Alert Digest No. 5
of 2000
2 May 2000
Accident Compensation (Common Law and Benefits) Bill
1.1
The Bill was introduced into the Legislative Assembly on 12 April 2000 by the Honourable Bob Cameron MLA with the Honourable John Brumby MLA. The Second Reading Speech was delivered on 13 April 2000.
1.2
The purposes of the Bill are to -
- provide for the restoration of common law actions for damages with effect from 20 October 1999;
- increase the amount of compensation payable for non-economic loss;
- provide for regular payments for overtime and shift allowances to be included when calculating a worker's weekly payments for the first 26 weeks;
- make miscellaneous amendments to the Accident Compensation Act 1985 (the Act) to improve the operation of the Act;
- amend the Dangerous Goods Act 1985, the Transport Accident Act 1986, the Accident Compensation (WorkCover Insurance) Act 1993 and the Extractive Industries Development Act 1995.
1.3
Clause 2 the relevant commences provisions provided in the Bill are –
- Sections 1, 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 16, 22 and 32 come into operation on the day after Royal Assent.
- Section 23 is deemed to have come into operation on 15 June 1994.
- Sections 27 and 28 are deemed to have come into operation on 1 July 1997.
- Section 14 is deemed to have come into operation on 12 November 1997.
- Sections 18, 20 and 21 are deemed to have come into operation on 20 October 1999.
- Section 15 comes into operation on 1 July 2000.
- Sections 4, 17, 19, 24, 25, 26, 29, 30, 31 and 33 come into operation on proclamation but not later than by 1 January 2001.
The Committee notes the retrospective provisions introduced by the Bill and further notes that they are beneficial provisions to injured workers. The Committee accepts that the effect of the provisions will mean additional liability for compensation to workers by the Workcover Authority and by self-insurers. The Committee notes the comments in the Second Reading Speech that premiums will be increased by 15 per cent to 2.18 per cent of wages and that the increase will be applied equally across all employers for the first year and will in later years revert to the employer experience rating formula currently in use. The Committee notes the major retrospective provision deals with the re-instatement of the right to bring common law actions for damages as from the day the Bracks Government took office on 20 October 1999. The retrospective application of these provisions is a matter for the consideration of the Parliament. |
Clause 3 amends the definition of "medical question" in section 5 of the Act to accommodate the amendments made by new section 134AB (common law actions) inserted by clause 18 of the Bill.
Clause 4 inserts a new section 5A(1A) into the Act to allow the inclusion of regular overtime and shift allowances for the first 26 weeks of payments, in the assessment of pre-injury average weekly earnings. It is intended that the new benefit will be introduced from 1 September 2000 and will apply to new claims on or after that date.
Clause 5 inserts new sections 45(1A), (1B) and (1C). Section 45 deals with the powers of the County Court to refer a medical question to a Medical Panel (the powers and functions of which are found in sections 63 to 68 of the Act). The effect of the amendment, whilst retaining the requirement that the County Court refers a medical question requested by a party to the Medical Panel, gives the Court the right to refer the question in such form as it thinks appropriate. It also allows the Court a discretion not to make such a referral where it is considered that the referral would constitute an abuse of process in all the circumstances. It also makes amendments that are consequential to the re-instatement of common law actions made by new section 134AB (clause 18).
Clause 6 inserts a new section 48(3) and provides that a consultant engaged to provide expert advice to a Medical Panel is competent to give evidence as to matters relating to that expert advice, but the consultant may not be compelled to give any such evidence.
Clause 7 inserts a new section 55A to permit, the Authority or a self-insurer to apply to the Senior Conciliation Officer for a medical question relevant to a claim for compensation by a worker to be referred by a Conciliation Officer to a Medical Panel in the course of the claims management process as distinct from the dispute resolution. The Authority or a self-insurer can only make such an application with the consent of the worker and in the absence of a dispute and the costs of such an application must be borne by the Authority or self-insurer.
Clause 9 amends section 63 to allow for the appointment of a Deputy Convenor and provides that the Deputy Convenor may, subject to the direction of the Convenor, exercise the functions and powers conferred on the Convenor by or under this Act and in the temporary absence of the Convenor, the Deputy Convenor has, and may exercise, the functions and powers conferred on the Convenor by or under the Act.
