ALERT DIGEST 10 of 1994

Part 3

TRANSPORT ACCIDENT (GENERAL AMENDMENT) BILL

6.1

This Bill was introduced into the Legislative Assembly on 5 October 1994 by The Honourable Alan Stockdale, MP with The Honourable Ian Smith MP.

6.2

This Bill amends the Transport Accident Act 1986. It makes amendments:-

to the membership and proceedings of the Board of the Commission;
to improve the administration and operation of the transport accident scheme;
in relation to the enforcement of the registration of motor vehicles;
to section 107A of the Evidence Act 1958;
section 7 of the Accident Compensation (WorkCover Insurance) Act 1993.

The Committee notes the retrospective effect of sections 2(3) and (4).

6.3 _Ż Part 2 - Amendments applying to Transport Accidents on or after 1 January 1995

Clauses 4 and 5 insert various definitions into the Act. Clause 6 inserts new sections 41A and 41B which provide that the Commission is not liable to pay compensation in respect of accidents involving unregistered motor vehicles on private land. Clause 9 amends section 60 to allow the Commission to pay reasonable costs for family counselling services in fatality cases and the reasonable expenses of parents visiting injured dependent children in hospital.

Clause 10 inserts a new section 93(7) which sets out the way in which damages are to be calculated in terms of pecuniary loss and pain and suffering. The new section provides that where there is to be a reduction for contributory negligence, the damages are to be calculated after benefits have been paid in accordance with the new subsection (11). The new subsection (11) sets out the circumstances in which damages are to be reduced under the Act. Clause 11 sets out the application of the Part.

6.4 _Ż Part 3 - General amendments

Clause 19 amends the functions of the Commission to include the commercial exploitation of knowledge and expertise in compensation schemes and scheme administration. The Committee notes that this allows the Commission to market its services outside Victoria, including the extensive intellectual property developed by the Commission as per clause 21.

Clause 22 substitutes new provisions relating to the appointment of the Board of Management. The Board is to consist of not less than 4 and no more than 9 Directors appointed by the Governor in Council on the nomination of the Minister. Subsection (4) provides that the Minister may direct the Commission to appoint a person, other than a Director to be the Chief Executive Officer of the Commission.

Clause 24 substitutes new sections 20 and 21 which relate to the proceedings of the Board and the disclosure of pecuniary interests. Clause 32 amends section 47 to allow a person to apply to the Administrative Appeals Tribunal to have a decision of the Commission reviewed in the case of a decision that a worker's degree of impairment did not relate to a transport accident or that the worker's degree of impairment is less than 30 per cent.

Clause 33 amends section 48 which relates to the payment by the Commission of impairment benefits and annuities. It provides that the Commission is not liable to make impairment payments where payments have already been made in respect of sections 49, 50 or 51, (ie: Loss of Earning Capacity - "LOEC") Sections 49 and 50 are also amended so that LOEC payments are not reduced by the amount of the impairment annuity.

Clause 34 inserts a new section 50A to provide for consideration of a person's future employment after an accident when determining "loss of earning capacity". Clause 35 amends section 53 of the Act which relates to the cessation of loss of earnings payments. It clarifies that weekly payments can continue where a final determination of impairment has not been made within 3 years after a transport accident, but where the final determination is likely to be 50% or more. Clause 36 amends section 60 of the Act to require the Commission to pay the reasonable costs incurred by a person to employ under certain conditions an authorised person to provide either housekeeping, child care, domestic or nursing services. The amount payable to the carer remains the equivalent to average weekly earnings. Clause 38 inserts a new subsection (6) which relates to indexation.

Clause 41 substitutes sections 96 and 97 to enable the Commission to be sued in all cases involving unidentified or uninsured vehicles. Clause 42 amends section 104 which relates to indemnities by third parties. Clause 50 inserts new section 126A which sets out the application of Legal Professional Privilege. The Committee notes the comments in the Second Reading Speech:-

"A further provision makes clear that TAC is entitled to claim legal professional privilege on documents relating to anticipated legal proceedings in circumstances where a private sector insurer would have been able to claim similar privilege, thus assisting in the prevention of fraudulent claims."

