ALERT DIGEST 14 of 1994

BUSINESS FRANCHISE ACTS (AMENDMENT) BILL

1.1

This Bill was introduced into the Legislative Assembly on 20 October 1994 by The Honourable Alan Stockdale MP with The Honourable Ian Smith MP.

1.2

The purpose of this Bill is to make certain amendments to the Business Franchise Acts.

1.3 _¯ Part 2 - Amendment of Business Franchise (Tobacco) Act 1974

Clause 4 inserts various definitions into the Act. In particular, it clarifies where a sale of tobacco made outside Victoria is to be regarded as having been made in Victoria. Clause 5 clarifies the operation of the provisions of the Business Franchise Acts. Where a provision has both invalid and valid applications, it is the Parliament's intention that a provision has a valid application. The exception to this is unless the particular application is clearly contrary to the context, purposes or objects of the Act. Clause 6 amends sections 7 and 10. A person may apply for a retail tobacconist's licence whether or not the person is resident or carrying on business in Victoria. Sections 10(1)(a) and (1)(b) are amended so that sales of tobacco by a licensed wholesaler which are alleged for re-sale or consumption interstate may be excluded from the tobacco sales, if in the opinion of the Commissioner that tobacco was for re-sale or consumption outside Victoria.

Clause 7 amends section 11B(1)(a) to require the invoices delivered by the wholesalers to be in the prescribed form. Clause 8 inserts a new section 11D into the Act. This provision enables a rebate of fees paid in Victoria on tobacco which is subsequently resold interstate where suitable proof is provided to the Commissioner of licence fees having been paid in another jurisdiction. Clause 9 amends section 15 of the Act to extend the Commissioner's powers to obtain information for the purposes of inquiring into any business of distributing, transporting, selling, purchasing or otherwise dealing with tobacco or petroleum products or inquiring into or ascertaining that person's liability or entitlement under any of the provisions of the Business Franchise Act.

Clause 10 amends to section 15 to provide for the disposal of forfeited tobacco or petroleum products. Clause 11 gives the Commissioner the power to mitigate or remit any penalty payable under section 19A (default assessment) as he or she thinks fit. Clause 12 repeals section 19C of the Act which relates to refunds payable by the Commissioner where the holder of retail tobacconist's licence ceases to carry on the business of retailing tobacco. This amendment removes the right of the holder of retail licence (tobacco or petroleum) to apply for a refund should the licence holder cease retailing during the period for which the licence was granted.

The Committee wrote to the Minister requesting further explanation. The Minister responded by way of a letter dated 22 November 1994. The relevant extract is set out:-

"Thank you for your letter of 17 November 1994 concerning the Committee's scrutiny of the Bill.

In response to your concerns regarding Clause 12:

Section 19C of the Business Franchise (Tobacco) Act currently enables a tobacco or petroleum retailer who has purchased a retail licence for a period to obtain a refund for the unexpired portion of the licence if he does not carry on retailing for the whole of the period.

Unlike the wholesale licence fees, which are based on turnover, the retail licence fee is $10 per month or $50 for an annual licence. The majority of refund applications processed by the State Revenue Office are therefore for amounts of under $20, which is less than the cost to the SRO of processing each application.

It is necessary to balance the interests of licence-holders with the interests of taxpayers generally. On balance, I believe that the very small disadvantage to licence-holders affected by the repeal of Section 19C is warranted to avoid the SRO continuing the excessive cost of processing funds of small amounts."

The Committee is satisfied with the Minister's response.

1.4 _¯ Part 3 - Amendment of Business Franchise (Petroleum Products) Act 1979

Clause 14 amends and inserts various definitions in section 2 of the Act. The definitions of "Petroleum retailing" and "Petroleum wholesaling" are now no longer confined to the selling of petroleum products in Victoria alone. A reference to the sale of petroleum products in certain circumstances is to be regarded as having been made in Victoria. Clause 15 amends sections 5 and 7 of the Act. Applicants may apply for petroleum retailer's licence whether or not the person is resident or carrying on business in Victoria. Sections 7(1)(a) and (1)(b) are amended so that sales of petroleum products by a licensed wholesaler which are alleged for re-sale or consumption interstate may only be excluded from the sales of petroleum products in the relevant period, if in the opinion of the Commissioner those petroleum products were for re-sale or consumption outside Victoria. The former provision enabling the exclusion of such sales from licence fees on the basis that the wholesaler "know or reasonably believes" the petroleum products is for re-sale or consumption interstate is repealed.