Clause 10 inserts a new section 63(6A) concerning the protection of consultants from legal proceedings, and provides –
A matter or thing done or omitted to be done in the provision of expert advice to a Medical Panel by a consultant engaged for that purpose does not, if the matter or thing was done or omitted in good faith, subject the consultant personally to any action, liability, claim or demand.
Clause 11 inserts new sections 65(6A) and (6B) requiring a person or body referring a medical question to a Medical Panel to submit a document to the Medical Panel specifying the injury or alleged injury to, or in respect of, which the medical question relates; the facts or questions of fact relevant to the medical question which the person or body is satisfied have been agreed and those facts or questions that are in dispute.
A person or body referring a medical question to a Medical Panel must submit copies of all documents relating to the medical question in the possession of that person or body to the Medical Panel.
Clause 12 substitutes a new section 65(8) providing that the Minister may for the purposes of ensuring procedural fairness in the procedures of the Medical Panels; and to facilitate the proper administration of the Medical Panels, issue guidelines as to the procedures of Medical Panels.
The Committee notes the following extract from the Second Reading Speech –
The common-law pre-litigation process will only commence once the degree of impairment has been assessed and will be modified to dovetail with the new process.
An essential aspect of these changes is that a worker will not be able to commence an application under the narrative serious injury test until the worker's level of impairment has been assessed.
Medical Panels are currently responsible for providing opinions on a range of medical questions in relation to statutory benefits. It is proposed to extend the role of medical panels to provide opinions on medical questions associated with the narrative serious injury test.
As is currently the case, the decisions of Medical Panels will be final and binding. The value of the Medical Panels is that independent experts determine medical questions and the degree of whole person impairment in a non-adversarial environment. As is currently the case the only appeal permitted will be on the basis that the Medical Panel has failed to afford procedural fairness or has breached other principles of administrative law.
Concerns have, however, been raised as to the operation of Medical Panels and whether or not they always afford procedural fairness. There have been a number of appeals on administrative law grounds.
To improve the operation of Medical Panels and to better enable them to take on their expanded role, the Bill makes the following amendments:-
the Minister's power to issue guidelines will be amended to make it clear that one of the purposes of the guidelines is to ensure that Medical Panels accord procedural fairness to the persons affected by the opinion;
In considering the clause the Committee also notes section 68(4) of the Act, which provides -
For the purposes of determining any question or matter, the opinion of the Medical Panel on a medical question referred to the Medical Panel is to be adopted and applied by any court, body or person and must be accepted as final and conclusive by any court, body or person irrespective of who referred the medical question to the Medical Panel or when the medical question was referred.
The Committee notes the amendment made by clause 12 seeks to ensure the proper administration and procedural fairness in the procedures of the Medical Panels. The Committee notes that ‘guidelines’ do not fall within the meaning of ‘statutory rule’ within the meaning of the Subordinate Legislation Act 1994, and are therefore not subject to the scrutiny of the Committee or disallowance by Parliament. Furthermore the Committee notes that it is the intention of the Regulation Review Subcommittee1 to examine the status of ‘guidelines’ as part of it’s current inquiry into the Subordinate Legislation Act 1994. Given the important subject matter of the guidelines and the legal effect of opinions rendered by Medical Panels pursuant to section 68(4) of the Act on workers rights to access compensation under the Act, the Committee will write to the Minister to recommend that these guidelines be subject to Parliamentary scrutiny. |
Clause 13 amends section 91 relating to the assessment of impairment for the purposes of the Act and will permit the A.M.A Guides (the American Medical Association Guides) (‘the Guides’) to be modified by regulations. The existing section 91(1)(a)(i) effectively provides that regulations would need to completely replace the Guides.
| The Committee notes the A.M.A. Guides may be modified by regulations under the Act, and as such the regulations may diminish or enhance the entitlements as to the degree of impairment as assessed by the Guides. In the event that entitlements are diminished by the regulations the Committee notes that the regulations are subject to the scrutiny of the Committee and ultimately subject to disallowance by the Parliament. |
Clause 14 inserts a new section 92A(8) and provides that in all circumstances, the dependent children of a deceased worker will be entitled to a share in the lump sum compensation available as well as a weekly pension. The amendment is retrospective to 12 November 1997.
