ALERT DIGEST 4 of 1994

Part 5

11.1

This Bill was introduced into the Legislative Assembly on 30 March 1994 by The Honourable Roger Pescott with The Honourable Phil Gude.

11.2

The main purpose of the Bill is to provide for public safety in relation to prescribed equipment and equipment sites. Its objects are:-

to secure the health and safety of persons in relation to the design, construction, manufacture, installation, erection, alteration, maintenance, repair and use of prescribed equipment;
to protect people generally against risks to health or safety in relation to prescribed equipment;
to eliminate, at the source, risks to health and safety of persons in relation to the design, construction, manufacture, installation, erection, alteration, maintenance, repair and use of prescribed equipment.

11.3

Clause 2 is the commencement clause. The Committee commends the forced commencement procedure.

Clause 5 provides that the Act only applies to the public domain but does allow entry to workplaces where prescribed equipment intended for public use is made.

Part 2, Clauses 7-11 prescribes the duties of those in charge of the manufacture, design and installation of prescribed equipment.

Part 3 relates to the appointment and powers of inspectors. Clause 13 which sets out the powers of the inspectors are identical to powers set out in the old section 39 of the Occupational Health and Safety Act 1985.

Clause 21 sets out the offences in relation to inspections. This provision is identical to the old section 42 in the Occupational Health and Safety Act 1985.

Part 4, Clauses 22-25 relates to improvement and prohibition notices. The provisions are identical to the old sections 43-46 of the Occupational Health and Safety Act 1985.

Part 5, Clauses 26-32 deal with legal proceedings. The provisions are identical to the old sections47-53 of the Occupational Health and Safety Act 1985.

The Committee makes no further comment.

11.4 _Ż Delegation of Minister's power - Inappropriately delegates legislative power (Section 4D(a)(iv) of the Parliamentary Committees Act 1968)

Part 6, Clauses 33-37 are general provisions.

Clause 35 gives the Minister the power to delegate by instrument to "any person any of the powers, authorities, duties or functions of the Minister" under the Act.

The Committee notes that this extremely wide power of delegation is written in precisely the same language as the old section 57(1) of the Occupational Health and Safety Act 1985. However the old section 57 had further sub-sections (2)-(7) which specified that the instrument of delegation must specify the period of timed during which the power of delegation may be exercised; that the power delegated must be performed in accordance with the instrument of delegation.

Whilst the proposed provision mirrors the old section 57(1), it may offend section 4D(iv) of the Parliamentary Committees Act 1968 in that it inappropriately delegates legislative power. In the Committee's view, an appropriate model may be to specify the people who are currently the recipients of delegated powers or to specify precisely which powers are to be delegated.

The Committee has written to the Minister requesting a response.

11.5

Clause 37 gives the power to the Governor-in-Council to prohibit or restrict manufacture, supply or use of prescribed equipment when it is necessary for public safety. The explanatory memorandum states that this is a comparable power to that found in the Dangerous Goods Act 1985.

The Committee makes no further comment.

11.6 _Ż Abolition of scaffolding system

The Committee notes the comment in the Second Reading Notes:-

"In 1991 the Parliament partially dealt with a Bill, also called the Equipment (Public Safety) Bill. The current Equipment (Public Safety) Bill is essentially the same as it's 1991 predecessor with one significant difference. That difference is that there is no provision for the continuation of the scaffolding permit system in the Bill before the House. The 1991 Bill carried some consequential amendments for the Occupational Health and Safety Act which gave municipalities the power to appoint occupational health and safety inspectors with limited power to regulate the scaffolding permit system within their municipality.

It is generally recognised however that the permit system is anachronistic and inefficient and consequently the decision has been made to abolish the scaffolding system in Victoria. This means that the consequential amendments to the Occupational Health and Safety Act are no longer required.

The Bill's primary function is to provide a clear, modern statutory control over the use of potentially dangerous equipment used in the public domain. In doing this an opportunity arises to rationalise the regulatory controls over equipment generally."

The Committee makes no further comment.

NATIONAL CRIME AUTHORITY (STATE PROVISIONS) (AMENDMENT) BILL

12.1

This Bill was introduced into the Legislative Assembly on 30 March 1994 by The Honourable Pat McNamara with The Honourable Phil Gude.

12.2

This purpose of this Bill is to amend the National Crime Authority (State Provisions) Act 1984, to bring it into line with the Commonwealth legislation which has been amended twice. Most of the amendments are procedural.

