Clause 3 inserts a new section 13A into the Act dealing with the effect of GST clauses on certain contracts entered into prior to 8 November 1999. The clause provides an exemption from the prohibition otherwise applying pursuant to section 13 of the Act in respect to a builder entering into a ‘cost plus contract’.⁴

4.1

The Bill was introduced into the Legislative Assembly on 15 December 1999 by the Honourable Rob Hulls MLA with the Honourable Peter Batchelor MLA. The Second Reading Speech was delivered on 16 December 1999.

4.2

The Bill re-enacts with certain amendments the law relating to juries. It repeals the Juries Act 1967. The Bill seeks to spread the obligation of jury service amongst the community; make juries more representative; and allows for the introduction of new technologies for the selection of jurors.

4.3

Clause 2 section 1, 2 and Part 12 come into operation on the day after the day on which this Act receives the Royal Assent. The remaining provisions of this Act come into operation on a day or days to be proclaimed but not later than by 1 January 2001.

Clause 4 provides that any selection of jurors required by the Act must be selection at random.

Clause 5 provides that any person over 18 years and enrolled as a State elector is liable for jury service.

Schedule 1 lists those who have served or are serving certain sentences for indictable crimes are disqualified form jury service in the circumstances and for the periods specified in the Schedule.

Schedule 2 lists the persons ineligible to serve as jurors such as members of Parliament; lawyers, police, judges, magistrates and other public officials; persons with certain physical disabilities; a patient under the Mental Health Act 1986; persons with an intellectual disability; persons unable to read or speak the English language adequately.

Clause 7 on application from a person the Juries Commissioner (the Commissioner) may defer a persons liability to serve on a jury.

Clauses 8 and 9 on application by the person or someone representing that person the Commissioner may excuse a person from jury service for reason either temporarily or permanently.

Clause 10 a person may appeal to the respective court a decision of the Commissioner not to allow a deferral or a permanent excuse from jury service under sections 7, 8 and 9.

Clauses 11 and 12 a court may excuse a person from jury service or may determine that a person should not perform jury service.

Clause 13 persons attending for jury service or persons having served on a jury may be excused from further service for a specified period. Clause 15 a person excused or exempted from service may waive that exemption or excuse.

Clause 20 the Commissioner must send a questionnaire to persons on the jury roll to determine their qualification and liability for jury service. The person must complete and return such a questionnaire within a specified time. Notwithstanding the failure to complete and return such a questionnaire the person remains liable for jury service. Clause 67 provides a penalty for failure without reasonable cause to complete and return a questionnaire (Penalty: $3,000/30 p.u.).

Clause 22 a civil jury comprises 6 jurors and a criminal trial jury comprises 12 jurors. Clause 23 in a criminal trial 3 additional jurors may be empanelled and in a civil jury 2 additional jurors may be empanelled.

Clause 24 deals with the payment by the party entering a civil case for trial by jury of jury fees.

Clause 26 the Juries Commissioner must provide the Chief Commissioner of Police a copy of every jury list for the purpose of determining any disqualifying factor under section 5(2), and the Chief Commissioner must inform the Juries Commissioner accordingly. If there are disqualifying factors the Commissioner must remove the persons name from the list of jurors.

Clause 27 the Commissioner must summons sufficient jurors for service. Such summons may be recalled, cancelled and re-issued as may be necessary.

Clause 31 provides that if the court considers that for security or other reasons the identity of jurors should be protected, jurors may be identified by number only. If such reasons do not exist jurors are identified by name and if they have the same name by name and occupation. If both the name and occupation are identical jurors may have their birth date identified.

Clause 32 the court must inform a panel of the nature of the action or charge, the name of the accused or party, the names of principal witnesses to be called, the estimate of the length of the trial and any other relevant facts. The court must then call on persons on the panel who seek to be excused. The court may excuse a person from service if it is satisfied the person will be unable to consider the case impartially or for any other reason is unable to serve.

Clause 33 sets out the procedure for selecting a civil jury. Clause 34 the number of potential jurors that may be challenged for cause in a civil trial is unlimited.

Clause 35 in a civil trial each party is permitted to make 3 peremptory challenges to potential jurors. If a number of plaintiffs or defendants are represented by the one legal practitioner they are deemed to be one party for the purpose of peremptory challenge.

Clause 36 sets out the procedure for selecting a criminal jury.

Clause 37 provides for unlimited peremptory challenges for cause by each accused and by the Crown.

Clause 38 sets out the right of the Crown to stand aside jurors in a criminal trial, they are - if only one person is arraigned 6 potential jurors; if 2 persons are arraigned 10 jurors; and if 3 or more persons are arraigned 4 potential jurors for each person arraigned.