Clause 16 inserts a new section 11A which relates to sales to interstate purchasers. This provision enables a rebate of fees paid in Victoria on petroleum product which is subsequently resold interstate where suitable proof is provided to the Commissioner of licence fees having been paid in another jurisdiction.

The Committee makes no further comment.

COURTS (GENERAL AMENDMENT) BILL

2.1

This Bill was introduced into the Legislative Assembly on 9 November 1994 by The Honourable Jan Wade MP with The Honourable Pat McNamara MP.

2.2

This Bill amends the Jurisdiction of Courts (Cross-vesting) Act 1987, the Supreme Court Act 1986, the County Court Act 1958 and the Magistrates' Court Act 1989. Its purposes are:-

• to make further provision in relation to the transfer of special federal matters from the Supreme Court to federal courts;
• to extend the operation of the Jurisdiction of Courts (Cross-vesting) Act 1987 to the Australian Capital Territory;
• to make further provision for reserve judges;
• to make various other amendments to other Acts;

2.3

Clause 5 substitutes a new section 6 which sets out how the Supreme Court must deal with special federal matters. Clause 6 insert new sections 17 and 18 which limit the jurisdiction of the Supreme Court. This is discussed later at 2.4.

Clause 7 inserts new subsections (3A) and (3B) into section 80A of the Constitution Act 1975 which permit the appointment of judges over the age of 70 years to be reserve judges of the Supreme Court. Clause 8 permits the appointment of reserve judges in the County Court.

Clause 9 amends the Juries Act 1967 to provide a trial judge with the discretion to impanel additional jurors if he or she considers that the case is of such a nature that additional jurors are wanted. Clause 10 raises the retirement age of magistrates and acting magistrates from 65 years to 70 years of age. Clause 11 gives the prothonotaries and registrars of the respective Supreme, County and Magistrates' Courts the power to waive fees in cases of financial hardship. Clause 12 amends the Administration and Probate Act 1958 to ensure that the Registrar may charge fees for the delivery of a will.

2.4 _¯ Variation of section 85 of the Constitution Act 1975 (section 4D(b)(i)(ii) and (iii) of the Parliamentary Committees Act 1968

Clause 6 inserts a new clause 17 into the Jurisdiction of Courts (Cross -vesting) Act 1987 which declares its intention to vary section 85 of the Constitution Act 1975 to the extent necessary to require matters for determination in a proceeding pending in the Supreme Court to be transferred to the Federal court or another court in accordance with section 6. The Committee notes the comments in the Second Reading Speech:-

"These amendments (in this Bill) are the result of an agreement of the standing committee of Attorneys-General and all other state jurisdictions have made similar arrangements.

Clause 6 of the Bill inserts a new provision in the Jurisdiction of Courts (Cross-Vesting) Act with the intention of altering or varying section 85 of the Constitution Act 1975. It is necessary to amend the Supreme Court's jurisdiction to give effect to the new provisions in respect of special federal matters agreed to by the Standing Committee of Attorneys-General."

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

CONSTITUTION (AMENDMENT) BILL

3.1

This Bill was introduced into the Legislative Assembly on 9 November 1994 by The Honourable Jeff Kennett MP with The Honourable Pat McNamara MP.

3.2

This Bill amends the Constitution Act 1975, the Interpretation of Legislation Act 1984 and the Constitution Act Amendment Act 1958.

3.3

Clause 4 inserts new sections 6-6D into the Constitution Act 1975. It establishes the offices of the Governor and the Lieutenant-Governor and Administrator. The Committee notes the comments in the Second Reading Speech by way of background:-

"The principal purpose of this Bill is to amend the Victorian Constitution Act 1975 so as to complete the process that resulted in the enactment of the Australia Acts by the Commonwealth and United Kingdom Parliaments in 1986.

The principal effect of those Acts was to sever all of the remaining constitutional links between the states and the United Kingdom government other than their connection with the Crown itself. The changes brought about by those Acts will now be complemented, so far as Victoria is concerned, by legislation enacted by this Parliament whereby the office of Governor and the Executive Council, the State's highest executive organisation will be placed upon an appropriate statutory foundation.