12.3 _Ż Notation on summonses and notices

Clause 11 inserts sections 18A and 18B into the Principal Act to introduce, under specified circumstances, the placing of a notation on summonses and notices issued by the National Crime Authority which prevents disclosure of information about the notice or summons and related matters to any persons except those specified in the summons or exempted in the Act.

The main exemption to the non disclosure principle is that the person on whom the summons/notice is issued may disclose information in seeking to obtain legal advice or legal aid.

The Committee makes no further comment.

TRANSPORT (FURTHER AMENDMENT) BILL

13.1

This Bill was introduced into the Legislative Assembly on 30 March 1994 by The Honourable Alan Brown with The Honourable Phil Gude.

13.2

This Bill amends the Transport Act 1983 and introduces three transport reforms. More specifically, it:-

ensures that the Department of Transport and the Public Transport Corporation have separate and distinct roles and responsibilities;
establishes a zero blood alcohol requirement for workers;
establishes the Victorian Taxi Directorate.

13.3

Clause 2 is the commencement clause. The Committee commends the forced commencement procedure.

Clause 6 inserts new sections 5 to 6C into the Principal Act. New section 5 provides that the Secretary of the Department of Transport has authority on behalf of the Crown to enter into a contract with any person or body for the provision by that person or body of any transport services. The Secretary may, on behalf of the Crown, enter into a service agreement with the Public Transport Corporation relating to the provision by the Corporation of any transport services.


	Delegation of Secretary’s power under sections 5.6 and 6A

New section 6B provides that the Secretary may with Ministerial approval , delegate the Secretary’s powers under new sections 5,6 and 6A. The Committee notes that specific powers may be delegated, by instrument to a holder of an office or to a person by name.

The Committee makes no further comment.

13.4 _Ż Introduction of zero blood alcohol requirement for workers

Clause 12 inserts a new Division 2 in Part VI of the Principal Act. New section 93(1) sets out definitions and interpretative provisions. It defines "prescribed concentration of alcohol" as meaning a concentration of alcohol present in the blood of a person of 0.00 grams per 100 millilitres of blood or zero alcohol in the blood.

The Committee makes no further comment.

13.5 _Ż Creation of Statutory presumptions

Sub-sections (5) and (6) establish the presumption, if a certain concentration of alcohol is present in the blood at any time within 3 hours after an alleged offence has occurred, that the concentration of alcohol was present in the worker’s blood at the time at which the offence is alleged to have been committed. Sub-sections (5) and (6) also establish the presumption that the concentration of alcohol present within the blood was not due solely to the consumption of alcohol after having carried out safety work.

The presumptions may be rebutted by sworn evidence given by the worker, to show on the balance of probabilities, that that is not the case. The sworn evidence must be corroborated by the material evidence of another person.

Section 94 establishes the offences and penalties for the purposes of the Division. Sub-section 3 sets out the defences able to be put to a court and evidence in relation to the presumptions.

Section 95 provides for preliminary breath tests to be undergone by workers, by authorised workers or police, in the circumstances and subject to the procedures set out in the section.

The Committee makes no further comment.

13.6 _Ż Breath analysis

Section 96 relates to breath analysis. Sub-section (8) provides that the person who required a sample of breath from a worker, may require a worker to allow a legally qualified medical practitioner nominated by the person requiring a blood sample to take from him or her a sample of blood for analysis, if:-

the worker is unable to furnish the required sample of breath on medical grounds or some disability;
the breath analysing instrument is incapable of measuring the concentration of alcohol present in the blood.

Sub-section (13) provides that the worker who is required to furnish a sample of breath for analysis, may request the person making the requirement to arrange for the taking in the presence of a member of the police force of a sample of the worker’s blood for analysis at the worker’s own expense by a legally qualified medical practitioner nominated by the member of the police force.

The Committee makes no further comment.

13.7 _Ż Blood samples to be taken in certain cases - consent of worker assumed if unconscious or unable to communicate

Section 97 provides for blood samples to be required to be taken from a worker in the worker is brought to a designated place for examination or treatment due to an accident. Sub-section (4) provides that a worker who is unconscious or otherwise unable to communicate must be taken to allow the taking of a sample of his or her blood by a doctor at a designated place.

The Committee makes no further comment.

13.8 _Ż Evidentiary provisions - blood tests

Section 98 relates to the evidentiary provisions of blood tests. Sub-sections (3) and (4) provide that certificates in the prescribed form, signed by a legally qualified medical practitioner and an approved analyst, are admissible in evidence and proof of the facts and matters contained in it, in the absence of evidence to the contrary.