Clause 39 each person arraigned is allowed to challenge peremptorily. If one person is arraigned 6 challenges may be made, if 2 persons are arraigned each may challenge 5, and if 3 or more persons are arraigned each may challenge 4 potential jurors. Clause 40 the challenge is to be determined by the judge before whom the jury is empanelled.

Clause 43 a judge may discharge a juror without discharging the entire jury if it appears the juror is not impartial, is incapable of continuing to act as a juror, becomes ill, or for any other reason.

Clause 44 a trial may continue with a reduced jury in the case of a civil trial with 5 jurors and in the case of a criminal trial with 10 or 11 jurors. The verdict of the remaining jurors of a reduced jury is a sufficient verdict.

Majority Verdicts

Clause 46 In 1993 majority verdicts were introduced in Victoria for all offences other than for murder and treason. The clause retains the requirement of unanimous verdicts for murder, treason and for all Commonwealth offences.

A court may refuse to take a majority verdict if it thinks the jury has not had sufficient time for deliberation having regard to the complexity and nature of the trial.

Majority verdicts are defined by section 46(1) as–

(a) if, at the time of returning its verdict, the jury consists of 12 jurors--a verdict on which 11 of them agree;
(b) if, at the time of returning its verdict, the jury consists of 11 jurors--a verdict on which 10 of them agree;
(c) if, at the time of returning its verdict, the jury consists of 10 jurors--a verdict on which 9 of them agree.

Clause 46(2) a judge may discharge a jury if after 6 hours of deliberations the jury has not reached a verdict.

Clause 46(3) a court may refuse to take a majority verdict if it considers that the jury has not had a period of time for deliberation that the court thinks reasonable having regard to the nature and complexity of the trial.

Clause 46(4) a unanimous verdict is required for the offences of murder, treason and for an offence against a law of the Commonwealth.

Clause 46(5) a jury may give a majority verdict concerning an alternative offence in circumstances where the jury has reached a verdict either unanimously or by majority that the accused is not guilty of the original offence charged and it is competent for the jury to consider an alternative offence.

Clause 47 provides for majority verdicts in civil trials.

Clause 48 where additional jurors have been empanelled a ballot is to be held to reduce the jury to 12 or 6 as the case may require prior to the jury retiring to consider its verdict. The foreperson however remains on the jury even in the event of being balloted out.

Jurors to be paid

Clause 51 concerns remuneration for jurors. Clause 52 requires an employer to make up pay lost as a result of jury service by paying the employee the difference between what he or she would have earned minus any jury fee paid. Clause 53 an employee must notify an employer of certain information in relation to jury service.

Compensation for jurors

Clause 55 compensation is payable to a juror for personal injury suffered arising out of or in the course of jury service.

Clauses 60 to 64 provide for the appointment of a Juries Commissioner and Deputy Commissioners and their powers to administer oaths.

Clause 65 provides that certain persons including the Commissioner, the Chief Commissioner of Police the DPP and their respective staff are bound by secrecy provisions not to disclose or communicate certain information enabling the identification of jurors on a jury roll, list, panel or jury other than in accordance with the provisions of the Act. There are some limited exceptions to this prohibition contained in section 65(3) and (4).

Clause 66 provides for offences by officials performing certain official functions and exercising any duty under the Act.

Clause 68 makes it an obligation to answer questions or produce documents lawfully put or required by a court or the Commissioner pursuant to the Act. Clause 69 provides that it is an offence for a person summoned for jury service to fail to disclose information relating to a disqualification or ineligibility to serve as a juror and Clause 70 makes it an offence to provide the Commissioner with false or misleading information. Clause 71 it is an offence to fail to attend for jury service and if empanelled to fail to attend until discharged by the court. Clause 74 it is an offence to impersonate another person for the purpose of jury service as that other person. Clause 75 creates an offence to for a juror to receive any additional payment for jury service from a party to a proceeding or from any other person.

Offence to dismiss employee on grounds of jury service.

Clause 76 provides that it is an offence for an employer to terminate an employees employment or prejudice the position of the employee because the employee was or will be absent on jury service. The court may order the re-instatement of such an employee and the payment of certain amounts by way of reimbursement for salary or wages lost by the employee.

Clause 76(4) provides that if a court considers it impracticable for an employer to re-instate the employee. The court may order the employer to pay the employee an amount not exceeding 12 months pay.

Reversal of onus of proof – employer to show reason for termination.

Clause 76(2) provides –

(2) In proceedings for an offence against sub-section (1), if all the facts constituting the offence other than the reason for the defendant's action are proved, the onus of proving that the termination or prejudice was not actuated by the reason alleged in the charge lies on the defendant.