Clause 53 rewords the old secrecy provisions and sets out the penalties for breaching the Act. Clause 54 gives the Governor in Council the power to make regulations with respect to the determination of the degree of impairment suffered by a person.

6.5 _Ż Part 4 - Amendments to other Acts

Clauses 56 to 64 make various amendments to other Acts.

THERAPEUTIC GOODS (VICTORIA) BILL

7.1

This Bill was introduced into the Legislative Assembly on 5 October 1994 by The Honourable Marie Tehan MP with The Honourable Phil Gude MP.

7.2

The purpose of the Bill is to establish model legislation to complement the Commonwealth's regulation of the quality, safety and efficacy of therapeutic goods manufactured for supply and use in Australia.

7.3 _Ż Part 1

Clause 3 sets out the various definitions. The definition of "therapeutic goods" is detailed. However for a more common sense understanding of the term, the Committee notes the comments in the Second Reading Speech:-

"What are Therapeutic goods? Therapeutic goods are products for use in the prevention, diagnosis or treatment of diseases and other bodily conditions or which can be taken to be for such use through advertising and other means. The spectrum of products represented to be for therapeutic use ranges from vitamin supplements sold over the counter in health food shops and self-selected at supermarkets, to sterile dressings, to prescription only drugs and experimental drugs."

Clause 7 provides that the Chief General Manager may authorise certain persons to exercise powers under specified sections of the Bill. Clause 8 provides that the Secretary may authorise in writing approval to a person to supply specified therapeutic goods.

7.4
Section 4D(a)(iii) Makes rights, freedoms or obligations dependent upon non- reviewable administrative decisions
Section 4D(a)(iv) Inappropriately delegates legislative power
Section 4D(a)(v) Insufficiently subjects the exercise of legislative power to parliamentary scrutiny

Clause 9 gives the Minister the power to exempt any person or class of persons by Order published in the Government Gazette.

In its current form, Clause 9 may contravene sections 4D(a)(iii)(iv) and (v) of the Parliamentary Committees Act 1968. The Committee has written to the Minister suggesting that the exemption for any person or any class of goods from any part of the Act should be done by way of regulation as is the case with section 34 of the corresponding Commonwealth legislation.

Clause 11 provides that the Secretary may request certain information, by notice in writing and sets out the penalty for failure to comply with the section.

7.5 _Ż Part 2 - Standards

Clause 12 provides that a person must comply with the standards in the Act and sets out the penalty for failure to comply with the Act.

7.6 _Ż Part 3 - Australian Register of Therapeutic Goods

Clauses 14 to 19 set out the various offences and the penalties under the Act. Clause 20 provides that an application for registration or listing of therapeutic goods must be made in accordance with the section and accompanied by the prescribed fee. Clause 21 governs applications for registration. Note that pursuant to subclause (2)(d), an applicant for registration may be required to give information under section 35 consisting of individual patient data in relation to the goods. "Individual patient data" means information derived from clinical trial, relating to individuals before, during and after the administration of the goods to those individuals, including but not limited to demographic, biochemical and haematological information.

The Committee has written to the Minister requesting comment regarding the privacy aspect of clause 21.

Clause 26 sets out the circumstances where an evaluation which is not completed may be treated as having been refused by the Secretary. Clause 27 sets out the standards to be used in the evaluation of therapeutic goods. Clause 28 sets out the grounds on which listing of therapeutic goods may be refused. Clause 29 provides that a unique registration or listing number is assigned to goods which are entered in the Register.

Clause 30 provides that the Secretary may impose written conditions on the listing of goods. Authorised persons may enter premises at any reasonable time for the purposes of inspecting goods and may copy any relevant documents relating to the goods. Clause 34 gives the Secretary the power to cancel in writing the registration or listing on specified grounds. The person must be given a reasonable opportunity to make submissions in relation to the proposed action and the Secretary must take the submissions into account.