The accused who has been served with a copy of the certificate, may, with the leave of the court, require the person who has given the certificate, to attend all subsequent proceedings for cross-examination. The court’s must not exercise its discretion in favour of the accused unless satisfied of the matters set out in sub-section (8)(a)-(b), ie:-

the informant has been given 7 day’s notice of the hearing of the application for leave and the opportunity to make a submission to the court; and
there is a reasonable possibility that the blood referred to in the certificate given by an analyst was not that of the accused;
there is a reasonable possibility that the blood referred to in a certificate given by a legally qualified medical practitioner has become contaminated in such a way that the blood alcohol concentration found on the analysis was higher than it would have been had the blood not been contaminated;
the place at which the sample was taken was not at the relevant time a designated place;
for some other reason, the giving of evidence by the person who gave the certificate or any other person employed at, the place at which the sample of blood was taken would materially assist the court to ascertain the relevant facts.

The Committee makes no further comment.

13.9 _Ż Victorian Taxi Directorate

Clause 13 inserts a new Division 4 into Part VI of the Act. Clause 13 establishes within the Department of Transport, a Victorian Taxi Directorate and sets out the function of the Directorate.

Clause 23 provides for matters to do with safety work infringements. The definition of "safety work infringement" set out in Clause 22 means an offence where the concentration of alcohol in the blood of the worker is less than 0.15 grams per 100 millilitres of blood The definition of "safety work infringement" is largely consistent with drink driving infringements in the Road Safety Act 1986.

The Committee makes no further comment.

13.10 _Ż Supreme Court - Limitation of jurisdiction (section 4D(b)(i) and (ii) of the Parliamentary Committees Act 1968)

Clause 28 inserts a new section 255A into the Act which declares its intention 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 action of the kind referred to in proposed new sections 96(12), 97(7) or 98(10).

These sections relate to the taking of blood samples by legally qualified practitioners in accordance with those section. The Committee notes the comments in the Second Reading Notes:-

"The reason for preventing the bringing of proceedings against medical practitioners who take blood samples under new sections 96,97 and 98 as proposed to be inserted in the Transport Act 1983 by this Bill is that, without such protection, such medical practitioners would be reluctant to take a blood sample from a worker as the provisions allow and this would seriously impede the proper operation of the new legislation."

MINERAL RESOURCES DEVELOPMENT (FURTHER AMENDMENT) BILL

14.1

The Committee reported on this Bill in Alert Digest No. 2. The Committee made the following comments in respect of Clause 2 and Schedule 4:-

"Clause 2 is the commencement clause. It provides that the Act "(except section 6) comes into operation on the day on which it receives the Royal Assent."

The Committee is of the view that the open-ended commencement provision in respect of section 6 may breach section 4D(a)(v) of the Parliamentary Committees Act 1968. The Committee suggests that where such an open-ended commencement provision is inserted into the Bill, the reasons for not limiting the period by which commencement must be made, should be set out in any accompanying explanatory memorandum.

The Committee wrote to the Minister on 17 March 1994.......

Schedule 4

The members of the Committee raised an additional issue in respect of the new Schedule 4. Schedule 4 effectively provides for additional substances to be included as minerals. The members were concerned that the inclusion of substances and the fact that they are found on the surface and not mined, will have the effect of expropriating certain substances lying on the surface to the Crown. The Committee requested clarification of the effect of the Schedule from the Minister."

In a letter dated 21 March 1994 the Minister responded to the Committee:-

"Thankyou for your letter of 17 March 1994 concerning the Committee’s consideration of the above Bill.

In connection with the Committee’s comments concerning the commencement provisions of clause 6. Clause 6 will be deemed to have come into operation on 17 January 1994 on the day the Act receives Royal Assent. This date is the day upon which other related amendments to the Principal Act came into operation. The date is not open-ended in my view; it will occur upon Royal Assent.

The second matter raised by the Committee’s concerns "minerals found on the surface and not mined." The minerals are part of the earth’s crust (section 4 of the Act) and are therefore subject to the operation of the Act for their commercial recovery. The purpose of this amendment is to remove the uncertainty of the status of the substances listed under Schedule 4 and these substances will be treated in exactly the same manner as any other mineral substances."

Committee Room
13 April 1994

A Submission was made to the Committee by Mr Malcolm Barr
Submission dated 8 April 1994 made to the Committee by Mr Sturt Glacken