The Committee notes the Second Reading Speech –
The Bill rectifies an unintended omission in the death benefits provisions of the Act (sections 92A to 92C), introduced as part of the new benefits structure commenced in November 1997. Currently, if a deceased worker does not leave a dependent spouse, but does leave a dependent child (who is not an orphan), that child, and any other dependent children, while eligible to a pension, are not eligible to a share in the lump sum available under section 92A.
To remedy that omission a new provision will be included in section 92A. Where this situation arises, the dependent child or children will be entitled to such share of the overall lump sum provided for a death (currently $176,310) as the County Court considers is reasonable and appropriate.
| The Committee notes the retrospective effect of the clause 14 to 12 November 1997 and that the provision seeks to rectify an unintended omission in the death benefits provisions in the Act. |
Clause 15 deals with compensation for non-economic loss. The clause amends the statutory lump sum benefits for workers unable to access common law and who have an assessed whole person impairment of 30 per cent or less from 1 July 2000. The minimum payment will be increased from $5,040 to $10,300 at 10 per cent and up to 30 per cent whole person impairment will be increased by $2,060 per percentage point of impairment above 10 per cent.
Clause 16 amends section 104B of the Act dealing with claims processes for entitlement to compensation under section 98C (compensation for non-economic loss), and whether the worker is deemed to have a serious injury within the meaning of the new section 134AB provisions. Claims, other than industrial deafness claims, may not be made earlier than 12 months after the date of the relevant injury unless the injury has stabilised.
Clause 16(2) substitutes a new section 104B(5)(a) to make it plain that the purpose of the independent assessment includes obtaining assessment of the degree of impairment for section 99C compensation purposes and whether the worker is deemed to have a serious injury for the purposes of the new common law provisions introduced by the Bill by new section 134AB.
Clause 16(3) inserts a new section 104B(5F) providing that if the worker was not 18 years of age at the time of the injury, the assessment of the impairment resulting from the injury can not be made until the worker attains the age of 18 years.
The Committee discussed the potential implications of clause 16(3) as they relate to the rights of injured workers under 18 years of age. The Committee will seek clarification from the Minister concerning any possible diminution of rights of young injured workers that may arise as a consequence of this new provision. The Committee wishes to clarify whether there may be any Limitations of Actions Act implications as a consequence of the bar on commencing actions until the worker attains the age of 18, and/or whether such claimants will be deprived of any indexation benefits or interest otherwise available pursuant to the Act. The Committee will also seek further general information concerning the policy reasons for excluding such workers from obtaining compensation under the Act within a reasonable period after a compensable injury. |
Clause 17 makes a number of amendments to section 104B of the Act requiring the worker to advise the Authority or self-insurer whether he or she wishes to receive the compensation assessed under sections 98C and 98E concerning compensation for non-economic loss. On such advise the Authority or self-insurer is required to pay the compensation, and thereafter the worker may not recover damages for pain and suffering in respect of the injury. If the worker does not so advise he or she remains free to pursue other avenues that may be available to recover such damages. If damages are awarded or a settlement is made the workers entitlement ceases. If no such damages or settlement results the worker may advise the Authority or self-insurer that he or she wishes to receive the compensation which will then be payable.
Re-instatement of Common Law Actions
Clause 18 [also refer to section 85 Constitution Act 1975 statement in 1.4 below] inserts a new Part 4 of the Act. The provisions have the effect of reintroducing the right of a worker and/or dependants to recover damages for a serious injury or death arising out of or in the course of, or due to the nature of, employment on or after 20 October 1999.
The new Division 8A consists of new sections 13AA to 13AF.
The Committee notes the following extract from the section 85 Constitution Act 1975 statement in the Second Reading Speech –
Clause 18, among other things, inserts new sections 134AA, 134AB, 134AC, 134AD and 134AE into the Accident Compensation Act 1985.
New sections 134AA and 134AB reinstate the right of an injured worker who is or may be entitled to compensation under the Accident Compensation Act 1985 in respect of an injury arising out of or in the course of, or due to the nature of, employment to recover damages in respect of the injury subject to limitations and conditions imposed by the sections as to date of injury, the application of the Transport Accident Act 1986, whether or not the injury is a serious injury within the meaning of section 134AB, the classes and amounts of damages which may be recovered, the discretion of the court to order costs and procedural requirements, including time limits.