Clause 77 provides offences for publishing or broadcasting names of jurors or transmitting images capable of identifying any person serving on a jury.

Clause 78 is concerned with the confidentiality of jury deliberations and seeks to prevent the publication of or the solicitation of information in respect to jury deliberations either by jurors, former jurors or any other person. There are limited exceptions to this prohibition which are contained in subclauses 78(3), (4) and (5).

Clause 78(9) allows the Attorney-General to permit the conduct of research into matters relating to juries and jury service.

Clauses 80 to 83 allow the Supreme Court and the County Court to deal with offences in a summary way and impose a fine. They are for the offences of; supplying false or misleading information to the Commissioner or the court for the purpose of evading jury service; failing to attend to be sworn or give evidence and giving false answers; impersonating a juror; receiving any payment from a party or any other person except as allowed under the Act; an employer terminating an employees employment because of jury service by the employee.

Clause 84 the provision preserves the power of a court to treat an offence under the Act as a contempt of court and to deal with the contempt summarily of its own motion rather than deal with it as an offence against the Act.

Clause 85 a fine imposed for a contempt of court or under sections 80 to 83 are enforceable pursuant to the Sentencing Act 1991.

Clause 86 an offender may only be punished once for an act or omission. An offender therefore can only be punished for only one of either an offence against the Act or conduct dealt with summarily by the court or a contempt of court.

Clause 88 allows the judges of the Supreme Court and the judges of the County Court to make rules of court that are consistent with the Act for the purpose of giving effect to the Act.

Common law offence of embracery survives Act

Clause 89 provides that the repeal of section 70 of the Juries Act 1967 does not effect the continued existence of the common law offence of embracery.⁵

Currently section 70 of the Juries Act 1967 provides –

Every person who is guilty of the offence of embracery and every juror who wilfully or corruptly consents thereto shall be respectively proceeded against and be punished by fine and imprisonment in like manner as every person or juror might have been before this Act came into force.

Clause 90 allows the Governor in Council to make regulations and provides–

(1) The Governor in Council may make regulations for or with respect to–

(a) prescribing forms;
(b) prescribing fees;
(c) prescribing administrative expenses in respect of refunds of fees for juries in civil trials;
(d) pools of jurors;
(e) jury lists;
(f) generally prescribing any other matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act.

Clause 91 inserts a new section 21(4) into the Juries Act 1967 providing that any information given by the Chief Commissioner of Police to the DPP (Victorian or Commonwealth) concerning any person on a jury panel on or before 30 September 1999⁶ is deemed to have been lawfully given. The practice of providing this information is discontinued in the Bill.

The Committee notes the comments in the Second Reading Speech-

The Juries Act 1967 disqualifies certain people from jury service if they have been convicted of certain offences or received certain sentences. Only very minor amendments have been made to those provisions since 1967. The Chief Commissioner of Police would provide information to the Deputy Sheriff to remove from jury panels persons with prior convictions which disqualified them from jury service. However, the provisions were inadequate and did not reflect community concerns and expectations about who should be disqualified from jury service. It was sought to address the inadequacies of that situation by a practice known as jury vetting.

To vet a jury, the Chief Commissioner of Police provided the prosecution in a criminal trial with details of potential jurors' prior criminal convictions. These prior convictions could be for any offence, no matter how minor. The prosecution then used this information in deciding whether or not to have a person excluded from the jury. This practice ceased on 30 September 1999 when the High Court, in the case of Katsuno v. R, held that the Juries Act did not provide the chief commissioner with the necessary powers to enable him to provide the prosecution with details of potential jurors' prior criminal convictions.

The practice of jury vetting is open to significant criticism, for instance:

Clause 92 repeals the Juries Act 1967.

The Schedules

Schedules 1 to 6 provide –

1. Persons disqualified from serving as jurors.
2. Persons ineligible to serve as jurors.
3. Swearing of jurors on empanelment
4. Swearing of Jurykeepers.
5. Swearing of jurors separating during deliberations.
6. Saving and Transitional provisions.

5.1

The Bill was introduced into the Legislative Council on 4 November 1999 by the Honourable Monica Gould MLC. The Second Reading Speech was delivered on 10 November 1999.

5.2

The Bill was used as the privileges bill⁷ in the Legislative Council and makes a minor statute law revision amendment to the Labour and Industry Act 1958 (the Act).

Clause 2 the amendment commences operation the day after the day on which it receives the Royal Assent.

Clause 3 removes the heading ‘Division 1 – Carriage of Goods’ in Part VII of the Act.

