Alert Digest No. 4
of 2000
4 April 2000
Administrative and Probate (Dust Diseases) Bill
1.1
The Bill was introduced into the Legislative Assembly on 15 March 2000 by the Honourable Rob Hulls MLA with the Honourable Peter Batchelor MLA. The Second Reading Speech was delivered on 16 March 2000.
1.2
The purpose of the Bill is to amend the Administration and Probate Act 1958 (the Act) to provide for the survival of claims for damages in certain causes of action in relation to dust-related conditions and for other purposes and to make other minor amendments to the Act.
1.3
Clause 2 the provisions commence operation on the day after Royal Assent.
Clause 3 provides a definition of "dust-related condition"–
(a) a disease specified in the First Schedule; or
(b) any other pathological condition of the lungs, pleura, peritoneum or sinus that is attributable to dust.
Clause 4 makes amendments to section 29 of the Act with the insertion of a new section 29(2A) dealing with the survival of certain causes of action upon the death of a plaintiff for the benefit of his or her estate. The new section overcomes the shortcomings of the previous common law rule whereby certain causes of action died with the person. The new section 29(2A) provides–
(2A) Where–
(a) a cause of action survives under sub-section (1) for the benefit of the estate of a deceased person; and
(b) the death of that person is from a dust-related condition which has been caused by the act or omission which gives rise to the cause of action; and
(c) proceedings in respect of that cause of action were commenced by that person before his or her death and were pending at his or her death--
the damages recoverable for the benefit of the estate of that person shall include damages for all or any of the following--
(d) that person's pain or suffering;
(e) any bodily or mental harm suffered by that person;
(f) the curtailment of that person's expectation of life.
Clause 5 is a transitional provision and inserts a new section 99AC providing that section 29(2A) of the amended Act does not apply to proceedings commenced before the commencement of section 4 above, if the plaintiff has died before the commencement of section 4 of the amending Act.
Clause 6 inserts the First Schedule into the Act and lists the relevant Dust Related Conditions
First Schedule – Dust Related Conditions
Aluminosis
Asbestosis
Asbestos induced carcinoma
Asbestos related pleural diseases
Bagossosis
Berylliosis
Byssinosis
Coal dust pneumoconiosis
Farmers' lung
Hard metal pneumoconiosis
Mesothelioma
Silicosis
Silico-tuberculosis
Talcosis
The Committee makes no further comment.
Education Acts (Amendment) Bill
2.1
The Bill was introduced into the Legislative Assembly on 15 March 2000 by the Honourable Mary Delahunty MLA with the Honourable Peter Batchelor MLA. The Second Reading Speech was delivered on 16 March 2000.
2.2
The Bill amends the Education Act 1958 (the Act) and the Teaching Service Act 1981 to–
- revoke special functions and powers given to certain school councils;
- provide for the transfer of staff employed by those councils;
- make transitional provisions for other agreements and arrangements entered into by those school councils.
2.3
Clause 2 sections 1 and 2 come into operation on the day after Royal Assent the remaining provisions come into operation on proclamation but not later than by 1 July 2001.
Clause 3 repeals the sections in the Act relating to Self-Governing Schools and provides that notices under section 15S of the Act published in the Government Gazette dated 31 December 1998 and 16 June 1999 cease to have effect.
Clause 4 inserts new sections 15ZD to 15ZO into the Act.
15ZD enables the Secretary to the Department of Education to transfer school council employees who elect to be transferred to employment under the Teaching Service Act 1981 or section 5 of the Act.
15ZE provides that the Secretary must notify staff regarding transfers and request expressions of interests from those employees who wish to elect to transfer to employment in the teaching service established under the Teaching Service Act 1981 or to employment under section 5 of the Act.
15ZF provides that the Secretary must within 30 days of receiving a notice from a school council employee under section 15ZE(2), give the employee an offer of employment specifying the terms and conditions of that employment.
15ZG provides that an employee may elect to transfer to the employment notified in section 15ZF and the Secretary may accept such an offer to transfer within the period specified in the offer or such longer time as is reasonable in the circumstances.
15ZI provides: that on transfer the employee ceases to be employed or engaged by a school council under section 15T; and is transferred to the teaching service established under the Teaching Service Act 1981. The transferred employee is entitled to long service leave, annual leave, sick leave, maternity leave and other leave which have accrued, as if the period of employment or engagement under section 15T had been service in the teaching service established under the Teaching Service Act 1981 and those entitlements had accrued in accordance with that Act.
The service of a school council employee during a period of employment or engagement by a school council under section 15T is to be treated for the purposes of the Teaching Service Act 1981 and the State Superannuation Act 1988 as being continuous service as a member of the teaching service.
15ZJ provides identical conditions to new section 15ZI for transfer of staff other than teachers and principals.
15ZK provides that a school council employee who has not elected to transfer to the teaching service established under the Teaching Service Act 1981 or to employment under section 5 of the Act may continue to be employed by the council until the end of their current employment contract. A school council must not extend the term of such an employment contract.
15ZL authorises the Minister to continue to make Ministerial Orders under section 15T(5) as if that section had not been repealed, specifying the terms and conditions of employment of school council employees who decide not to transfer. Section 15T(5) provides –
(5) The Minister may make Orders in relation to–
(a) the determination of salaries and allowances to be paid to, and the terms and conditions of employment of, persons employed by school councils as head teachers or principals or as teaching or other staff;
(b) the disqualification of any person from being employed as a teacher or continuing to be employed as a teacher if the person has been found guilty or convicted of a sexual offence within the meaning of section 35.
| The Committee resolved to write to the Minister to seek clarification whether it is intended that the saving provision made by new section 15ZL is intended to apply to both sub-paragraphs (a) and (b) of section 15T(5). |
15ZM allows school councils to continue exercising certain powers in relation to property acquired or disposed of before the amendments made by this Bill come into effect, as though such amendments had not come into effect.
15ZN allows the continuation of certain arrangements and the exercise of powers in respect to partnerships, associations and joint ventures that had been entered into by the school council before the provisions in the Bill take effect. However, councils may not extend the term of the partnership, association or a joint venture.
15ZO provides that all educational services agreements entered into under section 15Y of the Act cease to have any effect.
Clause 5 amends section 77(1) of the Teaching Service Act 1981 and removes the Secretary’s powers to delegate to a school council.
The Committee makes no further comment.
