ALERT DIGEST 14 of 1994

Part 10

30.1

This Bill was introduced into the Legislative Assembly on 10 November 1994 by The Honourable Alan Brown MP with The Honourable Phil Gude MP.

30.2

The purposes of this Bill are to establish the Melbourne City Link Authority and to facilitate the project for the development of the Southern Link and Western Link.

30.3

Part 2 establishes the Melbourne City Link Authority. The Authority is subject to the general direction and control of the Minister. Clauses 9 - 15 provide for the appointment of the members and the proceedings and conduct of the Authority. Clause 18 provides for the appointment of a Chief Executive Officer. Clauses 19 and 20 set out its powers and functions.

Clause 21 gives the Authority the power to delegate to a member or to the Chief Executive Officer or with the approval of the Minister any power of the Authority. Clauses 22 - 24 set out the financial powers.

30.4

Clause 25 provides that an agreement must include matters relating to the matters set out in Schedule 1. The Committee has written to the Minister in respect of the delegation of power referred to in clause (2)(h) of Schedule 1 which contains matters which may be included in an agreement.

Pursuant to clause 26 the Minister for Planning may approve amendments to any planning scheme to facilitate the Project. The amendment may also impose any conditions of the development and use of the land for the purposes of the Project and provide that no permit is required. The Committee is of the view that the provision may contravene section 4D(a)(iv) in that it inappropriately delegates legislative power. The Committee has written to the Minister requesting his advice as to the purpose, need for and effect of the provision.

Clause 28 sets out the Minister's powers in relation to unreserved Crown land. Clause 29 provides that the Minister may exempt any registered land or building from the operation of the Historic Buildings Act 1981. Clause 30 provides that the Environment Effects Act 1978 does not apply to any works forming part of the Project. Clause 31 provides for the surrender of divesting of land to the Authority. This is done by Order of the Governor in Council published in the Government Gazette.

Part 4 contains general provisions. Clause 36 is the regulation making power. Clause 37 makes consequential amendments.

The Committee makes no further comment.

CASINO (MANAGEMENT AGREEMENT) (AMENDMENT) BILL

31.1

This Bill was introduced into the Legislative Assembly on 10 November 1994 by The Honourable Jan Wade MP with The Honourable Phil Gude MP.

31.2

The Casino (Management Agreement) Act 1993 was passed in 1993 ratifying the management agreement between the State and Crown Casino Ltd, the casino operator. Section 15 of the Casino Control Act 1991 provides that the agreement may be varied by the parties and that any variation must be ratified by the Parliament before coming into operation. This Bill amends the Casino (Management Agreement) Act 1993 to ratify a deed of variation to the management agreement.

31.3

Clause 5 inserts a new section 6A into the Act to provide for the ratification of the deed of variation. Clause 6 modifies section 7 of the Act which provides for the Management Agreement to prevail if it is inconsistent with the Principal Act. The Deed of Variation shares the same priority.

Clause 7 inserts the Deed of Variation as Schedule 2 to the Principal Act. Clause (j) of the Deed which substitutes a new clause 17 governs the payment to the State of liquidated damages. The Committee notes the comments in the Second Reading Speech:-

"Formerly, liquidated damages were only to be imposed upon the Crown Casino Limited in the event that the Melbourne Casino (that is, the gaming area) was not opened within the specified time. There were no sanctions if the Casino was opened but the balance of the works on the site were not completed.

Due to the increased significance of hotel works and the generalised entertainment focus of the Complex, it has been determined that separate liquidated damages should apply in the circumstances where the total Complex is not complete even if the Casino itself is operating.

There is no change to the provision that damages will be levied at $50,000 per day if the Casino is not opened and functioning by the Completion Date for the contract. However, in the event that the Casino is operating but the balance of the Complex is not complete by the Completion Date, liquidated damages will be levied at the rate of $5,500 per day through to completion of the Complex."