6.1

The Bill was introduced into the Legislative Assembly on 15 December 1999 by the Honourable Peter Batchelor MLA with the Honourable Keith Hamilton MLA. The Second Reading Speech was delivered on 16 December 1999.

6.2

The Bill amends the Melbourne City Link Act 1995 (the Act) to provide for; vehicle registration to be limited to specified toll zones; infringement notices to be issued in respect of offences relating to toll administration; and to make further provision in relation to records to be kept by relevant corporations.

6.3

Clause 2 The Act comes into operation on the day after the day on which it receives the Royal Assent.

Clause 5 amends sections 73, 73A, 73D and 77 to allow vehicles to be registered to use City Link for one or more toll zones rather than only for all zones.

Clause 6 inserts a new section 80A into the Act to permit an enforcement officer to issue an infringement notice against certain relevant agencies if he or she has reason to believe that the agency has committed an offence against section 90A(2) or 92(1) or he or she may cause an infringement notice to be served on that agency. Issuing an infringement notice is in addition to the existing option of prosecution by summons.

The toll administration offences include –Section 90A(2) unauthorised use and disclosure of restricted tolling information. Section 92(1) failure to keep correct records of tolling, tolling exemption and registration. Preventing an authorised person inspecting relevant records.

Clause 7 amends section 82 of the Act to provide that the infringement notice fine for a toll administration offence be fixed at $2000.

Clause 8 amends section 86 to apply the Penalty Enforcement by Registration of Infringement Notices (PERIN) procedure for toll administration offences.

Clause 10 substitutes a new section 92(1) into the Act to clarify standards in respect to the records required to be kept by City Link toll road operators .

The Committee makes no further comment.

7.1

The Bill was introduced into the Legislative Assembly on 5 May 1999 by the Honourable Jan Wade MP with the Honourable Rob Maclellan MP. The Second Reading Speech was delivered on 6 May 1999.

7.2

The Committee reported on the Bill in Alert Digest No. 5 of 1999 at pages 6 to 12. The Committee made the following comments in respect to the Bill–

The Committee is concerned that the effect of clause 16 may operate to the detriment of an unrepresented accused or an accused who receives legal representation prior to trial but after the temporal limitations imposed by the Bill have passed.

The Committee believes that the effect of the clause may diminish an accused person’s rights at trial in circumstances where an adverse comment may be permitted by the trial judge when the relevant non-compliance or failure occurred at a time prior to the accused receiving legal advice, or in circumstances where the accused is unrepresented throughout the period in which pre-trial procedural steps are required to be taken. In such circumstances the Committee is concerned that an adverse comment may be permitted when the accused may not have been fully informed of the consequences of failing to comply with the relevant pre-trial procedures at the time the procedural step was required to be taken and in any event may not have had the knowledge or capacity for proper compliance.

On 25 May 1999 the Committee wrote to the Attorney-General in respect to it’s concerns on clause 16 and the Attorney-General responded on 4 June 1999.

Thank you for your letter of 25 May 1999 concerning the effect of clause 16 of the Crimes (Criminal Trials) Bill 1999. You have sought my comments in relation to the issues raised in the letter.

As you would be aware, this Government has been particularly concerned with providing a fairer and more efficient criminal justice system (for example, changes to committal proceedings, appeals to the County Court and Project Pathfinder). In 1998, after substantial research and consultation about how the trial process could be improved, I established the Criminal Trials Consultative Committee (the ‘Consultative Committee’) to review criminal trial proceedings in Victoria. The Consultative Committee was chaired by Justice Kellam and included members of the judiciary, magistracy, senior criminal law practitioners (representing the prosecution and defence perspectives) and representatives of other key stakeholders such as Victoria Legal Aid and Victoria Police.

The Consultative Committee indicated that defining the issues in dispute in a trial prior to the commencement of the trial could significantly improve the efficiency in the conduct of criminal trials. As would be expected on such issues, there was some disagreement about precisely how and to what extent the issues could and should be defined prior to trial.

The Crimes (Criminal Trials) Bill 1999 (the ‘Bill’) establishes procedures to ensure that the issues in dispute in a trial will be determined prior to its commencement. As you are aware, it establishes various mechanisms to achieve this objective. The legislation has been carefully crafted to be sufficiently flexible to ensure that cases are neither over-managed nor under-managed by the courts.

The Crimes (Criminal Trials) Act 1993 (the ‘1993 Act’) established mechanisms to isolate the issues in a trial prior to the trial. Yet, the 1993 Act was ineffective. A major reason for this was that the parties did not comply with the spirit and purpose of the legislation. The Bill was drafted with those difficulties in mind. One of the most difficult issues which arose in formulating the new pre-trial procedures was developing mechanisms to ensure that the parties in a criminal matter would comply with their obligations under the Bill.