3.1
The Bill was introduced into the Legislative Assembly on 15 March 2000 by the Honourable Peter Batchelor MLA with the Honourable Mary Delahunty MLA. The Second Reading Speech was delivered on 16 March 2000.
3.2
The Bill amends the Road Safety Act 1986 (the Act), Road Safety (Amendment) Act 1990, Road Safety (Drivers) Act 1991, Road Safety (Further Amendment) Act 1998, Marine Act 1988 and the Transport Act 1983.
The purposes of the Act are to–
- prohibit driving while impaired by a drug other than alcohol;
- enable blood samples to be taken by approved health professionals in drink-driving cases;
- permit councils to, by resolution, fix a penalty, up to a maximum of $50, for parking infringements committed against regulations made under the Act, within their municipal districts;
- validate certain resolutions made by councils, fixing a penalty up to a maximum of $50, for parking infringements committed against regulations made under the Act within their municipal districts;
- make certain local laws in relation to the parking of vehicles have force and effect despite being inconsistent with regulations made under the Act;
- empower protective services officers to prosecute drivers for certain parking offences;
- provide for the introduction of digital cameras and digital speed cameras.
- amend the Marine Act 1988 and the Transport Act 1983 to enable ‘approved health professionals’ to take blood samples in relation to certain offences involving alcohol, and repeals certain unproclaimed amendments.
3.3
Clause 2 deals with the relevant commencement of the provisions of the Bill. Part 1 and sections 16, 19-26 and 36 come into operation on the day on which this Act receives Royal Assent. Section 35* is deemed to have come into operation on 4 November 1998. The remaining provisions of the Bill come into operation on proclamation but no later than by 1 December 2000. [Refer to clause 35 below for comment on retrospectivity].
Part 2 – Driving while impaired by a drug
Clause 4 provides for definitions including a substituted definition for–
|
|
Further there are definitions for ‘permissible non-prescription drug’ and ‘prescription drug’.
In section 3 of the Act new sub-sections (3) and (4) are inserted to provide–
*(3) The Minister may, by Order published in the Government Gazette, declare any substance to be a drug for the purposes of this Act.
(4) The Director of the Victorian Institute of Forensic Medicine may, in writing, approve a person to take blood samples for the purposes of Part 5 if the Director is of the opinion that the person has the appropriate qualifications, training and experience to take such samples.
| The Committee notes the delegation allowed to the Director in the proposed section 3(4). The Committee is of the opinion that it is an appropriately defined and limited power. |
* Orders made under section 3(3) are subject to disallowance as though they were statutory rules subject to the provisions of the Subordinate Legislation Act 1994. [Refer to comments under clause 14].
Clause 5 inserts a number of important interpretative provisions into the Act to provide for evidentiary presumptions in relation to the presence of a ‘drug’ in the body of a person charged with impaired driving.
In section 48(1) of the Act insert –
(ab) if it is established that at any time within 3 hours after an alleged offence against paragraph (ba)* of section 49(1), a certain drug was present in the body of the person charged with the offence it must be presumed, until the contrary is proved, that that drug was present in the person's body at the time at which the offence is alleged to have been committed.
In section 48 of the Act insert –
(1AC) For the purposes of an alleged offence against paragraph (ba)* of section 49(1) it must be presumed that a drug found by an analyst to be present in the sample of blood or urine taken from the person charged was not due solely to the consumption or use of that drug after driving or being in charge of a motor vehicle unless the contrary is proved by the person charged on the balance of probabilities by sworn evidence given by him or her which is corroborated by the material evidence of another person.
*Inserted by Clause 6.
(1AD) For the purposes of sections 55A and 55B, a driver is not to be taken to be impaired unless his or her behaviour or appearance is such as to give rise to a reasonable suspicion that he or she is unable to drive properly.
The Committee notes that the provision inserted into section 48 by clause 5 of the Bill constitutes reversal of onus of proof provisions and that these may attract comment by the Committee as a possible trespass to rights and freedoms. The Committee notes that there are exceptions to this general proposition in cases for example, where the defendant may be in possession of relevant information which would be difficult or impossible for the prosecution to prove but relatively easy for the defendant to prove. In the context of the particular offence created by the section, the Committee recognises the relative difficulty or ease with which the allegation or the defence may be established by the prosecution and the defendant. The Committee also notes that similar interpretative provisions exist in section 48(1)(a) and 48(1A) in respect to driving under the influence of alcohol. In the circumstances the Committee notes this provision for Parliaments consideration. |
New offence of driving while impaired by a drug
Clause 6(1) inserts new sections 49(1)(ba) 49(1)(ca) providing new offences of driving while impaired by a drug and refusal to undergo testing offences similar to the offences existing for driving under the influence of alcohol offences. The new offences provide–
(ba) drives a motor vehicle or is in charge of a motor vehicle while impaired by a drug; or;
(ca) refuses to undergo an assessment of drug impairment in accordance with section 55A when required under that section to do so or refuses to comply with any other requirement made under section 55A(1);
(ea) refuses to comply with a requirement made under 55B(1).
(55A(1) provides for an assessment of drug impairment preliminary to a requirement under 55B(1) (the taking of blood and urine samples – see comments under clause 9 below).
Clause 6(2) amends section 49(3) and provides for penalties for the new offences in (ba), (ca) and (ea) above, of up to 12 penalty units for a first offence and 25 penalty units or up to 3 months imprisonment for a subsequent offence.
Clause 6(3) inserts new sections 49(3A), (3B) and (3C).
New section 49(3A) establishes the necessary elements of proof in proceedings for an offence of driving or being in charge of a vehicle while being impaired by a drug, they are–
(a) the person drove or was in charge of a motor vehicle; and
(b) one or more drugs were present in the person's body at the time at which he or she drove or was in charge of the motor vehicle; and
(c) the behaviour of the person on an assessment of drug impairment carried out under section 55A was consistent with the behaviour usually associated with a person who has consumed or used that drug or those drugs; and
(d) the behaviour usually associated with a person who has consumed or used that drug or those drugs would result in the person being unable to drive properly is, in the absence of evidence to the contrary but subject to sub-sections (3B) and (3C), proof that the defendant drove or was in charge of a motor vehicle while impaired by a drug.
