ALERT DIGEST 9 of 1994
Part 4
8.1
This Bill was introduced into the Legislative Assembly on 14 September 1994 by The Honourable Phil Gude MP on behalf of The Honourable Pat McNamara MP with The Honourable Marie Tehan MP.
8.2
8.2.1
The Committee held a Public Hearing on 26 September 1994.
The Committee heard evidence from the following witnesses:-
Mr Robert Richter QC appeared on behalf of the Victorian Council of Civil Liberties;
Mr Iain Stewart appeared on behalf of "Save Albert Park";
Mr Jack Hammond appeared on behalf of the Victorian Speed Boat Club(Inc);
Ms Susan Cohen and Mr Damian Murphy appeared on behalf of the Victorian Society of Labor
Lawyers;
The Committee received written submissions or letters from the following:-
Mrs Shirley Scholes;
Australian Civil Liberties Union;
Mr Colin Crawford;
Mr W. Bradbury;
Mr Peter Logan;
Mr William H. Kyme;
Ms Elizabeth Grieb;
Lord Somers Camp and Power House;
Mr Gordon H. Macmillan;
Mr Frederick C. Shillabeer;
Mr Peter Arrowsmith;
Ms Jane Touzeau;
City of Port Phillip;
The Committee wishes to thank all those people who gave evidence and sent written submissions and letters.
8.2.2 ¯ Chairman's Note
In keeping with the practice of the Committee, the draft Alert Digest was sent to the The Honourable Pat McNamara MP, the Minister for Tourism by facsimile on 29 September 1994. This practice has been adopted in order to ensure that the Committee's recommendations can be considered and responded to by the Minister before the tabling of the Alert Digest in the Parliament. The Committee has adopted the practice of including the Minister's responses and comments in the Alert Digest.
The Chairman received a letter by facsimile from the Minister dated 3 October 1994. Extracts of that letter are set out at paragraphs 8.7, 8.8, 8.9, 8.10, 8.12, 8.14, 8.16 and 8.19.
In response to the comments and suggestions made by the Committee, the Minister has indicated that House Amendments will be made in respect of Clauses 30 and 42 of the Bill. The Minister has also responded positively to the Committee's comments and suggestions in respect of Clauses 27, 38 and 49.
On behalf of the Committee the Chairman wishes to thank the Minister for his prompt, positive and thoughtful response.
8.3
The main purposes of the Bill are to establish the Australian Grand Prix Corporation and to facilitate the holding of the Annual Formula One Grand Prix at Albert Park.
8.4 ¯ Part 1
Clause 3 sets out the various definitions of the Act.
"Albert Park" means the land shown on the plan set out in Schedule 1.
"Committee of Management' means the Committee of Management of Albert Park appointed under the Crown Land (Reserves) Act 1978.
"Declared area" is the area declared under section 27 to be the declared area in respect of that year. Pursuant to section 27 the "declared" area is the area declared by the Minister "being part or all of Albert Park specified in the notice together with such other land (if any) surrounded by Albert Part". See 8.7 for further explanation of the effect of section 27 in relation to the "declared area".
"Race period" is the period declared under section 27 which effectively means that the Grand Prix is limited to one week in any one year.
8.5 ¯ Part 2 - Australian Grand Prix Corporation
Clause 7 establishes the Australian Grand Prix Corporation.
Clause 9 provides that the Corporation is subject to the direction and control of the Minister in the performance of its functions and exercise of its powers. The membership of the Corporation consists of between 5 and 9 members appointed by the Governor in Council. Clauses 11 and 12 provide for vacancies, resignations and acting appointments. Clause 13 provides for the disclosure of interests. Clauses 14 to 17 set out procedural formalities.
Clause 18 gives the chief executive officer or a delegate of the Corporation personal immunity for anything done or reasonably done in good faith. Clause 19 provides that the Corporation may appoint a person approved by the Minister as the chief executive officer of the Corporation.
Clause 20 sets out the functions of the Corporation. Clause 21 sets out the powers of the Corporation. The powers listed between (a) to (o) include the power to carry out works at Albert Park.
Clause 22 gives the Corporation the power to delegate any of its powers, in writing, to a member or to the chief executive officer of the Corporation. The Committee notes that this power of delegation is limited. The clause also gives the Corporation the power to delegate to any other person or body in writing, any power of the Corporation, with the approval of the Minister. The Committee notes that this power of delegation is not so limited but must be done so with the approval of the Minister.
Clause 23 requires the Corporation to pay all money received into a banking account. Clause 24 gives the Corporation the power to borrow and invest money.