In accordance with the other provisions of the Act as amended by the Bill, section 134AB(2) provides that a worker may recover damages in respect of an injury arising out of, or in the course of, or due to the nature of the employment, if employment of that nature was a significant contributing factor, and the injury is a serious injury and arose on or after 20 October 1999 and 134AB(3) provides that a worker may not bring proceedings in accordance with this section unless assessments of the degree of impairment of the worker have been made under section 104B.
Section 134AB(16) provides that if the assessment under section 104B of the degree of impairment of the worker as a result of the injury is less than 30 per centum, the person may not bring proceedings for the recovery of damages in respect of the injury unless the Authority or self-insurer is satisfied that the injury is a serious injury; and issues to the worker a certificate in writing consenting to the bringing of the proceedings, or a court, other than the Magistrates’ Court grants leave to bring a proceedings.
Section 134AB(37) provides a definition of ‘serious injury’ -
(a) permanent serious impairment or loss of a body function; or
(b) permanent serious disfigurement; or
(c) permanent severe mental or permanent severe behavioural disturbance or disorder; or
(d) loss of a foetus.
The expression 'long-term' has been removed from the new test and the word 'permanent' has been inserted by way of substitution. This is intended to reflect that a serious consequence is one which is permanent, meaning indefinitely for the foreseeable future.
By new section 134AB(38)(e) for the purposes of the assessment of ‘serious injury’ the new provisions introduces a concept of a 40 per cent threshold of loss of earning capacity measured as a continuing permanent loss of earning capacity at the date of the hearing of the application. The focus time period for determining the capacity to earn income on a before injury basis is limited to 3 years before the injury and 3 years after the injury. A separate ‘probable income’ test in applied to workers under 26 years at the date of the injury.
By new section 134AB(19) for the purpose of proving a loss of earning capacity in a serious injury application, the worker bears the onus of proving any inability to be retrained or rehabilitated or to undertake suitable employment or undertake any employment including alternative employment or further or additional employment and the extent of any such inability.
The definition of serious injury maintains the previous distinction between the requirement of a serious impairment or loss of a body function or serious disfigurement and a severe mental or behavioural disturbance or disorder. There is thus a higher threshold requirement for a mental or behavioural disturbance or disorder due to the degree of subjectivity involved in such a condition. The Bill does not define the meaning of the word 'severe' but the Court of Appeal in Mobilio v. Balliotis & Ors [1998] 3 VR 833 considered that the words 'serious' and 'severe' should not be equated and that the word 'severe' has a stronger meaning than the word 'serious'.
The assessment of serious injury is to be made at the time the application is considered. In accordance with the assessment of permanent impairment under the A.M.A Guides, 4th Edition, stabilisation must have occurred before an impairment determination can be made. The Bill provides that the determination of serious injury shall be made as at the date of the application. This is required to be consistent with the loss of earning capacity measurement being made at that date. For the purposes of the application, 'court' is defined to mean a court other than a Magistrates Court.
By new section 134AB(19) for the purposes of an application by a worker under section 134AB(16)(b) seeking leave to bring proceedings notwithstanding an assessment of less than a 30 per cent degree of impairment, the courts (not being the Magistrates’ Court) will be required to be satisfied that the evidence in support of the serious injury under the section 134AB(38) test has been met on the balance of probabilities.
The existing threshold caps for maximum and minimum common law claims awards in section 135A(7) in the Act are not amended by the Bill although the new amounts shown in the Bill include section 100 indexation.
The Bill introduces a new concept in relation to the worker having a limited entitlement to bring proceedings if, on the serious injury application, the court is not satisfied the worker has met both the pain and suffering and loss of earning capacity thresholds. If a worker satisfies the pain and suffering threshold but not the loss of earning capacity threshold, then the worker will be limited to an entitlement to bring common-law proceedings for the recovery of pain and suffering damages only. If, however, the worker satisfies the economic loss threshold, the worker will be entitled to bring proceedings for pain and suffering damages and economic loss damages.
New section 134AC will permit an appeal as of right to the Court of Appeal from a decision granting or refusing leave under new section 134AB(16)(b) in circumstances where such an appeal could only previously be made with leave of the Court of Appeal.
The Committee notes the relevant extract from the Second Reading Speech –
The Bill also amends the appeal process. Following certain dicta of the Full Court which were subsequently adopted by the Court of Appeal an employer requires leave to appeal before being able to institute an appeal whereas a worker does not require leave. The government considers that this distinction is one which is not sustainable as a matter of fairness as between the parties and particularly because of the importance of the curial role of the Court of Appeal. To introduce a consistent position between the parties, the Bill provides that leave to appeal shall not be required for any appeal to the Court of Appeal from a decision granting or refusing leave made on a serious injury application.