Defence to a charge of driving whilst impaired by a drug under section 49(1)(ba)
New section 49(3B) providing that–
(3B) If on an analysis carried out in accordance with this Part, no drug other than a permissible non-prescription drug or a prescription drug was found present in the person's body, it is a defence to a charge under paragraph (ba) of sub-section (1) for the person charged to prove that -
(a) he or she did not know and could not reasonably have known that the permissible non-prescription drug or the prescription drug, or the combination of those drugs, so found would impair driving if consumed or used in accordance with advice given to him or her by a registered medical practitioner, a dentist or a pharmacist in relation to the drug or combination of drugs; and
(b) he or she consumed or used that drug or combination of drugs in accordance with that advice.
"Advice" in (3B) means written or oral advice and includes anything written on a label accompanying the drug.
Clause 6(4) inserts a new section 49(8) into the Act which provides that, if on a prosecution for an offence under section 49(1)(a) (dealing with driving under the influence of liquor or a drug), the court is not satisfied that the defendant is guilty of that offence but is satisfied that the defendant is guilty of the lesser offence under paragraph (ba) (driving whilst impaired) the court may find the defendant guilty of an offence under paragraph (ba) and punish the defendant accordingly. The penalties under section 49(1)(a) are higher than those created for the new offences under section 49(1)(ba), (ca) and (ea).
The existing offence under section 49(1)(a) provides that–
‘a person is guilty of an offence if he or she drives a motor vehicle or is charge of a motor vehicle while under the influence of intoxicating liquor or of any drug to such an extent as to be incapable of having proper control of the motor vehicle.
Section 49(1)(a) provides for higher penalties of 25 penalty units or 3 months imprisonment for a first offence and for up to 12 months imprisonment for a subsequent offence.
Licence cancellation and disqualification
Clause 7 makes amendments to section 50 concerning licence cancellation and disqualification, and assessments and education programs as a consequence of the new impaired driving provisions introduced by the Bill. The provisions are similar to those applying to drink driving offences. In the case of an offence under 49(1)(ba) (driving whilst impaired by a drug) the disqualification period is not less than 12 months for a first offence and not less than 2 years for a subsequent offence. In the case of an offence against sections 49(1)(ca) or (ea) (refusing to undergo a test and failing to accompany an officer to supply blood or urine sample) the disqualification period is not less than 2 years for a first offence and not less than 4 years for a subsequent offence.
Immediate suspension of licence or permit
Clause 8 deals with the immediate suspension of driver licences or permit and inserts a new section 51(1A) providing that if a person is charged by a member of the police force with an offence under section 49(1) (ba), (ca) or (ea), any member of the police force may, at any time after the making of the charge until the charge has been determined, give an accused person a notice containing the prescribed particulars informing the accused that his or her driver licence or permit is immediately suspended until the charge has been determined and requiring the accused to surrender immediately to the person who gave the notice the licence document or permit document.
New procedure to assess drug impairment
Clause 9 inserts the new procedures for identifying drug impairment.
New section 55A permits a member of the police force at any time to require–
(a) any person he or she finds driving a motor vehicle or in charge of a motor vehicle; or
(b) the driver of a motor vehicle that has been required to stop at a preliminary breath testing station under section 54(3); or
(c) any person who he or she believes on reasonable grounds has within the last 3 preceding hours driven or been in charge of a motor vehicle when it was involved in an accident; or
(d) any person who he or she believes on reasonable grounds was, within the last 3 preceding hours, an occupant of a motor vehicle when it was involved in an accident, if it has not been established to the satisfaction of the member of the police force which of the occupants was driving or in charge of the motor vehicle when it was involved in the accident; or
(e) any person whom he or she has required under section 53 to undergo a preliminary breath test; or
(f) any person required under section 55 to furnish a sample of breath or from whom a sample of blood was required to be taken under section 55(9A)--
to undergo an assessment of drug impairment if, in the opinion of the member, that person's behaviour or appearance indicates that he or she may be impaired for a reason other than alcohol alone and for that purpose may further require the person to accompany a member of the police force to a place where the assessment is to be carried out and to remain there until the assessment has been carried out or until 3 hours after the driving, being an occupant of or being in charge of the motor vehicle, whichever is sooner.
A person is not obliged to undergo an assessment of drug impairment if more than 3 hours have passed since the person last drove, was an occupant of, or was in charge of a motor vehicle.
New section 55A(5)* an assessment of drug impairment must be carried out by a member of the police force authorised to do so by the Chief Commissioner of Police and in accordance with the procedure specified by the Roads Corporation under the Act and published in the Government Gazette* which will specify the procedure to be followed in assessing drug impairment.
[*Refer to clause 14 - a notice under this section is a disallowable instrument under the Subordinate Legislation Act 1994].
An assessment of drug impairment must be video-recorded unless the prosecution satisfies the court that a video-recording has not been made because of exceptional circumstances. If the person is charged, a copy of the video recording must be given to the person with the summons or within 7 days of the making of the charge.
The video recording is only admissible in a proceedings against the person for an offence against the Act for the purpose of establishing that the assessment of drug impairment was carried out in accordance with the procedure specified in the notice as Gazetted under section 55A(5).
New section 55B if a person undergoes an assessment under section 55A and the assessment, in the opinion of the member of the police force indicates that the person may be drug impaired the member may require the person to do either or both of the following: (a) allow a registered medical practitioner or an approved health professional to take a blood sample or require a sample of urine to be furnished by the person, and (b) accompany a member of the police force to a place where the sample is to be taken or furnished and to remain there until the sample has been taken or furnished or until 3 hours after the driving, being an occupant of or being in charge of the motor vehicle, whichever is sooner.
A part sample of blood or a part sample of urine taken under section 55B must be given to the person providing the sample and to the member of the police requiring the sample.
It is an offence to hinder the taking or furnishing of samples under the provisions of the Act.
New section 55B(4) deals with a section 85 of the Constitution Act 1975 immunity from suit provision as follows–
No action lies against a registered medical practitioner or an approved health professional in respect of anything properly and necessarily done by the practitioner or approved health professional in the course of taking any sample of blood, or being furnished with any sample of urine, which the practitioner or approved health professional believed on reasonable grounds was required to be taken from, or be furnished by, any person under this section.
[Refer to 3.4 for comments concerning section 85 of the Constitution Act 1975].
Destruction of video recordings and other material when no longer required
New section 55C deals with the destruction of identifying information such as video-recordings and any related material and information that are no longer required for prosecution purposes. It is an offence to fail to destroy such material when required under the Act, and it is an offence to improperly use any such material for a purpose unrelated to a prosecution under the Act.