Currently, the office of Governor and the Executive Council owe their existence not to statute, but to letters patent issued without express statutory foundation. The current letters patent were issued by Her Majesty on 14 February 1986 and were expressed to become operative at the same time as the Australia Acts they were designed to:

• revoke the letters patent of 29 October 1900;
• revoke the instructions to the Governor of 20 October 1900;
• establish the office of Governor and the Executive Council;
• define the roles and responsibilities of the Governor, Lieutenant-Governor, Administrator and Governor's deputy;
• define the roles of the Premier and the Executive Council in relation to advising the Governor and;
• continue certain commissions;

The constitutional system of this State was initially established by an Act of the United Kingdom Parliament enacted in 1855. After the passage of 120 years and numerous amending acts, that constitutional system was re-established on the basis of an Act of this Parliament, namely the Constitution Act 1975. The Bill now before the House will complete the patriation of the Victorian constitutional system by replacing the letters patent with statutory provisions enacted by this Parliament.'

Clause 5 inserts new sections 87A-87E which establish the Executive Council of the State of Victoria. Clause 6 makes miscellaneous amendments. Clauses 7 to 9 are transitional provisions. Clause 10 amends section 11 of the Interpretation of Legislation Act 1984 to remove the parts of the section which relate to the reservation of Bills for Royal Assent. Those sections are no longer operative. Clause 11 adds a new provision to validate from 3 March 1986 legislative and subordinate legislative provisions made before that date. The Committee notes the retrospective effect. The Committee notes the comments in the Second Reading Speech:-

"The Australia Acts extended and confirmed the powers of the State parliaments and conferred on those Parliaments all of the legislative powers of the Parliament of the United Kingdom, including the power to make laws inconsistent with the laws of the United Kingdom.

It is clearly appropriate to take the opportunity afforded by the introduction of this Bill, which is framed in response to the Australia Acts to invoke the powers which they confer so as to ensure the validity of all legislative provisions passed and subordinate instruments made before such Acts came into operation."

Clause 12 makes minor amendments and alters the references in the forms of writ in the Fifth and Sixth Schedule.

The Committee makes no further comment.

QUEEN VICTORIA WOMEN'S CENTRE BILL

4.1

This Bill was introduced into the Legislative Assembly on 9 November 1994 by The Honourable Jan Wade MP with The Honourable Pat McNamara MP.

4.2

The purposes of this Bill are to:-

• establish the Queen Victoria Women's Centre Trust;
• to provide for the management, operation and use of the Queen Victoria Women's Centre;
• to provide for the ownership of the Queen Victoria Women's Centre land;

4.3

Clauses 4, 5 and 6 establish the Queen Victoria Women's Centre Trust and set out its functions and powers. Clause 7 provides for the members of the Trust to be appointed by the Governor in Council. Clauses 8 to 14 set out the various provisions which govern the terms and conditions of appointment removal from office, the pecuniary interests of members and the conduct of meetings.

Clause 15 vests the Queen Victoria Women's Centre land in the Trust. The Trust cannot deal with the land without the consent of the Minister. Clauses 16 to 22 set out the various provisions which relate to bank accounts, business plans, the appointment of an administrator and winding up. Clause 23 provides that on the winding up of the Trust, the Women's Centre land is divested from the Trust and vests in the Crown. Clause 24 gives the Registrar of Titles the power to make the necessary amendments to records. Clause 25 is the regulation making power.

The Committee makes no further comment.

MELBOURNE SPORTS AND AQUATIC CENTRE BILL

5.1

This Bill was introduced into the Legislative Assembly on 9 November 1994 by The Honourable Tom Reynolds MP with The Honourable Alan Stockdale MP.

5.2

The purposes of the Bill are to:-

• establish a Melbourne Sports and Aquatic Centre Trust;
• provide for the construction, management and operation of a Melbourne Sports and Aquatic Centre;
• provide for the use and promotion of a Melbourne Sports and Aquatic Centre;
• provide for the use of the Melbourne Sports and Aquatic Centre land.

5.3 _¯ Part 2

Clause 5 establishes the Melbourne Sports and Aquatic Centre Trust. Clauses 6 and 7 set out its functions and powers. Clause 9 provides that the Trust is subject to the general direction and control of the Minister. Clause 10 provides for the members to be appointed by the Governor in Council. Clause 11 sets out the terms and conditions of appointment. Clause 19 gives the chief executive officer or a member of the Trust personal immunity.

