ALERT DIGEST 14 of 1994
Part 6
VICTORIAN PLANTATIONS CORPORATION (AMENDMENT) BILL
22.1
The Committee reported on this Bill in Alert Digest No. 13 of 1994 on 15 November 1994. The relevant extract is set out:-
"4.4 ¯ Variation of Section 85 of the Constitution Act 1975 (Section 4D(b)(i)(ii) and (iii) of the Parliamentary Committees Act 1968.
Clause 13 provides that no compensation is payable by the Crown in respect of anything done under or arising out of this Act. Clause 14 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 this Act. The Committee notes the comments in the Second Reading Speech:-
"Clause 14 of the Bill provides that it is intended to alter or vary 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 this Act. The reason for preventing the Supreme Court from awarding compensation is as follows:
To enable the Crown to change the status of land to a status more appropriate to its current use, it is necessary to ensure that the land is no longer subject to any interests or rights arising out of the former use, other than those specifically provided for by the principal act. The existence of these interests and rights and claims for compensation based on them could delay or prevent a change in the use or status of the land."
The Committee has written to the Minister to ensure that there are no private legal interests which are adversely affected before forming a conclusion."
The Minister responded by way of a letter dated 18 November 1994. The relevant extract is set out:-
"I refer to your letter of 16 November 1994 concerning clauses 13 and 14 of the above-mentioned Bill and the intention of those clauses to limit the jurisdiction of the Supreme Court in relation to anything done under or arising out of the Act.
Sections 27 and 33 of the Victorian Plantations Corporation Act 1993 prevent the Supreme Court from awarding compensation in respect of anything done under or arising out of the Act. That Act provided for the vesting and divesting of land, revocation of reservations and road closures, in order to facilitate the formal transfer of management of plantations to the Corporation. In order to ensure that those processes were not impeded or delayed by claims for compensation arising out of the former use of the land, the Act contained provisions to limit the jurisdiction of the Supreme Court.
The Victorian Plantations Corporation (Amendment) Bill merely provides for the further vesting and divesting of land to and from the Corporation, to facilitate more efficient management of the plantation estate. Inclusion of a provision in this Bill to limit the jurisdiction of the Supreme Court was considered necessary as it was unclear whether the scope of sections 27 and 33 of the Principal Act would extend to the further vesting and divesting actions provided for by the Bill. I am not aware of any rights which are likely to be infringed by the limitation of the Supreme Court's jurisdiction in the case of the matters provided for by this Bill.
The removal or alteration of land tenure is a decision which properly rests with the Parliament with any beneficial interests taken into account during the development of the legislation. The provisions are required to prevent unnecessary impediments to or delays in, the change of land status and are not intended to unduly interfere with the rights of any private person with an interest in the land."
22.2
The Committee notes the Minister's response. The Committee believes that there is a distinction to be drawn between the Government's understandable and proper concern to ensure clear title and the removal of the right for compensation. The Committee believes that the Government's concern could have been met with a section 85 provision which guaranteed clear title. In these particular circumstances, the Committee is of the view that the proposed section 85 provision is not appropriate and desirable in all the circumstances.
23.1
The Committee reported on the Prostitution Control Bill in Alert Digest No. 13 of 1994 on 15 November 1994. The relevant extract is set out:-
"Clause 10 makes it an offence to live on the earnings of illegal prostitution. Subclauses (3) and (4) set out the defences. The Committee has written to the Attorney-General raising the question of the reverse of the onus of proof in relation to subclause (4)."
The Attorney-General responded by way of a letter dated 21 November 1994. The relevant extract is set out:-
"Clause 10 - Living on the earnings of prostitution
The offence of living on the earnings of prostitution at section 12 of the Prostitution Regulation Act 1986 was not proclaimed by the previous government. Section 10 of the Vagrancy Act 1966 has remained in force but will be repealed by the present Bill.
Section 10 of the Vagrancy Act applies to any person who lives on the earnings of prostitution except those persons who have obtained the appropriate planning permit for a brothel.
The result is that while a businessman who has a brothel planning permit may live on the earnings of prostitution, the members of the family of the prostitute who works in his brothel are committing an offence by doing the same.
Rather than making the law harder on defendants, the reverse onus in clause 10 of the Bill represents an improvement. Family members will now have a chance to exonerate themselves, while operators of illegal prostitution rackets will remain caught by the offence."
23.2
The Committee made the following comments in respect of clause 15 in the Alert Digest. The relevant extract is set out:-
"Clause 15 provides that a person must not be found, without a reasonable excuse, in or entering or leaving an unlicensed brothel."
The Committee was concerned that the provision in its current form may have contravened section 4D(a)(i). The Committee wrote to the Attorney-General requesting her assurance that "reasonable excuse" applies to those persons who are ignorant of the fact that a brothel is unlicensed.
The Attorney-General responded by way of a letter dated 21 November 1994. The relevant extract is set out:-
"Clause 15 - Being in or leaving unlicensed brothel
I cannot agree that this provision trespasses unduly upon rights or freedoms. I do not believe that anyone has the right to participate in an illegal activity. A person who has a reasonable excuse for being on the premises will not be convicted. It may be a reasonable excuse that the defendant did not know there was no licence in force if the defendant's ignorance is reasonable. However if a person suspected that the brothel was illegal and deliberately avoided confirming that suspicion, he or she should not escape conviction."
23.3
The Committee made the following comments in respect of clause 62 in the Alert Digest. The relevant extract is set out:-
"Clause 62 gives the police of or above the rank of inspector the power to enter and inspect licensed premises at any time. Upon the exercise of this power the member of the police force in charge must report to the Prostitution Control Board in the form and manner approved. A search warrant may be issued by a magistrate if he or she is satisfied that there are reasonable grounds for suspecting that a person is carrying on business in contravention of sections 22(1) and 22(4). The Committee notes the comments in the Second Reading Speech:-
"Police will have the right of automatic entry to any licensed operation. They will have the power to obtain search warrants to search premises suspected of offering unlicensed prostitution. There will be a new enforcement power, giving police the right to enter such premises without a warrant outside business hours, if they suspect that the delay in getting a warrant will result in a loss of evidence. Any exercise of this power of entry without a warrant must be notified to the Magistrates' Court and the Board. Evidence obtained in this fashion will be inadmissible without proper grounds for exercising the search power.
This will be an unusual police power. It constitutes an exception to the usual rule that warrants must be obtained for searches of private premises. However illegal brothels and associated organised crime constitute a major concern for the Victorian police. The extreme difficulties associated with enforcing the law against these operations justify the special provisions contained in the Bill."
The Committee raised concerns that clause 62 may contravene section 4D(a)(i) in that such entry may interfere with the business of a licensed operation or interfere with the privacy of those clients. The Committee wrote to the Attorney-General requesting that the provision be amended to ensure that entry onto licensed premises in such circumstances does not unreasonably interfere with either the operation of the business or the privacy of the client. The Attorney-General responded by way of a letter dated 21 November 1994. The relevant extract is set out:-
"Clause 62 - Entry to licensed premises by police
The police right of entry to licensed prostitution services can not limited. Prostitution is a lucrative activity for organised crime and police must be able to constantly monitor licensed premises to ensure that crime does not become involved. This objective is more important than the privacy of brothel clients."
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