8.6 ¯ The Business Plan
Clause 25 requires the Corporation to prepare a annual business plan and give a copy to the Minister and the Treasurer. The Plan must include a statement of corporate intent, information on accounting policies, financial statements and information on such other matters as the Minister and the Treasurer directs. The Corporation must consider any comments made by the Minister and the Treasurer and following consultation with the Minister must make any such changes as are agreed to within three months of submitting the Plan.
The Committee notes that as a Corporation, it is subject to the annual reporting requirements under the relevant Companies legislation.
8.7 ¯ Part 3 - Formula One Events
Clause 27 gives the Minister the power to "declare" that "other land (if any) surrounded by Albert Park" constitutes part of the area for the purposes of the Grand Prix provided the appropriate notice is inserted into the Government Gazette. Note that "Albert Park" is defined in clause 3 as the land shown hatched on the plan set out in Schedule 1. The Committee sought clarification from the Department of Arts, Sports and Tourism as to the meaning of "other land (if any) surrounded by Albert Park". The Committee's interpretation is that the "other land surrounded by Albert Park" refers to the small plain area of land shown on the hatched land near Albert Road in Schedule 1. The area is in fact Commonwealth land which is reserved for the army. The Minister may "declare" this area for the purposes of the Grand Prix by way of publication in the Government Gazette.
The Committee wrote to the Minister asking for confirmation of the above and that an explanation be given at the conclusion of the Second Reading Speech.
Works to be performed in the declared area are likely to include the erection of fences etc which are necessary to protect people from harm during the event. Other associated works may include road construction or diversion, the removal, relocation or planting of trees, installation of services, construction of other buildings or facilities whether of a permanent or temporary nature or demolition works or works altering the topography of Albert Park.
The Minister responded to the Committee in a letter dated 3 October 1994. The relevant extract is set out:-
"I confirm that the declared area can only comprise part or all of Albert Park (which is defined in clause 3 to be the area shown hatched in Schedule 1) together with the Commonwealth land reserved for the Army wholly surrounded by the Park."
8.8
Makes rights, freedoms or obligations dependent upon insufficiently defined administrative powers - section 4D(a)(ii)
Makes rights, freedoms or obligations dependent upon non-reviewable administrative decisions - section 4D(a)(iii)
Clause 28 provides that the Corporation must not undertake any works without a licence. The licence is granted by the Committee of Management on such terms and conditions as are specified. The Committee of Management may grant a licence within 7 days. In the event of a dispute, the Minister administering the Act and the Minister administering the Crown Land (Reserves) Act 1978 may grant the licence on such terms and conditions as are specified.
The Committee notes that the Committee of Management is appointed by the Governor in Council pursuant to section 14 of the Crown Land (Reserves) Act 1978. The members of the Corporation are appointed by the Governor in Council pursuant to section 10 of this Bill. The Ministers adjudicate between the two Government bodies in the event of a dispute.
The Committee is of the view that clause 28 may contravene sections 4D(a)(ii) and (iii) of the Parliamentary Committees Act 1968 in that the Ministers' decisions are non-reviewable and there is no independent framework for the granting of any licences. The Committee notes that pursuant to section 15 of the Crown Land (Reserves) Act, the Committee of Management is charged with responsibility for and "shall manage improve maintain and control the land for the purposes for which it is reserved".
The Minister wrote to the Committee on 3 October 1994. The relevant extract is set out:-
"The Digest asserts that the decision of the Ministers is non-reviewable. This comment is misleading in that a range of administrative remedies are available to review such decisions."
Note the discussion and arguments as to the trespass upon rights and freedoms are referred to at clauses 42 and 50, ie: at 8.16 and 8.21 respectively.
8.9
Makes rights, freedoms or obligations dependent upon insufficiently defined administrative powers - section 4D(a)(ii)
Makes rights, freedoms or obligations dependent upon non-reviewable administrative decisions - section 4D(a)(iii)
Clause 29 provides that the Corporation must take reasonable steps to consult with the Committee of Management and persons affected. Pursuant to subsection (a) of clause 29, the Corporation "must take reasonable steps to consult with the Committee of Management and any person having a right of occupation of any part of Albert Park."
The Committee is of the view that the provision may contravene sections 4D(a)(ii) and (iii) in that there is no review of the Corporation's requirement to "take reasonable steps to consult with the Committee of Management and any person having a right of occupation in Albert Park". The Committee notes that the Corporation must consider but is not required to act on any reasonable representations made to it. In the context of non-reviewability of decisions under this clause, this may make rights, freedoms or obligations dependent upon insufficiently defined powers.
The Minister wrote to the Committee on 3 October 1994. The relevant extract is set out:-
"The limitation on rights provided for in this clause mirrors that in the South Australian Act. Its rationale is also explained in the Second Reading Speech".