Evidentiary provisions – blood tests
Evidence may be given by experts as to the usual effect of a drug on a person’s driving ability
Clause 10 amends section 57(1) of the Act and deals with evidentiary provisions concerning blood tests. There are new definitions inserted for "properly qualified expert" (‘the expert’ which includes ‘approved experts’) and "approved expert" (a person approved by Order of the Governor in Council and published in the Government Gazette). An amendment to section 57(2) makes it plain that a properly qualified expert may give evidence of the usual effect of a drug on behaviour when consumed or used including its effect on a person’s ability to drive properly. Such evidence may be given in the form a prescribed certificate signed by the expert.
Clause 11 similarly to the amendments made by clause 10 above, this clause inserts new section 57A dealing with evidentiary provisions relating to urine tests. The new section provides definitions for "approved analyst", "approved expert", "properly qualified analyst", and "properly qualified expert".
Under the provisions of the section a certificate containing the prescribed particulars purporting to be signed by an ‘approved expert’ as to the usual effect of a specified substance or substances on behaviour when consumed or used (including its effect on a person's ability to drive properly) is admissible in evidence in any hearing referred to in the section and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.
The person giving the certificate may be required, with the leave of the court, to be cross-examined, and that person must attend accordingly.
The court must not grant leave to cross-examine unless it is satisfied that the informant has been given at least 7 days' notice of the hearing of the application for leave and has been given an opportunity to make a submission to the court; and that –
(i) there is a reasonable possibility that the urine referred to in a certificate given by an analyst under sub-section (4) was not that of the accused; or
(ii) there is a reasonable possibility that the urine referred to in a certificate given by a registered medical practitioner or an approved health professional had become contaminated in such a way that a drug found on analysis would not have been found had the urine not been contaminated in that way; or
(iii) for some other reason the giving of evidence by the person who gave the certificate would materially assist the court to ascertain relevant facts.
Police powers to enter vehicles
Clause 12 amends section 63 and extends police powers of entry into a vehicle using reasonable force to give effect to the amendments relating to drug assessment made by new section 55A. The amended provision will provide –
A member of the police force may, for the purpose of establishing the identity of the driver of a motor vehicle or arresting a person or carrying out the provisions of section 53*, 54*, 55* or 55A, enter the motor vehicle using, if necessary, reasonable force, if the driver refuses or fails to obey any lawful direction given to him or her by the member of the police force.
[*the sections deal with preliminary breath tests, testing stations and breath analysis.]
Clause 13 is a section 85 Constitution Act 1975 provision dealing with immunity for registered medical practitioners and ‘approved health professionals’ under new section 55B(4). The matter is further dealt with at 3.4 below.
Disallowance of Orders and notice
Clause 14 amends section 96(1) of the Act concerning disallowance of regulations, notices and orders. New sections 96(1)(ab) and (ca) are inserted to provide that –
(ab) an Order under section 3(3)* and
(ca) a notice under section 55A(5)*
are disallowable instruments as though they were statutory rules within the meaning of the Subordinate Legislation Act 1994.
*New section 3(3) provides –
The Minister may, by Order published in the Government Gazette, declare any substance to be a drug for the purposes of the Act.
*New section 55A(5) provides –
The Corporation may, by notice published in the Government Gazette, specify the procedure to be followed in assessing drug impairment.
The Committee notes that the Orders made pursuant to section 3(3) and the notices made pursuant to section 55A(5) inserted by the Bill are subject to the disallowance procedures in the Subordinate Legislation Act 1994.
Regulation making power amended
Clause 15 makes the following consequential amendments to the regulation making power.
(1) In item 52 of Schedule 2 to the Principal Act, after "blood samples" insert "or urine samples.
(2) After item 55 of Schedule 2 to the Principal Act insert –
55A. The methods to be used by analysts in determining the presence of a substance in a blood or urine sample.
(3) In items 56 and 57 of Schedule 2 to the Principal Act, after "blood" insert "or urine.
The Committee accepts that the amendments to the regulation making power are necessary and appropriate to give effect to the purposes of the Act.
Part 3 – Other Amendments to the Road Safety Act 1986
Clause 16 amends section 3(1) of the Act to remove references to contraventions of local laws from the definition of ‘parking infringement’.
Clause 17 amends section 59 of the Act and extends authority to take blood samples to "approved health professionals".
Importantly the new defined group ‘approved health professionals’ is inserted into sections 55(9E) and 57(8) of the Act by clauses 17(3) and 17(5) respectively. These amendments deal with immunity from suit for anything properly done in the course of taking a blood sample. [Refer to 3.4 above for a section 85 Constitution Act 1975 provision and statement].
Clause 18 amends section 55(9A) to ensure that, in circumstances where a person who is unable to furnish a sample of breath on medical grounds or physical disability, or the breath analysing instrument is unable to properly measure the persons breath for any reason, the person may be required to accompany a member of the police force to a place where a sample of blood may be taken.
Clause 19 inserts a new section 77(2)(ab) to permit a protective services officer appointed under Part VIA of the Police Regulation Act 1958, to prosecute certain offences and carry out related functions such as the issue of a parking infringement notices.
Clause 20 amends sections 80, 81 and 80A to allow for the use of changes in technology in the area of traffic camera devices such as digital cameras.
Clause 21 picks up an inadvertent error in section 84(3) of the Act arising from the change in the definitions section from ‘registered owner’ to ‘registered operator’.
Clause 22 inserts a new section 87(4) dealing with the ability of municipal councils to change the parking infringement penalty amounts for minor parking infringements within the municipality not exceeding $50.
Clause 23 amends section 93 of the Act and will allow service of a notice to a person whose address is given to the Roads Corporation which is not an address that is his or her place of residence or business, by sending it addressed to the person at the address given by the person.
Clause 24 inserts new sections 104 and 105 into the Act. New section 104 validates certain resolutions of municipal councils made on or after 1 October 1992 and 1 December 1999 but before the commencement of the clause 22 of the Bill (above), fixing penalties for parking infringements not greater than $50. It deems that such resolutions have the same effect as if clause 22 had been in force when the resolutions were purportedly made.
New section 105 deems certain local laws in relation to parking as having never been inconsistent (and of no force and effect) with regulations made under the Road Safety Act 1986.
