ALERT DIGEST 9 of 1994
Part 3
INTELLECTUALLY DISABLED PERSONS’ SERVICES (AMENDMENT) BILL
6.1
This Bill was introduced into the Legislative Assembly on 14 September 1994 by the Honourable Michael John MP with the Honourable Phil Gude.
6.2
This Bill makes miscellaneous amendments to the Intellectually Disabled Persons’ Services Act 1986 to improve its overall effectiveness and clarity.
6.2
Clause 4 clarifies the definition of "intellectual disability".
Clause 5 inserts an additional statement of principles into the objects of the Act.
Clause 6 amends section 7 to include a power to defer an assessment of eligibility for a period of up to three months.
6.3
Section 8 of the Act governs the actual assessment of intellectual disability. Clause 7 substitutes new sections 8 and 8A. The new sections 8 specify the interpretation of results that must be followed where standardised measurements of intelligence and adaptive behaviour are used. Where such tests are inconclusive, then pursuant to subclause (2)(iii) of section 8, the Secretary may take into account other indicators of general intellectual functioning.
However the Secretary is not required to use a standardised measurement in the assessment of intellectual disability. The Committee notes the comments in the Second Reading Speech that the amendments "will not in any way change the existing assessment procedures followed by the Secretary."
Clause 8 amends section 10 to give an eligible person who does not receive services the right to formally instruct their guardian to refuse a mandatory review of a general service plan if the eligible person is not currently receiving services under the Act. The Committee notes that the eligible person can request a general service plan at a later time if they wish to resume services.
Clause 9 inserts a new section 12A which clarifies the application of the Act to former clients of the Office of Intellectual Disability immediately before 1 October 1987.
Clause 10 inserts new sections 12B and 12C into the Act. New section 12B provides for the reassessment of the eligibility of a person who is entitled to receive services. New section 12C provides that a person who has previously been assessed as not being intellectually disabled may be re-assessed if the Secretary believes on reasonable grounds that new facts or circumstances have arisen.
6.4
Clause 11 inserts new confidentiality provisions. Clause 12 inserts a new section 16A which provides that former clients of the Office of Intellectual Disability Services who have not been in receipt of services for a continuous period of two years are only entitled to receive services again if they undergo an assessment of eligibility in accordance with section 8.
Clause 14 amends section 33 to provide that all proceedings before the Intellectual Disability Review Panel are to be open to the public. The hearing or part of a hearing may be closed on the application of a party or a person affected with a direct interest.
Clause 17 amends section 52 to provide that a person may apply to the Secretary for a review of the decision. This does not affect the right of a person to apply to the Intellectual Disability Review Panel for a review of a decision.
Clause 18 contains transitional provisions.
The Committee makes no further comment.
AGRICULTURAL AND VETERINARY CHEMICALS (VICTORIA) BILL
7.1
This Bill was introduced into the Legislative Assembly on 7 September 1994 by The Honourable Bill McGrath MP with The Honourable Pat McNamara MP.
7.2
The main purpose of this Bill is to enable the National Registration Scheme for Agricultural and Veterinary Chemicals to operate in Victoria. By way of background, the registration of chemicals is controlled by each State. The National Registration Scheme will replace the separate schemes for evaluating and registering chemicals existing in each individual State. The Bill will apply the "Agvet Code" as set out in the Commonwealth Agricultural and Veterinary Chemicals Code Act 1994. The legislative package provides for the National Registration Authority ("NRA") to control agricultural and veterinary chemicals up to, and including, the point of sale. Control of use beyond the point of sale will remain a State responsibility. There is widespread support for the National Regulatory system from the chemical and rural industries and from State and national regulatory authorities.
7.3 ¯ Part 1
"Agvet Code" means the provisions applying because of section 5, ie: the Commonwealth Agricultural and Veterinary Chemicals Code Act 1994.
"NRA" means the National Registration Authority for Agricultural and Veterinary Chemicals established by the Agricultural and Veterinary Chemicals (Administration) Act.
7.4 ¯ Part 2 - The Agvet Code and the Agvet Regulations
Clauses 5 and 6 set out the application of the Agvet Code and the Agvet Regulations.
Clause 8 provides that certain Commonwealth criminal laws apply as laws of Victoria in relation to offences against the Agvet Code or the Agvet Regulations. The offences include aiding and abetting, accessories, incitement, attempts or conspiracy under the Commonwealth Crimes Act 1914.
7.5 ¯ Part 3
Clause 9 provides for the recognition, for the purposes of the law of Victoria, of the Agvet Codes and Agvet Regulations which apply as laws in other jurisdictions. Clause 10 clarifies the references to the Agvet Code and Agvet Regulations in various instruments.
7.6 ¯ Part 4
Clause 13 provides that the Crown is immune from the prosecution of any offence either under this Act or the Agvet Code. This means therefore that the Commonwealth must be prosecuted for any offence against the Code and is in keeping with the objects expressed in Part 5. However note clause 14 which states that if the provision of the law of another jurisdiction binds the Crown, the Crown is still subject to that provision despite any prerogative right or privilege.