Note the discussion in relation to the non payment of compensation is referred to at clause 50, ie: at 8.21.
8.10
Trespasses unduly upon rights and freedoms - section 4D(i)
Makes rights, freedoms or obligations dependent upon non-reviewable administrative decisions - section 4D(a)(iii)
Clause 30 gives the Corporation the power to control the declared area in respect of a race period. Pursuant to subclause (3), a person may only carry on business in premises in the declared area to the extent and in accordance with the conditions that the Corporation after consultation with the Committee of Management approves. In the event of a dispute, the Minister makes the final decision.
Subclause (4) suspends the rights and interests of any person, other than the Corporation in relation to the declared area during the race period. The exceptions, those who carry on businesses in accordance with licences granted by the Corporation are set out in subclause(3).
The Committee notes the comments in the Second Reading Speech referring to the South Australian legislation:-
"During the race period which will not exceed 7 days in any one year, as declared by the Minister acting jointly with the Minister administering the Crown Land (Reserves) Act 1978 , the Corporation will be responsible for the management and control of the declared area in line with the position under the South Australian legislation. Also in line with the South Australian legislation, the rights and interests of any other person are suspended in relation to the declared area during the race period.
However, unlike the South Australian legislation, clause 30 of the Bill makes specific provision for businesses in the declared area to continue to operate during the race period subject to reaching agreement with the Corporation, in consultation with the Committee of Management. Any dispute will be resolved by the Minister. The Government envisages that there will be mutual benefits for business in the declared area reaching agreement with the Corporation."
The Committee is of the view that clause 30 may contravene section 4D(a)(i) in that the rights and interests of any person in relation to the declared area are suspended for the race period. However the Committee also notes that those tenants whose rights are suspended may conduct businesses in accordance with conditions approved by the Corporation in consultation with the Committee of Management and that there may be opportunities for greater remuneration for a business conducted in the vicinity of the Grand Prix. The loss of rights of persons who conduct businesses in the declared area may be ameliorated if clause 42 does not apply to them.
The Committee is also of the view that the provision may contravene section 4D(a)(iii) in that the Minister's decision to grant a person a licence in the event of a dispute is non-reviewable.
The Minister wrote to the Committee on 3 October 1994. The relevant extract is set out:-
"The Government is currently drafting a House Amendment that would give businesses affected by this clause a right to claim compensation based on business performance in a normal (not Grand Prix) trading situation. At the same time the Government envisages that it will be in the interests of businesses to operate during the Grand Prix and clause 30 is intended to facilitate negotiations to this effect between the Corporation and the businesses."
Note the discussion in relation to the non payment of compensation is referred to at clause 42, ie: at 8.16.
8.11
Clause 31 gives the Corporation the power to enter Albert Park for the purposes of carrying out any of its functions.
Clauses 32 and 33 give the Corporation the power to fence off lands and close roads for the purposes of performing works.
The Committee notes that these powers are practically required if the Corporation is to perform its duties in making the area a safe place in which to hold the event and construct buildings and replant reserves.
Note that the discussion in relation to the non payment of compensation is referred to at clause 42, ie: at 8.16.
8.12
Makes rights, freedoms or obligations dependent upon insufficiently defined administrative powers - section 4D(a)(ii)
Makes rights, freedoms or obligations dependent upon non-reviewable administrative decisions - section 4D(a)(iii)
Clause 34 requires the Corporation to restore the declared area to a reasonable decision after the end of the event. The Committee of Management determines whether the restoration is reasonable. In the event of a dispute, the Ministers' joint decision is final.
The Committee is of the view that the provision may contravene sections 4D(a)(ii) and (iii) in that the Ministers' decision is non-reviewable.
The Minister wrote to the Committee on 3 October 1994. The relevant extract is set out:-
"The Government considers that resolution by Ministers of any dispute between two public bodies to be appropriate."
Note the discussion in relation to the non payment of compensation is referred to at clause 42, ie: at 8.16.
Clause 35 gives the Corporation the power to control and charge any filming and television rights.
8.13 ¯ Trespasses unduly upon rights or freedoms - section 4D(a)(i)
Clause 36 provides that any activity carried on by the Corporation within the declared area during the race period does not constitute a nuisance.
The Committee is of the view that this provision may contravene section 4D(a)(i) of the Parliamentary Committees Act 1968 in that at common law, noise and fumes may amount to nuisance. There is therefore a loss of existing rights. The Committee notes that this provision mirrors section 25(3) of the South Australian Australian Formula One Grand Prix Act 1984. The Committee also notes that the race period is limited to seven days per year. The Committee is also aware that there are competing environmental effects studies which differ on the impact of race noise during the race period.
8.14
Clause 37 gives the Corporation the power to remove any vehicles left unattended during the race period.