The Committee makes no further comment.

LIVESTOCK DISEASE CONTROL BILL

32.1

This Bill was introduced into the Legislative Assembly on 10 November 1994 by The Honourable Bill McGrath MP with The Honourable Phil Gude MP.

32.2

This Bill consolidates five Acts about animal disease control into one piece of legislation. It also:-

provides for the cattle and apicultural industries to contribute funding to industry initiated regulatory activities;
implements mutual recognition agreements by deregistering the partially regulated occupation of artificial inseminators;
implements national uniform recommendations of 1989 on complementary legislation for the control of exotic animal diseases;
provides for very significant reform of provisions for cattle and bee compensation and regulation of the artificial breeding industry;
provides for specified animal identification procedures and disease reporting requirements.

32.2

Part 1 contains preliminary provisions. Part 2 contains provisions which apply generally to diseases. It sets out the responsibilities of owners and others. The owner of any livestock destroyed pursuant to clause 14 is not entitled to compensation except as expressly provided for in Part 5. This is discussed later at 32.3.

Part 3 contains provisions which relate to exotic diseases. Clause 36 provides that the Minister may order the destruction of any premises (other than a dwelling) or vehicle which the Minister reasonable suspects to be infected with an exotic disease and which cannot be effectively disinfected. The payment of compensation to persons affected by orders under these provisions is set out in Part 5 at clauses 62 and 63 and discussed at 32.3.

Part 4 makes provision for particular livestock including pigs, sewage farm cattle and pigs, chickens, dairying animals, artificially bred livestock and bees. Pursuant to clause 55 the sale of semen is prohibited except from approved sires. Any person aggrieved by a decision of the Secretary not to approve a sire or to cancel the approval of a sire may within 14 days appeal to the Minister.

32.3 _Ż Compensation

Part 5 sets out the compensation provisions. Clause 59 establishes the Exotic Diseases Fund out of which compensation is paid. Clause 63 sets out the compensation which is payable to the owner for the destruction of premises, livestock, fodder, fittings etc. The amount of compensation is determined by the market value at the time of the item destroyed. Clause 64 sets out the circumstances in which the amount of compensation may be reduced. This is done by instrument in writing at the direction of the Minister. Clause 65 provides that the owner may apply to the Administrative Appeals Tribunal for a review of the Minister's decision in this instance.

Clause 66 establishes the Bees Compensation Fund. Clause 69 provides for the compensation in the event of the destruction of any bees in accordance with the Act. Subclause (3) sets out how compensation is to be calculated. In the case of a queen bee, the compensation payable is the whole of the value of the bee at the time of destruction. In the case of the destruction of any other bee, it is no more than two thirds of the value of the bees at the time of destruction. Any claim by one owner cannot exceed $5000.

Clause 70 establishes the Apicultural Industry Advisory Committee. Its functions are to advise the Minister about the diseases in respect of which compensation is payable under that Division. Clause 71 establishes the Cattle Compensation Fund out of which compensation is payable. Clause 74 sets out the amount of compensation which is payable. Clause 75 sets out the circumstances when compensation is payable. Clause 76 sets out the circumstances when no compensation is payable.

Clause 80 establishes the Swine Compensation Fund. Clauses 83, 84 and 85 govern the payment of compensation. Clause 87 establishes the Swine Industry Projects Advisory Committee.

Clause 88 is the general provision which relates to the non-payment of compensation. The owner must apply for compensation within time limits. Clause 89 provides that there is no compensation for loss of profits or any loss caused by a breach of a contract. Clause 90 provides that the valuation of any livestock etc is to be determined by agreement between the owner and in the case of infection or contamination by an exotic disease a person nominated by the Minister; in the case of infection or contamination by any other disease, the inspector who ordered the destruction of the livestock. If an agreement cannot be reached, the value must be determined by a person nominated by the Minister in the case of an exotic disease or a person nominated by the Secretary in the case of any other disease.