The Committee has raised concerns about the effect of clause 16 of the Bill. Clause 16 of the Bill provides the trial judge, or with leave of the court, a party, with the power to make any comment that the trial judge thinks appropriate where there has been a departure from the requirements under the Bill, or a failure to comply with a requirement of the Bill or an order made under it.

I have considered the issues raised by the Committee, however, I am satisfied that the proposed amendments will not have the effects apprehended by the Committee for the following reasons.

The Bill specifically includes provisions to ensure flexibility in the application of the obligations imposed by the Bill, and in the application of the various sanctions. This flexibility ensures that all accused will have fair trials, regardless of whether they are represented, or the stage at which they become represented.

Clause 16 provides that the trial judge may make any comment that the trial judge thinks ‘appropriate’. The trial judge in a criminal matter has a duty to ensure an accused person receives a fair trial and may only make a comment consistent with that duty. In determining whether a comment is appropriate and therefore consistent with the fair trial of the accused, the judge will have regard to all relevant circumstances of the case, including the accused’s knowledge of court processes.

The powers in clause 5 are designed, as stated in the explanatory memorandum, to give the court flexibility to cater for individual case requirements. The specific powers in clause 5, which ensure that the trial judge can fulfil the duty to ensure a fair trial, are:

Fair Trading Bill

8.1

The Bill was introduced into the Legislative Assembly on 24 March 1999 by the Honourable Jan Wade MP with the Honourable Phil Gude MP. The Second Reading Speech was delivered on 25 March 1999.

8.2

The Committee reported on the Bill on 13 April 1999 in Alert Digest No. 2 of 1999 at pages 5 to 15. The Committee expressed concerns in respect to clause 133 dealing with the protection against self-incrimination in the following terms –

Clause 133 deals with the protection against self-incrimination, and provides –

(1) It is a reasonable excuse for a natural person to refuse or fail to give information or to do any other thing that the person is required to do by or under this Part, if the giving of the information or the doing of that thing would tend to incriminate the person.

(2) Despite sub-section (1), it is not a reasonable excuse for a natural person to refuse or fail to produce a document that the person is required to produce by or under this Part, if the production of the document would tend to incriminate the person.

The Committee notes the distinction made in the Bill between the giving of information or the doing of any other thing that may tend to incriminate a person and the production of a document that would tend to incriminate that person.

The Committee notes that this is a new provision in respect to the privilege against self-incrimination not found in any of the Acts to be repealed. The Committee notes that the usual provision for the protection against self incrimination typically found in many other Acts is:

A natural person may refuse or fail to give any information that she or he is required to give by or under this Act if the giving of the information would tend to incriminate her or him.

Examples of this type of privilege clause are found in section 214 of the Petroleum Act 1998, section 37M of the Associations Incorporation Act 1981 and section 204 of the Equal Opportunity Act 1995.

The Committee notes the provisions of section 155(7) of the Trade Practices Act 1974 (Clth) –

(7) A person is not excused from furnishing information or producing or permitting the inspection of a document in pursuance of this section on the ground that the information or document may tend to incriminate the person, but the answer by a person to any question asked in a notice under this section or the furnishing of any information in pursuance of such a notice, or any document produced in pursuance of such a notice or made available to an authorised officer for inspection, is not admissible in evidence against the person in any criminal proceedings other than proceedings under this section.

The Committee further notes that section 159(2) of the Trade Practices Act 1974 (Clth) provides –

Evidence given by a person before the Commission is not admissible against him or her in any criminal proceedings other than proceedings for offences against this Part.

The Committee notes that there is no similar exception in the Fair Trading Bill.

The Committee notes that by virtue of section 117(4) these new self-incrimination provisions will also apply to the nineteen Acts listed in Schedule 1 (see 3.5 below).

The Committee is concerned that the provision will compel persons to produce documents that tend to incriminate them. Failure to comply renders persons liable to a pecuniary penalty of up to a $6,000/60 p.u. fine (section 132). The effect of the provision appears to render the privilege against self-incrimination nugatory where the production of a document becomes the evidence or part of the evidence against a person.

The Committee notes that in at least three of the Acts in Schedule 1, being the Fundraising Appeals Act 1998 (s.60), the Associations Incorporation Act 1981 (s.37N) and the Introduction Agents Act 1997 (s.56), the provision in the proposed section 132(2) will modify the privilege against self-incrimination provisions contained in those enactments.

On 13 April 1999 the Committee requested the Attorney-General to advise the Committee in respect to clause 133 and the Attorney-General responded on 28 May 1999.