New section 134AD deals with the hearing of an appeal made to the Court of Appeal (the Court) under section 134AB(16)(b) and provides that the Court shall decide for itself whether the injury is a serious injury on the evidence and other material before the judge who heard the application and any other evidence the Court may receive under any other Act or rules of court.
The Committee notes the relevant extract from the Second Reading Speech –
Finally, the Bill requires the Court of Appeal to decide for itself whether an injury is a serious injury on the evidence and other material before the judge who heard the application. This effectively restores the task to be undertaken by a court of appeal to the principles established by Humphries v. Poljak. There the court followed the dicta of the majority as stated by the Full Court of the High Court in Warren v. Coombes (1979) 142CLR531 p.552, 'the duty of the appellate court is to decide the case, the facts as well as the law, for itself. In doing so it must recognise the advantages enjoyed by the judge who conducted the trial.
New section 134AE provides that the reasons given by the court in deciding an application under section 134AB(16)(b) shall not be summary reasons but shall be detailed reasons which are as extensive and complete as the court would give on the trial of an action.
The Committee notes the following extracts from the Second Reading Speech –
The necessity for a worker to satisfy either the pain and suffering or the economic loss threshold and the importance of the decision itself creates a need for detailed reasons to be given by a court in respect of each category of the application partly to determine if there is a right of appeal. That need, together with the decision of the Court of Appeal in Barlow & Anor v. Hollis (unreported, 17 March 2000), has caused the government to consider it is appropriate to include a provision in the bill that the reasons given by the court in deciding an application shall not be summary reasons, but shall be as extensive and complete as the court would give on the trial of an action. The government considers this is an issue of importance due to the need to be able to have the benefit of judgments of the court in relation to issues of fact and opinion.
Clause 19 [also refer to section 85 Constitution Act 1975 statement in 1.4 below] inserts new section 134AG allowing the Governor in Council by Order to make legal costs orders applying to new section 134AB prescribing costs that may be recovered by a legal practitioner acting on behalf of a worker in any claim, application or proceedings under the new section 134AB provisions.
Clause 21 [also refer to section 85 Constitution Act 1975 statement in 1.4 below] amends section 134A(1) effectively limiting the operation of the section which removed the common law right to bring a common law claim, to the period between 12 November 1997 and 20 October 1999. The Second Reading Speech refers to the handling of such intermediate period cases.
Clause 22 [also refer to section 85 Constitution Act 1975 statement in 1.4 below] substitutes a new section 135AC to provide less onerous time limits than those in the current Act applying to certain proceedings under sections 135 and 135A (dealing with pre 12 November 1997 common law claims).
Clause 23 [also refer to section 85 Constitution Act 1975 statement in 1.4 below] amends section 135B(1) dealing with pre 1 December 1992 injuries. The amendment inserts a new section 135B(1AA) to make it plain that the requirement that proceedings in respect of an injury arising before 1 December 1992 must be commenced before 30 June 1994 does not apply to proceedings in respect of an injury to which section 135A(2)(b) would otherwise apply. Section 135A(2)(b) deals with serious injuries that arose before that date but where the incapacity arising from the injury does not become known until that date or a later date.
Clause 24 inserts a new section 135D permitting a court, with the agreement of the parties, to order a structured settlement such as periodic payments funded by an annuity or other means.
Clause 26 inserts a new section 138B the effect of which will be to prevent a court from making an order for the payment of compensation for pain and suffering under section 86 of the Sentencing Act 1991 to order an offender to pay compensation for pain and suffering if the compensation would be for pain and suffering to a person arising from an injury or death in respect of which it appears to the court that the person has or may have an entitlement to compensation under the Act; and arising from an event that constitutes an offence against the Dangerous Goods Act 1985, the Occupational Health and Safety Act 1985 or the Equipment (Public Safety) Act 1994 or any regulations made under any of those Acts.
Clause 27 inserts new sections 7(9) and 59B(1A) into the Accident Compensation (WorkCover Insurance) Act 1993 to provide that neither a WorkCover insurance policy issued or deemed to have been issued under the Act nor a deemed contract of insurance indemnify an employer in respect of any liability of the employer to pay compensation for pain and suffering awarded under section 86 of the Sentencing Act 1991.