Clause 35 provides that the Secretary may by notice in writing require information in respect of the matters listed. The penalty for failure to comply with the section is set out. Clause 36 sets out the procedures for the inspection and variation of the Register. Pursuant to clause 37 the Secretary must publish a list of the therapeutic goods included in the Register at least every 12 months.

7.7 _Ż Part 4 - Manufacturing of therapeutic goods

Clause 38 sets out the offences and penalties relating to manufacturing and licences. Clauses 39 and 40 set out the procedures for the application and granting of manufacturing licences. Clause 42 provides that a licence may be granted subject to conditions. Authorised persons may enter premises at a reasonable time for the purposes of inspecting therapeutic goods and the premises themselves. Authorised persons may take samples of goods and require persons to answer questions in relation to the procedures and practices carried out at the premises.

Clause 43 sets out the grounds on which a licence may be suspended or revoked. The Secretary must give the holder of the licence, notice of his or her intention. The holder is given a reasonable time to make submissions. The Secretary must take account of the submissions before making a decision.

7.8 _Ż Part 5 - Licences to supply by wholesale

Clause 46 sets out the offences relating to the supply of therapeutic goods by wholesale and licences. Clauses 47 and 48 set out the procedures for the application and granting of wholesale licences. Clause 51 provides that the wholesale licence may be granted subject to conditions. Authorised persons may enter premises at a reasonable time for the purposes of inspection. Authorised persons may take samples of goods, photographs, copy documents and require persons to answer questions in relation to the procedures and practices carried out at the premises. Clause 52 sets out the grounds on which a licence may be suspended or revoked. The Secretary must give the holder of the licence, notice of his or her intention. The holder is given a reasonable time to make submissions. The Secretary must take account of the submissions before making a decision. Particulars of the decision must be published in the Government Gazette as soon as practicable after the decision is made.

7.9 _Ż Part 6 - Payment of charges

Clauses 54 to 56 set out what charges must be paid by whom, the time for payment and the recovery of the charges by the Commonwealth.

7.10 _Ż Part 7 - Miscellaneous provisions

Clause 57 provides that authorised persons may enter premises for the purpose of finding out whether there is compliance with the requirements of the Act. The occupier of the premises must consent to the entry or a warrant must be obtained under section 60, ie: from the Magistrates' Court. Note that the provisions in this Part differ from the entry procedures in relation to the granting of licences. Clause 58 sets out the procedures in relation to the entry and search of premises. Clause 59 sets out the general powers of authorised persons in relation to premises.

Clause 60 provides for the application to the Magistrates' Court of a warrant. The magistrate must be satisfied on oath as to the necessity for a warrant. Clause 61 sets out the offences related to warrants. Pursuant to clause 62 authorised persons must carry identity cards. Clause 66 sets out the evidence required to establish the state of mind by directors, servant and agents of corporations.

Clause 68 provides that the Secretary may delegate any of his or her powers to any persons to whom the Secretary may delegate under section 57 of the Commonwealth Act, ie: to an officer of the Department, the officer of another Department or an authority which has functions in relation to therapeutic goods. The Committee notes that the power of delegation is limited to specific officers or authorities.

Clause 70 provides that all "decisions" which are made by the Secretary or his or her delegate under sections 8, 12, Part 3 and Part 4 may be reviewed by the Commonwealth Administrative Appeals Tribunal. Other "decisions" made by the Chief General Manager under Part 5 may be reviewed by the Administrative Appeals Tribunal of Victoria. Clause 72 gives the Governor in Council the power to make regulations in respect of various matters under the Act.

7.11 _Ż Part 8 - Consequential amendments and transitional provisions

Clauses 73 to 77 are transitional and consequential provisions.

The Committee makes no further comment.

VALUATION OF LAND (AMENDMENT) BILL

8.1

This Bill was introduced into the Legislative Assembly on 5 October 1994 by The Honourable Ian Smith MP with The Honourable Alan Stockdale MP.