32.4 _Ż Stamp Duty, Administration,

Part 6 governs the payment of stamp duty. Part 7 contains administrative provisions. Application must be made to the Secretary for the grant or renewal of a licence or registration under the Act. A person aggrieved by a decision of the Secretary may apply to the Administrative Appeals Tribunal for review of that decision.

Clause 102 provides that the Minister may by instrument delegate to any person or class of persons employed in the administration of the Act any power of the Minister other than those under sections 26, 29 and 104. Clause 103 provides that the Secretary may by instrument delegate to any person or class of persons employed in the administration of the Act any power of the Secretary. The Committee notes that whilst the provision is limited to those classes of persons who are employed in the administration of the Act, it has written to the Minister seeking clarification as to whether that group should be further limited.

32.5 _Ż Enforcement

Part 8 sets out the enforcement powers. Clause 105(2) provides that no proceedings for an injunction may be instituted against the Minister or the Secretary to prevent any action taken in relation to or in consequence of an outbreak or suspected outbreak of an exotic disease. This is discussed later at 32.6. Clause 106 provides that persons assisting an inspector in the exercise of a power under the Act are not personally liable. This is discussed later at 32.6.

Clause 109 sets out the general powers of inspectors. Inspectors may enter and search any land, vehicle or place or any premises other than residences. Clause 116 sets out the additional powers of inspectors for exotic diseases. Under this provision an inspector if it is necessary to do so use reasonable force to restrain a person who is apparently acting contrary to a requirement of the Act. The Committee notes the comments in the Second Reading Speech:-

"The powers of inspectors contained in the Bill reflect those currently available to inspectors of stock although the powers in respect of exotic diseases are more ordered and extensive than currently applies. Although some of the powers may be seen as excessive to some people, it must be remembered that it is only in unusual circumstances that most of these powers are exercised. On average this turns out to be once in every 10 to 20 years."

Clause 118 gives inspectors the power to obtain information. Clause 119 sets out the power of seizure and destruction. Clause 121 provides that an inspector may apply to a magistrate for a search warrant. Clauses 122 to 125 set out additional powers in respect of bees. Clauses 126 to 131 relate to infringement notices. Clause 137 sets out the various offences in relation to enforcement. Clause 138 limits the jurisdiction of the Supreme Court. This is discussed later at 32.6. Clause 139 is the regulation making power. Part 10, clauses 140 to 143 repeal various Acts, make minor amendments and contain transitional provisions.

32.6_Ż Variation of Section 85 of the Constitution Act 1975 (section 4D(b)(i)(ii) and (iii) of the Parliamentary Committees Act 1968)

Clause 138 declares its intention to alter or vary section 85 of the Constitution Act 1975 to the extent necessary to prevent the Supreme Court entertaining actions of the kind referred to in sections 105(2) and 106. The Committee notes the comments in the Second Reading Speech:-

"Clause 105(2) prevents the institution or continuation of certain proceedings to prevent or restrain the Minister, the Secretary, an inspector or any other person from undertaking disease control activities where an outbreak of an exotic disease has been certified to exist. The reason for preventing the entertaining of these proceedings is to ensure there is no interruption or delay to activities necessarily associated with controlling and eradicating exotic animal diseases.

Interruptions to disease control programs will lead to further spread of disease and more hardship to the livestock industries in general. It will be noted that a person is not prevented from taking out Supreme or other court action to redress grievances against negligent activities undertaken in control programs.

Clause 106 provides that a person is not personally liable for anything done in good faith when assisting an inspector in exercising powers under the Bill. Without the protection provided in this clause, persons may not be willing to assist inspectors in undertaking control activities which are necessary to prevent the introduction or spread of livestock diseases in Victoria. The Government will ensure that it is in a position to meet claims in respect of losses incurred or damage suffered as a result of Acts done in good faith by persons assisting inspectors."

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

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