Clause 21 gives the Trust the power to delegate by instrument to one or more of its members or to the Chief Executive Officer any function or power. The Committee notes that the power of delegation is limited.

5.4 _¯ Part 3 - Particular powers of the Trust

Clause 22 gives the Trust the power to manage the Centre and land. Clause 23 provides that the Trust may enter into agreements or arrangements with public sector agencies with the consent of the Governor in Council on the recommendation of the Minister. Clause 24 empowers the Committee of Management to enter into a lease with the Trust. It also sets out the various uses of the land which includes gaming recreation or social activities and the erection of building or the carrying out of works. Clause 25 gives the Trust the power to sub-lease the land or any part of it. Clause 26 provides that no compensation is payable in respect of anything done under section 24. This is discussed later at 5.5. Clauses 27 to 30 relate to finances and reporting. Clause 32 is the regulation making power. Clause 33 gives the Trust the power to make by-laws with respect to fees and charges for admission.

5.5 _¯ Variation of section 85 of the Constitution Act 1975 (section 4D(b)(i)(ii) and (iii) of the Parliamentary Committees Act 1968)

Clause 26 provides that no compensation is payable in respect of anything done under section 24. Clause 31 declares its intention to alter or vary section 85 of the Constitution Act 1975 to the extent necessary to prevent the Supreme Court awarding compensation in respect of anything done under or arising out of section 24(1) or because of the granting of a lease to the Trust or the transfer or assignment of any of the Trust's interests under a lease by or under Division 2 of Part 3. The Committee notes the comments in the Second Reading Speech:-

"The reason for limiting the jurisdiction of the Supreme Court is that the Bill allows the committee of management at Albert Park to grant a lease of the Melbourne Sports and Aquatic Centre land for purposes other than the purposes for which the land is reserved. The Bill also allows the Trust to assign its interests under the lease for those purposes. Any claims for compensation based on the former use of the land could delay or prevent a change in the use or status of Crown land that is for the benefit of the community was a whole. It is in the public interest for the rights on the site to be clarified to allow this major development to be built. This facility will significantly enhance the amenity of the area to park users, local residents and Melburnians generally."

The Committee wrote to the Minister to ensure that there were no private legal interests affected before forming a conclusion on the Section 85 provision. The Minister responded by way of a letter dated 25 November 1994. The relevant extract is set out:-

"I refer to your letter of 23 November, concerning the Melbourne Sports and Aquatic Centre Bill.

This Bill deals with certain Albert Park Land. One of the purposes of this Bill is to deal with the use of the Melbourne Sports and Aquatic Centre land which was permanently reserved by Order in Council dated 21 March, 1876 as a site for a public park. The reservation for this purpose involves public access or public use of that land.

There may have been suggestions in some Victorian cases that members of the public may have a right to compensation if the status of these type of public access or use of reservations is changed. For this reason legislation revoking or otherwise changing the status of reserves includes a no compensation clause and an accompanying clause limiting the jurisdiction of the Supreme Court.

The Bill overrides the reservation of Albert Park land to the extent that it applies to the Melbourne Sports and Aquatic Centre land to allow the land to be used for purposes other than reserved purposes and to allow the land to be leased for those other purposes.

Because the Bill alters the status of the reservation of the land and allows it to be leased for purposes consistent with the new status it was considered necessary that the no compensation and section 85 clauses should be included for similar reasons to those applying in other cases where the reservation of the land is affected.

It should be noted that the Albert Park Land Act 1972 provided a similar scheme for overriding the reservation of Albert Park land and allowing the land to be leased for purposes other than those for which it was reserved. That Act provided a no compensation clause.

You also raised the issue of any private interests currently occupying part of the site intended for development. The clubs concerned, the South Melbourne Districts Sports Club and the Ajax Football and Cricket Clubs have acknowledged that they are required to vacate their respective buildings on the site no later than 6 March 1995.

I trust that this information satisfies any concerns that the Committee may have."

The Committee notes the Minister's response and is of the view that the provision is appropriate and desirable in all the circumstances. However, the Committee notes that these type of provisions are common in Victorian legislation. The Committee will be reviewing this aspect of the section 85 procedure and will report to the Parliament.

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