The Committee notes the comments in the Second Reading Speech–
Traditionally councils have had the ability to determine at the local level the penalties for minor infringements in parking areas, such as leaving a vehicle at an expired meter.
Amendments to various Acts and regulations at the time of the commencement of the Local Government Act 1989 have raised doubts about whether councils still have the powers that they have continued to exercise. The Bill removes these doubts and provides that the penalties imposed, none of which exceed $50, are to be taken to be valid.
The Committee notes the retrospective declaratory and validating effect of clause 24 inserting new section 104 and 105 into the Act. The Committee also notes the Minister’s comments in the Second reading Speech. The Committee accepts the desirability of the validating provision.
Regulation making subjects included in schedule
Clause 25 inserts additional subjects for regulation making in Schedule 2 of the Act.
New item 37A will allow regulations prohibiting employers of drivers, other employees of those employers, consignors of goods and other persons from requiring, requesting or permitting drivers to drive motor vehicles in contravention of regulations relating to the number of hours during which the motor vehicle may be driven; or the carrying of a log book on the motor vehicle and trailer; or the maximum speed for the motor vehicle.
New items 39A, 49B and 49C deal with regulations which may be permitted concerning the use of new technological detection devices such as digital cameras.
The Committee notes the additional subject matter for regulations to be included in Schedule 2 of the Act and accepts that they are appropriate to give effect to the purposes of the Act.
Part 4 – Amendments to other Acts
Marine Act 1988
Clause 27 inserts into section 3(1) of the Marine Act 1988 a definition of "approved health professional" as referred to in clause 4 above and makes other consequential related amendments. Importantly the additional new definition is inserted into sections 31(9E) and 32(9). Those sections deal with immunity from suit for anything properly done in the course of taking a blood sample by a medical practitioners ‘or an approved health professional’. [Refer to clause 29 and 3.4.]
Clause 28 amends section 31(9A) to enable a member of the police force to require a person to accompany a member of the police force to a place where a sample of blood may be taken.
Clause 29 inserts a section 85 Constitution Act 1975 declaratory provision as new section 107B of the Marine Act 1988. [Refer to clause 27 and 3.4.]
Regulation making power
Clause 30 inserts a new item 62C in Schedule 5 of the Marine Act 1988 inserting "and approved health professionals" as a consequential additional regulation making power allowing that defined group to take blood samples in addition to registered medical practitioners.
The Committee notes the amendment to the regulation making power and accepts that they are appropriate to give effect to the purposes of the Act.
Transport Act 1983
Clause 31 inserts in section 93(1) of the Transport Act 1983 the definition for "approved health professional" to permit that defined group (in addition to registered medical practitioners) to take blood samples for the purposes of the Transport Act 1983.
Clauses 31(5) and 31(7) insert the words ‘or approved health professional’ in sections 96(12) and 98(10) of that Act and clause 34 declares that it is the intention of sections 96(12) and 98(10) as amended by clause 31 to alter or vary section 85 of the Constitution Act 1975. [Refer to 3.4.]
Clause 32 amends section 96(8) of the Transport Act 1983 to enable a member of the police force to require a person to accompany a member to a place where a blood sample is to be taken.
Regulation making power
Clause 33 amends the regulation making power in section 102 of the Transport Act 1983 to provide for ‘an approved health professional’ to take blood samples for the purposes of that Act.
The Committee notes the amendment to the regulation making power and accepts that it is appropriate to give effect to the purposes of the Act.
Clause 34 inserts a section 85 Constitution Act 1975 declaratory provision as new section 255C in the Transport Act 1983. [Refer to clause 31 and 3.4.]
Clause 35 amends section 7 of the Road Safety (Further Amendment) Act 1998 to correct an inadvertent error.
The Committee notes the retrospective application of clause 35 to 4 November 1998 is necessary to overcome an inadvertent error made by a 1998 amendment to the Act.
Clause 36 repeals certain unproclaimed amendments to the Road Safety Act 1986 made in 1990 and 1991.
| 3.4 | Report to the Parliament pursuant to section 4D(b)(i) and (ii) of the Parliamentary Committees Act 1968 concerning a repeal alteration or variation of section 85 of the Constitution Act 1975 concerning the jurisdiction of the Supreme Court |
Clause 13 inserts a new section 94B into the Act declaring that it is the intention of section 55B(4) (as inserted by clause 9 of the Bill) to alter or vary section 85 of the Constitution Act 1975.
New section 55B(4) provides–
No action lies against a registered medical practitioner or an approved health professional in respect of anything properly and necessarily done by the practitioner or approved health professional in the course of taking any sample of blood, or being furnished with any sample of urine, which the practitioner or approved health professional believed on reasonable grounds was required to be taken from, or be furnished by, any person under this section.
Clause 17(6) amends section 94A of the Act by inserting section 94A(2) declaring that it is the intention of sections 55(9E)* and 57(8)*, as amended by section 17 of the Road Safety (Amendment) Act 2000, to alter or vary section 85 of the Constitution Act 1975.
*The amendments in clause 17(3) and 17(5) of the Bill respectively insert the words ‘or approved health professional’ into sections 55(9E) and 57(8) of the Act.
Clause 29 inserts new section 107C into the Marine Act 1988 and declares that it is the intention of sections 31(9E)* and 32(9)*, as amended by clause 27 of the Road Safety (Amendment) Act 2000, to alter or vary section 85 of the Constitution Act 1975.
*The amendments in clause 27(5) and 27(7) of the Bill respectively insert the words ‘or approved health professional’ into sections 31(9E) and 32(9) of the Act.
Clause 34 inserts a new section 255C into the Transport Act 1983 and declares that it is the intention of sections 96(12)* and 98(10)*, as amended by section 31 of the Road Safety (Amendment) Act 2000, to alter or vary section 85 of the Constitution Act 1975.
*The amendments in clause 31(5) and 31(7) of the Bill respectively insert the words ‘or approved health professional’ into sections 96(12) and 98(10) of the Act.
The Committee notes the comments in the Second Reading Speech–
Section 85 statement
Section 94B of the Road Safety Act 1986, as inserted by clause 13 of this Bill, states that it is the intention of section 55B(4) to alter or vary section 85 of the Constitution Act 1975.
Section 94A(2) of the Road Safety Act 1986, as inserted by clause 17(6) of this Bill, states that it is the intention of sections 55(9E) and 57(8) of that Act, as amended by clause 17 of this Bill, to alter or vary section 85 of the Constitution Act 1975.