Thank you for your letter dated 13 April 1999 in which you seek my response to the comments of the Scrutiny of Acts and Regulations Committee regarding clause 133 of the Fair Trading Bill.

The Committee’s concern is that the provision will compel persons to produce documents that tend to incriminate them and that this will render the common law privilege against self-incrimination nugatory where the production of a document becomes evidence, or part of the evidence, against the person.

The privilege against self-incrimination is part of the accusatorial system of justice that requires the prosecution to prove the guilt of the accused.

The High Court noted in Environment Protection Authority v. Caltex (1993) 118 ALR 392 that "the privilege inhibits the production of books which might be used in evidence and are in the nature of real evidence which speak for themselves as distinct from testimonial oral evidence which is brought into existence in response to an exercise of investigative power or in the course of legal proceedings".

The Court concluded that "the case for protecting a person from compulsion to make an admission of guilt is much stronger than the case for protecting a person from compulsion to produce books or documents which are in the nature of real evidence and which are not testimonial in character."

It is one thing to not force a person to testify against himself or herself: it is another thing to construe the privilege so broadly that it is impossible for the prosecution to gather documentary evidence in support of its case against the accused. It should be noted that the powers under a search warrant enable investigators to gather documentary evidence that may be used as evidence against an accused.

The problem is particularly pronounced in relation to offences of a commercial character, for which the only evidence will often be in the form of documents. In the Caltex case the High Court noted that "economic crimes (as contrasted with common law crimes) are usually not even discoverable without access to business records".

In order to protect the public interest in ensuring a competitive and fair market in safe goods and services, it is necessary for inspectors to be able to obtain relevant documentation from traders. By drawing a distinction between information, which is of a testimonial character, and documents, which speak for themselves, clause 133 strikes a balance between:

Fair Trading (Inspectors Powers and Other Amendments) Bill

9.1

The Bill was introduced into the Legislative Assembly on 14 April 1999 by the Honourable Bill McGrath MP on behalf of the Honourable Jan Wade MP with the Honourable Alan Stockdale MP. The Second Reading Speech was delivered on 15 April 1999.

9.2

The Committee considered the Bill in Alert Digest No. 4 of 1999 at pages 4 to 8. The Committee considered the adequacy of certain statements contained in the Explanatory Memorandum attached to the Bill and made the following comment –

The Committee notes that the Explanatory Memorandum repeats the provision in the clauses of the Bill without any further assistance to the reader. The Committee does not believe that the content of the Explanatory Memorandum provides adequate or sufficient guidance to the Parliament as to the reasons or consequences flowing from the intended repeal of these sections.

The Committee wrote to the Minister on 4 May 1999 and the Minister responded on 2 June 1999.

Thank you for your letter dated 4 May 1999 regarding the Explanatory Memorandum for this Bill.

The Explanatory Memorandum sets out that clause 16 of the Bill repeals sections 26 and 27 of the Travel Agents Act 1986 and that clause 19 of the Bill repeals sections 41 and 42 of that Act, which, as you say, is a repetition of the contents of those clauses.

Those sections of that Act are being repealed because, in the case of sections 26 and 27, they are being replaced by the provision inserted into section 28 by clause 17 of the Bill, which enables undertakings to be given under the Fair Trading Act 1999. In the case of sections 41 and 42, they are being replaced by the inspectors’ powers set out in clause 18 of the Bill.

Reading the Explanatory Memorandum again, in the light of your comments, I agree that it could have been clearer. Unfortunately, it is too late to amend the Explanatory Memorandum at this stage but your concerns have been noted by Parliamentary Counsel who have advised that they will, in future, include the reason for the repeal of sections, where that is not self-evident on its face.

Gas Industry Acts (Further Amendment) Bill

10.1

The Bill was introduced into the Legislative Assembly on 5 May 1999 by the Honourable Alan Stockdale MP with the Honourable Phil Gude MP. The Second Reading Speech was delivered on 6 May 1999.

10.2

The Committee considered this Bill in Alert Digest No. 5 of 1999 at pages 19 to 25. The Committee expressed its concerns in respect to a number of clauses as follows –

The Committee wrote to the Minister on 25 May 1999 requesting him to advise the Committee in respect to its concerns. The Minister responded on 17 June 1999.

Thank you for your letter of 25 May 1999. In that letter you raise a number of points about the Gas Industry Acts (Further Amendment) Bill. I respond to the points in the same order as you.