8.2

This Bill amends the Valuation of Land Act 1960, the Administrative Appeals Tribunal Act 1984, the Local Government Act 1989 and other Acts. Its purposes are to:-

abolish the valuers registration system, ie: the Valuers Qualification Board and the existing system of occupational registration for valuers;
abolish the Municipal Valuation Fees Committee;
enable various fees to be set by the Valuer-General;
create a Land Valuation division of the Administrative Appeals Tribunal;

8.3 _Ż Part 2 - General amendments to the Valuation of Land Act 1960

Clause 3 abolishes the system of registering valuers. It removes the requirement for the Valuer-General and Deputy Valuer-General to be "registered valuers". Clause 4 amends various definitions. In particular it expands the definition of "farm land".

8.4
Section 4D(a)(iii)Makes rights, freedoms or obligations dependent upon non-reviewable administrative decisions
Section 4D(a)(iv)Inappropriately delegates legislative power
Section 4D(a)(v)Insufficiently subjects the exercise of legislative power to parliamentary scrutiny

Clause 5 enables the Valuer-General to set fees rather than prescribe them by regulation.

In its current form Clause 5 may contravene sections 4D(a)(iii)(iv) and (v) of the Parliamentary Committees Act 1968. The Committee has written to the Minister requesting his advice as to why the fee setting which relates to the provision of information as per section 5(2) of the Valuation of Land Act 1960 is not done by way of regulation. The Committee has also suggested that if fees are not set by way of regulation, they should be published in the Government Gazette.

Clause 6 provides that the Valuer-General may request and a valuer must supply any information for the purpose of enabling the Valuer-General to perform his or her duties. Clause 7 provides that a council cannot pay any valuer unless the Valuer-General issues a certificate of satisfactory valuation. Clause 8 abolishes the Municipal Valuation Fees Committee.

8.5 _Ż Part 3 - Land Valuation Division of the Administrative Appeals Tribunal

Clauses 10, 11 and 12 establish the Land Valuation Division of the Administrative Appeals Tribunal. Clause 14 makes consequential amendments to the definitions set out in section 14 regarding appeals against valuations. Clause 15 provides that many provisions of the Administrative Appeals Tribunal Act 1984 do not apply to any disputes or objections with respect to the value of land under this Act. This includes appeals to the Supreme Court. Clause 16 effectively abolishes the Land Valuation Board of Review and the Valuation Board of Review Panel. Appeal is to the Tribunal instead.

Clause 18 inserts a new section 43A which provides that the Tribunal may direct that parties to the appeal must disclose valuation evidence. Clause 19 amends section 47 of the Act which provides that any party to proceedings before the Tribunal may appeal to the Court on a question of law. That right of appeal is preserved but is amended to bring appeal procedures into line with the Administrative Appeals Tribunal Act 1984.

8.6 _Ż Amendments to other Acts

Clauses 19 and 20 changes references and makes the same amendments to the Land Acquisition and Compensation Act 1986. Clause 22 inserts a new section 80A which provides that many of the provisions of the Administrative Appeals Tribunal Act 1984 do not apply. A separate right of appeal is set out in section 102 of the Land Acquisition and Compensation Act 1986. Clause 23 clarifies those appeal procedures.

Clause 24 makes the relevant amendments to the Gift Duty Act 1971. Clause 25 makes the relevant amendments to the Health Services Act 1988. Clause 26 makes the relevant amendments to the Land Tax Act 1958. Clause 27 makes the relevant amendments to the Local Government Act 1989. Clause 28 makes the relevant amendments to the Mineral Resources Development Act 1990. Clause 29 makes the relevant amendments to the Probate Duty Act 1962. Clause 30 makes the relevant amendments to the Stamps Act 1958. Clause 31 makes the relevant amendments to the Water Act 1989.

Clause 32 provides that existing members of the Land Valuations Boards of Review and Panel cease to hold office and that the senior full-time chairman of the Land Valuations Boards of Review may be re-appointed. Clause 33 makes provision for procedures already on foot.

8.7 _Ż Miscellaneous amendments

Clauses 35 and 36 make consequential amendments as a result of the abolition of the system of registering valuers. Clause 37 is a transitional provision. Clauses 38 and 39 are statute law revision provisions.

Committee Room
17 October 1994