Section 107C of the Marine Act 1988, as inserted by clause 29 of this Bill, states that it is the intention of sections 31(9E) and 32(9) of that act as amended by clause 27 of this bill to alter or vary section 85 of the Constitution Act 1975.
Section 255C of the Transport Act 1983, as inserted by clause 34 of this Bill, states that it is the intention of sections 96(12) and 98(10) of that act as amended by clause 31 of this Bill to alter or vary section 85 of the Constitution Act 1975.
The effect of these provisions is to confer immunity on certain persons for carrying out certain procedures under the Road Safety Act 1986, the Marine Act 1988 and the Transport Act 1983 and thereby prevent the bringing of proceedings against those persons in the Supreme Court in respect of those procedures.
Section 55B of the Road Safety Act 1986, as inserted by clause 9 of this Bill, is part of the new procedures for detecting drivers impaired by drugs. It includes provision for medical practitioners and approved health professionals in certain circumstances to take blood samples and/or to be furnished with urine samples.
The reason for the variation of the Supreme Court's jurisdiction is that immunity is necessary to enable persons who properly carry out procedures for the detection of drugs in the body of a driver to do so without fear of litigation by disgruntled persons.
Clause 17 of this Bill amends the Road Safety Act 1986 to enable approved health professionals to take blood samples for analysis for the presence of alcohol. This function is currently limited to medical practitioners. Clause 17 also amends sections 55(9E) and 57(8) of the Road Safety Act 1986 to extend to approved health professionals the immunity given to medical practitioners performing this function. The reason for the variation of the Supreme Court's jurisdiction is that immunity is necessary to enable persons who properly carry out procedures for the detection of alcohol in the body of a driver to do so without fear of litigation by disgruntled persons.
Like medical practitioners, the specified nurses and other approved persons have the expertise, technical training and knowledge to ensure that the procedures are properly carried out. In so doing, they should receive the same immunities as medical practitioners.
Clause 27 of this Bill amends the Marine Act 1988 to enable approved health professionals to take blood samples for analysis for the presence of alcohol. This function is currently limited to medical practitioners. Clause 27 also amends sections 31(9E) and 32(9) of the Marine Act 1988 to extend to approved health professionals the immunity given to medical practitioners performing this function. The reason for the variation of the Supreme Court's jurisdiction is that immunity is necessary to enable persons who properly carry out procedures for the detection of alcohol in the body of a person in charge of a vessel to do so without fear of litigation by disgruntled persons.
Like medical practitioners, approved health professionals have the expertise, technical training and knowledge to ensure that the procedures are properly carried out. In so doing, they should receive the same immunities as medical practitioners.
Clause 31 of this Bill amends the Transport Act 1983 to enable approved health professionals to take blood samples for analysis for the presence of alcohol. This function is currently limited to medical practitioners. Clause 31 also amends sections 96(12) and 98(10) of the Transport Act 1983 to extend to approved health professionals the immunity given to medical practitioners performing this function. The reason for the variation of the Supreme Court's jurisdiction is that immunity is necessary to enable persons who properly carry out procedures for the detection of alcohol in the body of a person engaged in safety work on a railway or tramway system to do so without fear of litigation by disgruntled persons.
Like medical practitioners, approved health professionals have the expertise, technical training and knowledge to ensure that the procedures are properly carried out. In so doing, they should receive the same immunities as medical practitioners.
The Committee is of the view that the proposed section 85 provisions made by the Bill involving the Road Safety Act 1986, the Marine Act 1988 and the Transport Act 1983 are appropriate and desirable in all the circumstances.
The Committee makes no further comment.
Trade Measurement (Amendment) Bill
4.1
The Bill was introduced into the Legislative Assembly on 15 March 2000 by the Honourable Rob Hulls MLA with the Honourable Peter Batchelor MLA. The Second Reading Speech was delivered on 16 March 2000.
4.2
The Bill amends the Trade Measurement Act 1995 (the Act) to–
- adopt nationally agreed reforms;
- make minor amendments to the Act and the Trade Measurement (Administration) Act 1995 (the Administration Act) relating to applications for review to the Victorian Civil and Administrative Tribunal (VCAT).
4.3
Clause 2 provides that the provisions of the Bill come into operation on the day after Royal Assent.
Clause 5 provides that an inspector may give the owner or user of a measuring instrument a notice to remedy certain contraventions within 28 days.
Clause 11 amends section 31 of the Act and requires the selling price of a pre-packed article to be correctly computed by reference to the measurement of the article without any packaging or other thing that is not part of the article.
Clause 14 provides that a person may appeal to the appeals tribunal under the Administration Act against certain decisions of the licensing authority within 28 days after the notice of the decision is given to the person.
Clause 15 amends section 60(1)(b) of the Act to allow an inspector the power in the course of investigating a possible offence to weigh or measure a vehicle and its load in addition to the powers of entry and search.
Clause 16 inserts a new section 61(2) into the Act providing an inspector the power to record the details of any measuring instrument that is examined or tested in the way the inspector considers appropriate, including by filming or photographing.
Clause 17 makes amendments to section 62(1)(a) of the Act and allows an inspector to measure an article or package containing an article that the inspector believes is for sale by reference to the measurement of the article. It also amends section 62(4) to allow an inspector to record the details of any article that is examined or measured in the way the inspector considers appropriate, including by filming or photographing.
Clause 19 amends the regulation making power in section 80(2)(g) by inserting the word ‘certified’ providing that the regulations may make provision with respect to the sealing of a certified, verified or re-verified measuring instrument.
The Committee notes the insertion of the word ‘certified’ in section 80(2)(g) of the regulation making power and is of the opinion that the power is appropriate to give effect to the purposes of the Act.
Clause 20 inserts a new section 14 in the Administration Act to provide that for the purposes of section 59 (dealing with the right of review) of the Trade Measurement Act 1995, the appeals tribunal is the VCAT. It also provides that if a provision of the Victorian Civil and Administrative Tribunal Act 1998 is inconsistent with a provision of the Act or the Administration Act, the provision of the Act or the Administration Act prevail.
The Committee makes no further comment.
MINISTERIAL CORRESPONDENCE
5.1
The Crimes at Sea Bill was introduced into the Legislative Council on 30 November 1999 by the Honourable Marsha Thomson MLC. The Second Reading Speech was delivered on 1 December 1999. The Act received Royal Assent on 21 December 1999.