As you observe, clause 5 of the Bill inserts a new section 5(5) into the Gas Industry Act 1994 which deemed the pipeline referred to in an Order in Council to have been declared on 16 December 1998 a "transmission pipeline". The pipeline in question is the Interconnect that links the Victorian gas system with the New South Wales gas system. On 16 December 1998 the Australian Competition and Consumer Commission issued its Final Approval of the Access Arrangements for the Interconnect. That approval was based on the Interconnect being a "transmission pipeline." To put to rest that doubt, new section 5(5) has been inserted. No reference was made in either the explanatory memorandum or Second Reading Speech to the retrospective effect of the provision as it is in the nature of a technical amendment.

As the Committee noted, the purpose of the amendment contained in clause 14 of the Bill is to clarify the operation of section 50. Legal advice had been received that agreements made under section 50(1) allocating between the parties rights and obligations in respect of a pipeline might be overridden by section 50(2) which provides for permits and licences to confer on those parties the same rights and obligations, but as against the licensor they had the same rights and obligations. The amendment clarifies that original intent. Again no reference was made in either the explanatory memorandum or second reading speech to the retrospective effect of the provision as it is in the nature of a technical amendment.

However, I have noticed the Committee’s belief that Parliament should be informed of the significance of retrospective provisions, even in the case of what may be viewed as technical or clarifying amendments and will ensure that this is kept in mind for the future.

Turning to the other matters raised in your letter. As the Committee surmised, clause 21 of the Bill amended section 62PA of the Act to clarify the rules that had the benefit of that section. As such, that clause does not have retrospective effect. In respect of clause 34, the omission from the Bill of a section 85 of the Constitution Act 1975 declaratory provision was an oversight. Likewise with the omission from the Second Reading Speech in the Lower House of a section 85 statement. However, on 25 May 1999 I made the necessary statement to the Lower House and later introduced a House amendment to enact the necessary declaratory provision. That provision now appears as section 117A(2) of the Gas Safety Act 1997. The Second Reading Speech in the Upper House contained the section 85 statement.

Clause 36 of the Bill is the subject of comment in the explanatory memorandum. As that comment records, the amendments are to sections that prospectively provide for VENCorp Pty Ltd to succeed VENCorp the statutory corporation. The explanatory memorandum notes that the date for that transfer is not fixed. When that transfer will be depends on a number of factors including the readiness of the industry for self-regulation. Because it is impossible to determine such matters in advance, it was decided to amend the Act to provide for the relevant sections to come into operation on a day or days to be proclaimed. That said, I am conscious of the Committee’s views on deferral of the commencement of legislation but in this instance section 16L of the Act is relevant. That section requires a review in 2007 of whether or not there is a continuing need for VENCorp and as such provides a trigger whereby, if the succession has not occurred by then, the provisions can be reviewed and if necessary repealed.

Lastly, clause 37 has been introduced to allow sections 31 and 32 of the Gas Industry Acts (Amendment) Act 1998 to come into force on a date other than 1 December 1999 which was their previous default commencement date as part of Part 4 of that Act. This has been done so that those sections can be brought into force separately from and in advance of the rest of Part 4. The necessary Proclamation of Commencement for the sections will shortly be submitted to His Excellency the Governor.

The Committee wrote to the Minister on 25 May 1999 expressing its concerns in respect to each of the matters above and requested the Minister to advise the Committee accordingly. The Minister responded on 3 June 1999.

Thank you for your letter of 25 May 1999 about the Interactive Gaming (Player Protection) Bill.

I write to address your queries about the content of the Bill as follows:

(a) Why does the Bill provide for commencement by proclamation? In the absence of a specific commencement date in the Bill, what is the anticipated commencement date of the legislation?

The Bill is for a new Principal Act. As with any such new substantial piece of legislation which involves a new licensing system, there are regulations to be made and preparatory administrative matters to be organised before it is possible for the legislation to commence.

(b) The broad nature of the regulation-making power in clause 19(1)(f).

Although this provision is broadly worded, it is necessary to interpret it by limiting it to the context of the provision in which it appears, clause 19(1). That clause deals with the issues to which the Victorian Casino and Gaming Authority may have regard in deciding whether an applicant is a suitable person to hold an interactive gaming licence. Accordingly, only matters relevant to that issue may be prescribed under that regulation-making power.

As the Authority is an independent statutory body, it would not be appropriate for me to fetter its discretion by specifying any matters which may be the subject of such regulations.

(c) The necessity or desirability of the Authority not being required to give reasons for its decision on an application, in light of probity decisions not being reviewable.

The Bill is consistent with all other Victorian gaming legislation, which does not require reasons to be given for decisions of the Authority. Nor does any other Victorian gaming legislation include any right of appeal relating to probity matters.