7.7 ¯ Part 5 - Application of Commonwealth Administrative laws
The object of Part 5 is to ensure that the Agvet Code in Victoria and the Agvet Code of each jurisdiction are administered on a uniform basis. Clause 16 provides that the Commonwealth administrative laws apply to Victoria in respect of the Agvet Code. The provisions of the Code do not affect the operation of the Commonwealth Freedom of Information Act 1982. Clause 17 confers the relevant functions and powers on Commonwealth officers and authorities.
7.8 ¯ Part 6
Clause 19 gives the Federal Court jurisdiction to hear all civil matters arising in the applicable provisions in Victoria.
7.9 ¯ Part 7 - The National Registration Authority for Agricultural and Veterinary Chemicals
Clause 21 sets out the functions and powers of the NRA. In particular, it may enter into contracts, acquire, hold and dispose of real and personal property, occupy;use and control any land or building held under a lease by the Commonwealth or appoint attorneys and agents.
Clause 24 gives the Commonwealth Minister the power to give directions in relation to the functions and powers of the NRA in exceptional circumstances.
7.10 ¯ Part 8
Clause 27 provides that the power of delegation of the Commonwealth Minister under the Commonwealth Agricultural and Veterinary Chemicals (Administration) Act 1992 extends to powers conferred on the Commonwealth Minister under this Act or the Agvet Code of Victoria.
Clause 28 confers certain powers on State officers to perform the functions of inspectors for the purposes of a particular law.
Clause 29 provides that all fees, taxes or moneys ordered to be payed by a person must be payed to the Commonwealth. Clause 30 authorises the previous registering authority to give any relevant documents or substances to the NRA. Clause 32 gives the Governor in Council the power to make regulations. Clause 33 declares certain laws to be eligible laws in connection with the permit system under the Agvet Code of Victoria.
7.11 ¯ Part 9
Clause 34 provides for the imposition of any fees or taxes that the regulations prescribe.
7.12 ¯ Part 10
Clause 35 confers the powers to prosecute offences and institute proceedings in both indictable and summary offences against the Agvet Code or Agvet Regulations on the Commonwealth Director of Public Prosecutions.
7.13 ¯ Part 11
Clause 36 provides that notwithstanding the Agvet Code or Agvet Regulations, the regulations may make provision for a specified State law to have effect. The Committee notes the comments in the Second Reading Speech:-
"Although the proposed Bill applies the Agvet Code as a law of Victoria it provides a mechanism that will enable specified laws of the State to have effect despite the Agvet Code. The Agvet Code has been specifically designed to operate without conflict with other current State laws. However, this provision allows Victoria a method of problem solving should the need arise. It is important to note that to date, detailed scrutiny of the Agvet Code has revealed no overlap or laws within Victoria."
Note that the regulation may have a retrospective effect but pursuant to subclauses (4)(a) and (b) does not operate in a prejudicial manner to any persons' rights existing before the date of its publication. Nor can it operate to impose liabilities on any person, other than the State or an authority in respect of anything done or omitted to be done before the date of the publication. The Committee notes the possible retrospective effect and makes no further comment.
7.14 ¯ Part 12
Part 12 makes various amendments to the Agricultural and Veterinary Chemicals Act 1992.
Clause 40 inserts new definitions and repeals other sections. Clause 43 substitutes a new Part 2 which sets out the offences relating to the use of unregistered chemical products. Clause 44 sets out the offences involving labelling requirements.
7.15 ¯ Variation of section 85 of the Constitution Act 1975 (section 4D(b)(i)(ii) and (iii) of the Parliamentary Committees Act 1968)
Clause 31(4) 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 any action, suit or proceeding referred to in subsection (1).
Clause 31(1) provides that the State or a person who is a co-ordinator of the Victorian jurisdiction cannot be sued for any loss or injury arising as a result of the handling of chemical substances, the carrying out of a step in the manufacture of a chemical product or the inability to use a chemical product in a particular manner.
Clause 31(2) provides that if a suit is brought against a person responsible for the manufacture, handling or supply of a particular chemical product, it is not open to that person to defend the action by claiming that the NRA has approved, registered or given an exemption to the product in its' manufacture.
The Committee notes the comments in the Second Reading Speech:-
"Clause 31(4) of the Bill is intended to alter or vary section 85 of the Constitution Act 1975 to the extent necessary to prevent the bringing before the Supreme Court of any action, suit or proceeding referred to in clause 31(1). Clause 31(1) in effect provides that no action, suit or other proceeding for damages lies against Victoria or its responsible officer as a result of certain matters arising from the administration and operation of the National Registration Scheme. The reason for preventing the bringing of these proceedings is to protect the State from potential liabilities arising out of the operation of the scheme at a national level and its administration by the National Registration Authority."
The Committee accepts the Minister's explanation and reports that the provision is appropriate and desirable in all the circumstances.