5.2
The Committee reported on the Act pursuant to section 4D(ba) of the Parliamentary Committees Act 1968 in Alert Digest No. 1 of 2000. The Committee expressed concern in relation to the commencement of the Act by proclamation provided in section 2of the Act. The Committee made the following comment–
The Committee notes that the Act is part of a national cooperative scheme between the Commonwealth, the States and the Northern Territory, and as such the simultaneous commencement of the provisions in the Act may be dependent on complementary legislation being enacted in all other jurisdictions. In these circumstances the Committee may accept that a commencement by proclamation Section would be appropriate. However the Committee notes that the Commonwealth Act provides a forced commencement date, being 12 months after Royal Assent. The Committee further notes that neither the Explanatory Memorandum nor the Second Reading Speech provide any information on the desirability of employing a commencement by proclamation Section in this instance.
Given the Commonwealths use of a forced commencement provision the Committee will write to the Minister to seek an explanation why the Act seeks to depart from that practice.
5.3 Minister’s response
Thank you for your letter dated 28 February 2000. In your letter, you asked why the Crimes at Sea Act 1999 (Vic) (‘The Victorian Act’) uses a commencement by proclamation section, rather than providing a forced commencement date.
As the Committee has noted, the Victorian Act will form part of a national co-operative scheme between the Commonwealth, the States and the Northern Territory. It is intended that a common implementation date will be agreed upon to bring the scheme into effect uniformly around Australia, once legislation is passed in all jurisdictions.
The Victorian Act is based on model legislation for the States and the Northern Territory that was developed by the Special Committee of Solicitors-General and approved by the Standing Committee of Attorneys-General. The model legislation specifies the commencement by proclamation section. The same section has also been used in the other States that have already passed the legislation (South Australia, New South Wales and Tasmania). The remaining States (Queensland and Western Australia) and the Northern Territory are expected to enact legislation shortly.
In your letter, you also noted that the Commonwealth Bill contains a forced commencement date. In general terms, the Commonwealth Bill has two purposes:
1. to give legal force to the Commonwealth’s part of the scheme; and
2. to provide for the application of Australian criminal law in certain areas outside the scheme.
The Commonwealth Attorney-General’s Department has advised that the forced commencement date is not intended to have any impact on the co-operative implementation of the scheme. It is intended that a commencement date will be agreed between the jurisdictions before 12 months has expired from the date of Royal Assent. In any event, due to the co-operative nature of the scheme, it could not operate simply by the commencement of the Commonwealth legislation.
Finally, I also note that the Commonwealth Bill contains provisions relating to offences outside the scheme, which are not contained in the State legislation. For example, the Commonwealth Bill deals with cooperation between Australia and Indonesia for the enforcement of criminal law in Area A of the Zone of Cooperation. The commencement of such provisions is not dependent on the adoption of the scheme by all jurisdictions.
The Committee thanks the Attorney-General for his response.
6.1
The Bill was introduced into the Legislative Assembly by the Honourable Steve Bracks MLA with the Honourable Christine Campbell MLA on 1 March 2000. The Second Reading Speech was delivered on 2 March 2000.
6.2
The Committee considered this Bill on 13 March 2000 and reported its concerns in Alert Digest No. 3 of 2000. The Committee resolved to write to the Minister in relation to the following matters.
Clause 40(2)
The Committee is concerned that clause 40(2) may be a provision which insufficiently subjects the exercise of legislative power to parliamentary scrutiny under section 4D(a)(v) of the Parliamentary Committees Act 1968 (the Act). A further concern is that the provision in its current form may make rights, freedoms or obligations dependent upon insufficiently defined administrative powers pursuant to section 4D(a)(iii) of the Act.
The Committee is concerned that whilst it may scrutinise the delegation provision in clause 37 of the Bill and be satisfied that it is appropriate and necessary to give effect to the purposes of the Act, it cannot scrutinise what effectively amounts to a sub-delegation of investigation powers in clause 40(2). For instance the Committee is unaware how counterpart authorities intend to delegate identical powers of investigation. The Committee is unaware whether counterpart authorities responsible for administering counterpart Acts provide for a defined and limited delegation provision which would be acceptable to the Committee within its terms of reference, that is, one which does not make rights, freedoms or obligations dependent upon insufficiently defined administrative powers.
To ensure that any exercise of powers by a person nominated by a counterpart authority is appropriately defined and limited the Committee suggests the provision be clarified to ensure that any person nominated by the counterpart authority is a person authorised to undertake investigations under the counterpart Act and that such persons be members of a defined or limited category, such as employees of the relevant State or Territory equivalent of the Victorian State Revenue Office.
Clause 46
The Committee is of the opinion that clause 46 may constitute an abrogation of the privilege against self-incrimination. The Committee is also concerned that the clause when taken in conjunction with clause 41 may provide authorised persons under the Act oppressive powers for use against vulnerable classes of persons such as the relatively young and those with a limited knowledge of English and other classes of vulnerable persons not strictly regarded as being under a legal disability as defined by clause 16 of the Bill.
The provisions appear to compel the attendance of an applicant at a specified time and place before an authorised officer to answer questions and/or to produce documents and also appear to arm the authorised officer with section 46 powers relating to self-incrimination subjecting the applicant to possible pecuniary penalties of up to $6,000.
The Committee will write to the Minister to seek further information as to the necessity or desirability for the inclusion of these provisions in their current form.
Clause 47(3)
The Committee notes that the provision creates a strict liability offence requiring the applicant to prove that the statement was neither wilful nor negligent.
The Committee notes that the clause 47(2) may allow the liability of an applicant to be founded on negligence alone, and may subject an applicant to a pecuniary penalty of up to $1,000.
The Committee is concerned at the position that some vulnerable applicants may find themselves in, in circumstances where they are advised by third persons (promoters) to claim the benefit as an inducement or part of an inducement to enter into a relevant transaction covered by the Bill. It would be of concern to the Committee if the fraudulent or negligent advice of professionals/promoters once accepted by an applicant may for example constitute negligence on the part of the applicant within the meaning of clause 47(2) and 47(3) of the Bill. The Committee will request further information from the Minister whether an appropriate defence of negligent advice and fraud on the part of third parties is open to an applicant under any of the provisions of the proposed Act and what the legal liability of such an applicant may be under clauses 47(2) and 47(3).