One reason for this is the stringent secrecy provisions contained in Victorian gaming legislation, including this Bill. It would be a breach of those provisions for probity matters relating to a person to become public knowledge.

Further, the Authority is a body charged with the responsibility of making probity or suitability decisions about persons wishing to enter or remain in the Victorian gaming industry. It is a real likelihood that a person with an active role in the gaming industry, who had been deemed unsuitable by the Authority to remain in that role, would use an appeal mechanism to delay being removed from the industry.

In addition, a person aggrieved by the process by which an administrative decision was reached always has the right to apply to the Supreme Court for a review of that process.

I hope that the above explanations are sufficient to address the Committee’s concerns.

Land Title Validation (Amendment) Bill

12.1

The Bill was introduced into the Legislative Assembly on 27 October 1998 by the Honourable Jeff Kennett MP with the Honourable Phil Gude MP. The Second Reading Speech was delivered on 28 October 1998.

12.2

The Committee reported on this Bill in Alert Digest No. 8 of 1998 at pages 13 to 21. At the conclusion of a presentation made by the Defenders of Native Title, the Chairman of the Committee Mr Peter Ryan MP undertook to write to the Minister responsible for Aboriginal Affairs in respect to an issue raised in respect to the Dharnya Cultural Centre. The Chairman’s letter to the Minister is as follows –

I refer to the above Bill introduced by the Premier into the Legislative Assembly on 27 October 1998.

During the Committee’s deliberations on the Bill on 9 November 1998 evidence was given before the Committee by former Senator Sid Spindler and Mr Peter Lewis representing ‘Defenders of Native Title’. During their submission reference was made to the Dharnya Cultural Centre facility devoted to aboriginal heritage in the Barmah Forest, which as I understand it, was then subject to the Yorta Yorta claim.

Some concern was expressed by these representatives that the enactment of this legislation would have adverse impact on the aboriginal people rights to use the centre. I indicated to the Senator that it was my understanding that there was never any intention on the part of the Victorian Government to in any way, either claim ownership of this building, or alternatively inhibit the capacity of aboriginal people to use and access the Centre. However the Senator was concerned that the strict terms of the Bill would mean that both these possibilities might arise.

To determine the intent of the new legislation and the Governments policy on this issue I undertook to raise the subject with you at an early opportunity.

I would be grateful for your comments in due course and would be pleased to discuss the issue of the Dharnya Cultural Centre with you at any time.

The Chairman’s letter was sent to the Minister on 16 February 1999 and the Minister responded on 2 July 1999.

Thank you for your letter of 16 February 1999 concerning issues about the Dharnya Centre which were raised in evidence during the Scrutiny of Acts and Regulations Committee’s hearing on the Land Titles Validation (Amendment) Bill.

This evidence appears to have raised concerns that the legislation would affect Aboriginal people’s access to the Dharnya Centre.

As your letter suggests, the Victorian Government has no intention of trying to limit Aboriginal people’s access to the building.

Further, I understand that the Yorta Yorta Aboriginal community continues to be involved in the operation and management of the Centre. There are also ongoing discussions between government agencies and the community about the future involvement of Yorta Yorta people in all aspects of operation of the Dharnya Centre.

I trust this information will reassure you that the Victorian Government is keen to ensure that Aboriginal people continue to access and use the Dharnya Centre.

13.1

The Bill was introduced into the Legislative Assembly on 5 May 1999 by the Honourable Robin Cooper MP with the Honourable Phil Gude MP. The Second Reading Speech was delivered on 6 May 1999.

13.2

The Committee considered the Bill on 25 May 1999 in Alert Digest No. 5 of 1999 at pages 33 to 35. The Committee was concerned in respect to the section 85 statement made in relation to clause 36 which inserted a new section 36(1A) into the Public Transport Competition Act 1995. The Committee commented as follows –

The Committee notes the comments in the Second Reading Speech in respect to the existence of adequate protection for persons with bus service contracts under the Act and the contractual processes. On the material before it the Committee is unable to comment whether those protections are adequate to justify the no compensation clause proposed to be introduced by this section 85 amendment.

The Committee will write to the Minister to seek further comment and clarification on this issue.

The Committee wrote to the Minister on 3 June 1999.

14.1

The Bill was introduced into the Legislative Assembly on 24 March 1999 by the Honourable Alan Stockdale MP with the Honourable Phil Gude MP. The Second Reading Speech was delivered on 25 March 1999.

14.2

The Committee considered this Bill in Alert Digest No. 2 of 1999 (pages 38 to 40) and again in Alert Digest No. 4 of 1999 (page 35). In Alert Digest No. 4 the Committee made comment in respect to the retrospective effect of the commencement clause (clause 2) in the following terms –