial Discrimination Act 1975 (Cth).

3. A possible consequence of the decision in Mabo (No. 2) was doubt about the legal validity of freehold and other land grants made by State Governments under State legislation since 1975. The grants may have completely or partially extinguished native title rights, without affording native title holders procedural and compensation rights in contravention of the protections guaranteed by the &cial Discrimination Act.

4. The Commonwealth's response to Mabo (No. 2) was to enact the Native Title Act 1993 (Cth). Amongst other things, it allowed States to legislate to validate the doubtful land grants. Validation may in some cases lead to extinguishment of native title, either completely or to the extent of the inconsistency of native title rights with the statutory title validated. The Act provided for payment of compensation for any such extinguishment The Act permitted the validation of all grants made prior to the Native Title Act's commencement date (1 January 1994).

5. Victoria took up this option by enacting the Land Titles Validation Act 1994.

6. The Native Title Act 1993 (Cth) did not deal with the relationship of a validly granted pastoral lease and native title. The assumption of the Commonwealth and State governments was that a pastoral lease granted exclusive possession to the lessee and hence was inconsistent with continuing native title rights over the same land. The Commonwealth Government's view on the matter sufficiently appears from the then Prime Minister's Second Reading Speech when introducing the Native Title Bill 1993 (Cth). He said:-

1 The Committee acknowledges the Relevant History in Brief is extracted (with minor variations) from p. 7-10, Alert Digest, Issue 6 of 1998 (25 August 1998), Scrutiny of Legislation Committee, Parliament of Queensland.

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the government's view [is that] ... under the common law, past valid freehold and leasehold grants extinguish nilfive title. There is therefore no obstacle or hindrance to the renewal of pastoral/eases in the future ...

7. State Governments acted on the same basis and in consequence continued to grant renewals of pastoral leases, and other interests in relation to pastoral land, without regards to the procedures which the Native Title Act 1993 (Cth) applied to dealings involving land subject to native title.

8. On 23 December 1996 the High Court handed down its decision in Wile Peoples v Queensland (1996) 141 ALR 129, finding that at least some Queensland pastoral leases were of such a nature that they would not necessarily have extinguished native title when granted. Native title, if it survived, would co-exist with the pastoral lessee's rights, although giving way to them to the extent that there was any conflict between the two.

9. The Commonwealth's response to the Wik decision was the Native Title Amendment Bill 1997 (Cth). After a difficult passage through the Federal Parliament that bill was recently passed, and came into force on 30 September 1998.

10. The relevant provisions of the Native Title Amendment Act (Cth) have, for present purposes, two objects.

11. The first object is to validate "intermediate period acts" by the Commonwealth of the type mentioned in paragraph 7 above, which took place between 1 January 1994 and 23 December 1996 at a time when it was presumed pastoral leasehold land did not co-exist with native title.

12. In the words of the Commonwealth Attorney-General, taken from his Second Reading Speech on 4 September 1997 introducing the bill:

& I have said, the effect of the grant of a pastoral lease on !Ultive title was not specifically resolved by the High Court in Mabo, nor by the Native Title Act. The previous government assumed that pastoral leases had extinguished native title. As a result of the Wik decision, we now know that pastoral leases do not necessarily have that effect. However, the government does not accept that grants by governments, and actions by others, in particular pastoral lessees, should be left invalid because of a legitimate and reasonable assumption, subsequently found to be wrong.

The appropriate remedy for those actions should be compensation for any native title affected.

Thus, the bill provides for the validation of so-called 'intermediate period acts' over freehold and pastoral lease land and public works, which occurred between 1 January 1994, the date of commencement of the Native Title Act, and 2.3 December 1996, the date of the Wik decision, which might otherwise have been invalid as a consequence of existence of !Ultive title.

13. The Amendment Act (Cth) permits, but does not require, the States to legislate to validate "intermediate period acts" performed by them under State legislation, on the same terms as the Commonwealth Act permits validation of Commonwealth "intermediate period acts".

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Appendix 2- Brief History- Land Titles Validation (Amendment) Bill

14. The second object of the Native Title Amendment Act (Cth) is to confirm that various types of grants and other activities of the Commonwealth in relation to land extinguish native title, either completely or partially. The Federal Attorney-General in introducing the bill stated that these provisions were designed to achieve certainty in that, whilst in light of Mabo, Wik and other High Court decisions it would be reasonable to assume that native title had been either completely or partially extinguished in the stipulated circumstances, the bill unequivocally declared this to be the case.

15. In the words of the Federal Attorney-General:

The approach of the previous government raised expectations of certainty which the Act proved unable to deliver. This proved to be costly to all parties. This government's policy is to bring a much greater level of certainty to bear in relation to native title issues, in particular in relation to the circumstances where it can reasonably be said that native title does not exist. To do so we have chosen to confirm explicitly in the Native Title Act the extinguishment of native title by certain grants or activities by governments.

It needs to be clearly understood that the government does not seek to extinguish native title in this process. We do not seek to go beyond what co:n be inferred from the decisions of the High Court as to what ads have already extinguished native title.

As I have already made plain, this government respects, and will continue to respect, the Mabo and Wik decisions and native title rights of indigenous Australians. But it is in the interests of all Australians to be clear and certain about where extinguishment has already occurred. The resolution of native title issues will be made even more difficult by unrealistic expectations on part of the claimants or by unnecessary uncertainty for others with interests in land.

Accordingly, the bill provides that certain 'previous exclusive possession acts' have extinguished native title. They include the grant of a freehold estate, leases for residential, commercial or community purposes and interests included in a schedule to the Ad. The bill provides that States and Territories are able to confirm that such grants extinguish native title.

The bill is intended to introduce further certainty by confirming the effect of the grant of pastoral lease on native title. Consistent with the High Court's view, States and Territories are able to confirm that the grant of such leases is confirmed to extinguish native title to the extent that the native title rights are inconsistent with those of the pastoralist.

The bill provides that such extinguishment is permanent. The government recognises that the permanency issue was left unresolved by some members of the High Court in the Wik decision. Hawever, it is a central element of the government's approach to amending the Act to put an end to such uncertainty.

To the extent that these provisions confirm the common law there will be no effect on native title rights. But if there is any actual extinguishment by the provisions, the legislation will provide for compensation on just terms. I would note that the

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Scrutiny of Acts and Reguhltions Committee

government has retained the Land Fund to enable Aboriginal peaple and Torres Strait Islanders to remedy past extinguishment of native title rights by purchase of land.

16. The Commonwealth legislation again provides the States with the option of legislating to likewise declare the extinguishment of native title in respect of their dealings under State legislation with respect to relevant matters. An entitlement to compensation will again apply if the statutory extinguishment is subsequently shown to have gone beyond what would have occurred under common law.

17. It is not universally conceded by legal commentators that all of the categories of grants and other activities, listed in the Schedule to the Commonwealth legislation as extinguishing native title, actually have that effect at common law under the legal principles discernible in the Mabo (No. 2) and Wik decisions.

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