Clause 38 provides that the provisions of the Road Safety Act 1986 do not apply to the drivers and vehicles of a Formula One Event during the race period.
Clause 38(b) may contravene sections 4D(a)(iv) or (v). The Committee suggested to the Minister that the provision be amended to provide for Ministerial approval.
The Minister wrote to the Committee in a letter dated 3 October 1994. The relevant extract is set out:-
"The Government accepts the Committee's suggestion that the exemption be granted with the approval of the Minister rather than the Corporation."
8.15 ¯ Trespasses unduly upon rights or freedoms - section 4D(a)(i)
Clause 39 provides that the laws relating to vehicle emissions and noise do not apply to the declared area during a race period.
The Committee notes that there appears to be a loss of rights for anyone affected to sue for any compensation which may arise under these laws during the race period. The Committee notes that this is a practical step as race vehicles are clearly not subject to laws relating to noise during the race period. The Committee is uncertain as to whether there is a substantial loss of rights. In the circumstances the Committee refers the matter to the Parliament to debate.
Clause 40 prohibits unauthorised advertising during a race period except as permitted by the Corporation.
Clause 41 provides that the Corporation must pay to the Committee of Management a sum of no more than $100,000 within 14 days after the end of the race period.
8.16 ¯ Trespasses unduly upon rights or freedoms - section 4D(a)(i)
Clause 42 provides that no compensation is payable in respect of anything done or arising out of sections 28, 30, 32 and 33. Note that clause 50 prevents the Supreme Court from awarding compensation in respect of this clause or anything done under it.
(i) Clause 28
The Victorian Council for Civil Liberties suggested in its submission to the Committee that in relation to section 28 it may mean that if the Corporation undertakes works not in accordance with a licence and a person suffers as a result that a person is denied the right to seek compensation in the Supreme Court. The countervailing argument is that if the Corporation does not perform works in accordance with the licence then there has been a breach of the law, notwithstanding the exclusion provision in section 42. Those people who genuinely suffer as a consequence of the failure to perform works in accordance with a licence should not be prevented from bringing an action.
The relationship between clauses 28 and 42 may have the effect of removing common law rights arising out of negligent actions and works carried out under the Act. The Committee wrote to the Minister requesting his examination of these provisions and recommending that clauses 28 and 42 be amended to ensure that protection is given to citizens' actions in negligence or other common law rights.
The Committee is of the view that this provision in its current form may contravene section 4D(a)(i) of the Parliamentary Committees Act 1968.
The Minister wrote to the Committee on 3 October 1994. The relevant extract is set out:-
"There are a number of references to negligent acts in the Digest. The Government proposes to amend clause 42 to make it clear that only things that would be done in accordance with clauses 28, 30, 32 or 33 would receive the benefit of clause 42. Negligent actions would not fall within this protection.
On the other hand it is clear that, if the Bill is passed, Parliament is providing for an annual Grand Prix to occur at Albert Park and that necessarily will have an impact on some rights. I would request that the Digest reflect this fact and , given that this is the central purpose of the Bill, refer such matters to Parliament for debate."
(ii) Clause 30
In relation to section 30, the Committee has already noted that the rights and interests of those people in the declared area are suspended during the race period except to the extent that businesses may be conducted in accordance with the approval of the Committee of Management. Clause 42 provides that no compensation is payable to any one from anything arising out of that section 30.
The Committee notes that the clause 42 may contravene section 4D(a)(i) but refers to its earlier comments in respect of the possibilities for greater remuneration for businesses.
(iii) Clause 32
In relation to section 32, under 8.11 the Committee has already noted that a fencing power is reasonable. Pursuant to clause 42 no compensation is payable to anyone who may be affected by the fencing off of the lands and roads. In this respect clause 42 may contravene section 4D(a)(i).
(iv) Clause 33
In relation to section 33, under 8.11 the Committee has already noted that the power to close roads is reasonable. Pursuant to clause 42 no compensation is payable to anyone who may be affected by the closure of the roads. In this respect clause 42 may contravene section 4D(a)(i).
8.17 ¯ Part 4
Clause 43 ensures that no other motor races can be held at Albert Park other than the specified race period. Clause 44 grants the Corporation the proprietary interest in all the Grand Prix insignia and sets out the offences relating to its misuse.
Clause 45 provides that goods which have not been authorised pursuant to clause 44 may be seized. The goods must be returned if proceedings are not instituted within 3 months of their seizure and compensation may be sought if they have wrongly destroyed. Clause 46 provides that the Committee of Management or a member or an employee of the Committee is not liable for any loss or damage arising principally from any works performed by the Corporation. Clause 47 confers the powers of management on the Committee.