The Committee will write to the Minister to seek further clarification on the operation and intent of clauses 47(2) and 47(3) of the Bill.
6.3 The Minister’s response
Thank you for your letter of 15 March 2000 to the Premier. He has asked me to reply as the Minister responsible for passage of this Bill through the Legislative Assembly, where I delivered its Second Reading Speech on 2 March 2000.
Your Committee is concerned about three administrative provisions of this Bill, as reported in Alert Digest No. 3 of 2000 published on 14 March 2000.
As you may know, the First Home Owner Scheme required nationally uniform legislation under the Intergovernmental Agreement on the Reform of Commonwealth – State Financial Relations (IGA), as agreed to by the Commonwealth and all State and Territory Governments, including the previous Victorian Government. The core principles set out in the IGA form the basis of a national template bill drafted on behalf of all jurisdictions by the Parliamentary Counsel for South Australia. The three clauses in the Victorian Bill of concern to the Committee have their genesis in the national template, but are non-core provisions that allow for the possibility of local variations.
I have considered the Committee's comments together with advice from the State Revenue Office (SRO) following consultation by it with the Office of the Chief Parliamentary Counsel. In the light of those views, I foreshadow, in respect of two of the provisions outlined below, proposing House Amendments at the Committee stage of debate on the Bill in the Assembly.
Clause 40(2) authorises investigations in Victoria by counterpart authorities to the SRO which administer corresponding laws. The Government now accepts that only appropriately qualified officers or employees of those authorities should be nominated under the Act as delegates of the Victorian Commissioner in order to carry out investigations in Victoria for the purposes of the corresponding laws. Accordingly, the reference to "nominated persons" will be appropriately qualified.
Clause 47 creates offences for making false and misleading statements in connection with applications for first home owner grants. The Government now accepts that, in Victoria, only false and misleading statements made knowingly in connection with an application should attract a penalty. Accordingly, the House Amendment I propose will omit existing clause 47 and substitute a mirror of existing sections 57 & 58* of the Taxation Administration Act 1997 (Vic) (TAA) dealing with false or misleading information given knowingly, as well as with deliberate omissions from statements connected with applications. There would be no alteration to the maximum penalties provided in the existing Bill.
Clause 46 abrogates the privilege against self-incrimination, but limits the admissibility of material so obtained to proceedings for offences against the First Home Owner Grant Act or those in the nature of perjury. This provision is included in the national template and was slightly modified in the Victorian Bill to accord with model section 87 of the TAA. The Government continues to accept that in order to properly administer public expenditures under the Scheme, SRO requires Clause 46 to enable it whenever necessary to obtain answers to questions; and/or for persons to produce documents. I assure the Committee that the only persons who will be delegated or authorised to conduct investigations for the Commissioner will be appropriately qualified SRO officers or employees.
Please pass on to Committee members my thanks for their constructive comments on this Bill.
6.4
The Committee notes that an amendment will be made to clause 40(2) to ensure that only appropriately qualified officers or employees of interstate authorities should be nominated under the Act as delegates of the Victorian Commissioner in order to carry out investigations in Victoria for the purposes of the corresponding laws and that accordingly, the reference to "nominated persons" will be appropriately qualified.
The Committee also notes that clause 47 as introduced by the Bill will be substituted for provisions mirroring sections 57 and 58 of the Taxation Administration Act 1997 and that the existing penalty provisions will remain as introduced in the Act. The Committee notes that the relevant provisions in that Act are –
57. Giving false or misleading information to tax officers
(1) A person must not--
(a) make a statement, orally or in writing, to a tax officer; or
(b) give information, orally or in writing, to a tax officer--
that is false or misleading in a material particular.
Penalty: 500 penalty units in the case of a body corporate; 100 penalty units in any other case.
(2) A person is not guilty of an offence against sub-section (1) if the court hearing the charge is satisfied that the person did not know that the statement or information was false or misleading in a material particular.
58. Deliberately omitting information
A person must not omit from a statement made to a tax officer any matter or thing without which the statement is, to the person's knowledge, false or misleading in a material particular. Penalty: 500 penalty units in the case of a body corporate; 100 penalty units in any other case
The Committee thanks the Minister for his response and notes that amendments will be moved that address the concerns of the Committee.
Gambling Legislation (Responsible Gambling) Bill
7.1
The Bill was introduced into the Legislative Assembly on 1 March 2000 by the Honourable John Pandazopoulos MLA with the Honourable Steve Bracks MLA. The Second Reading Speech was delivered on 2 March 2000.
7.2
The Committee considered this Bill in Alert Digest No. 3 of 2000 and made the following comment–
The Committee notes that the Authority, in determining an application to amend a licence concerning 24 hour gaming, is not required to give reasons for its decision to make or refuse to make an amendment, but may give reasons if it thinks fit.
The discretion to give reasons or to refrain from giving reasons may be a breach of section 4D(a)(iii) of the Committee’s terms of reference as constituting a provision that makes rights, freedoms or obligations dependent upon non-reviewable administrative decisions.
The Committee will write to the Minister to seek further advice as to the reason why such a provision is thought necessary or desirable in the circumstances.
7.3 The Minister’s response
I refer to your letter of 15 March 2000, in which you request further advice in relation to Clause 17(5) of this Bill.
In particular you have sought my advice as to why proposed new sections 27(4A) and (4B) of the Gaming Machine Control Act 1991, (which are inserted by Clause 17(5) of the Bill), provide that the Victoria Casino and Gaming Authority is not required to give reasons for its decision to make or refuse to make an amendment to a venue operator’s licence concerning 24 hour gaming.
The Bill is consistent with all other Victorian gaming legislation, which does not require reasons to be given for decisions of the Authority.
In making its decisions the Authority is required to have regard to a number of sensitive matters including information acquired by it on a confidential basis, about the probity of applicants and their associates, and commercially sensitive information.
In certain instances, it may be inappropriate for the Authority to be required to disclose this material in the form of reasons. A person aggrieved by the process by which the Authority mad an administrative decision always has the right to apply to the Supreme Court for a review of that process. Therefore, I am of the view that the Authority’s discretion whether to give reasons would not breach the Committee’s terms of reference.
Please note, however, that it is proposed to review this issue in conjunction with the review of the secrecy provisions of the gaming legislation, which will take place later this year. I would welcome any comments the Committee may wish to make on this issue.
The Committee thanks the Minister for his response.
Committee Room
Monday, 3 April 2000
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