Clause 28 inserts a new section 94(2)(c) into the Transport Accident Act 1986 to provide that the TAC is not liable to indemnify any person in respect of liability to pay compensation for pain and suffering awarded under section 86 of the Sentencing Act 1991.
Clause 29 inserts a new section 107A into the Transport Accident Act 1986 to prevent a court from making an order pay compensation for pain and suffering under section 86 of the Sentencing Act 1991, if the pain and suffering arose out of an injury or death in respect of which it appears to the court that the person has or may have an entitlement to compensation under the Act; and the relevant offence is against the Road Safety Act 1986 or any regulations made under that Act.
Clause 30 makes amendments to the Dangerous Goods Act 1985.
Clause 30(2) inserts a new section 11(1A) providing -
The Authority may appoint any person who is employed in the Department of Natural Resources and Environment under the Public Sector Management and Employment Act 1998 to be an inspector for the purposes of a matter the subject of a sub-delegation under section 14(2A) with respect to activities carried out under the Mineral Resources Development Act 1990 and the Extractive Industries Development Act 1995.
Clause 30(4) inserts a new section 14(2A) to provide -
The Authority may by instrument in writing delegate to an authorised person* all or any of the powers, functions, authorities or discretions of the Authority (except this power of delegation) (a) to the extent that they relate to the manufacture, supply, sale, transfer, transport, storage, handling, use or disposal of explosives; and (b) only with respect to activities carried out under the Mineral Resources Development Act 1990 and the Extractive Industries Development Act 1995.
*Defined by new section 14(2B) as the Chief Mining Inspector and the Chief Inspector of Quarries under their respective Acts.
| The Committee notes the delegation provisions inserted by clause 30 which make amendments to section 11 and 14 of the Dangerous Goods Act 1985 and accepts that they are appropriately limited and defined delegations for the purposes of the Act. |
1.4
Report to the Parliament pursuant 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.
Clause 32 inserts a new section 252D into the Act and declares that it is the intention of sections 134AA, 134AB, 134AC, 134AD, 134AE (as inserted by clause 18), 134AG (as inserted by clause 19), 134A (as inserted by clause 21), 135AC (as inserted by clause 22) and 138B (as inserted by clause 23), to alter or vary section 85 of the Constitution Act 1975.
Clause 33 inserts a new section 132B into the Transport Accident Act 1986 and declares that it is the intention of section 107A as inserted by clause 29 of the Bill to alter or vary section 85 of the Constitution Act 1975.
The Committee notes the Second Reading Speech –
In conclusion I make the following statements under section 85 of the Constitution Act 1975 of the reasons why sections 134AA, 134AB, 134AC, 134AD, 134AE, 134AG, 134A, 135AC and 138B of the Accident Compensation Act 1985, as inserted or amended by this Bill, alter or vary section 85 of the Constitution Act 1975.
Clause 18, among other things, inserts new sections 134AA, 134AB, 134AC, 134AD and 134AE into the Accident Compensation Act 1985.
New sections 134AA and 134AB reinstate the right of an injured worker who is or may be entitled to compensation under the Accident Compensation Act 1985 in respect of an injury arising out of or in the course of, or due to the nature of, employment to recover damages in respect of the injury subject to limitations and conditions imposed by the sections as to date of injury, the application of the Transport Accident Act 1986, whether or not the injury is a serious injury within the meaning of section 134AB, the classes and amounts of damages which may be recovered, the discretion of the court to order costs and procedural requirements, including time limits.
The reason for imposing these limitations and conditions, which have the effect of limiting the jurisdiction of the Supreme Court, is that they are necessary in order to give effect to the government's policy objective of restoring access to damages for work related injuries occurring on and after 20 October 1999 for seriously injured workers.
New section 134AC has the effect of permitting an appeal as of right to the Court of Appeal from a decision granting or refusing leave made on an application under new section 134AB(16)(b). Without this amendment, an appeal to the Court of Appeal from such a decision could only be made by leave of the Court of Appeal.
New section 134AD requires that, on the hearing of an appeal from a decision on an application under new section 134AB(16)(b), the Court of Appeal shall decide for itself whether the injury is a serious injury on the evidence and other material before the judge who heard the application and on any other evidence which the Court of Appeal may receive under any other act or rules of court.
New section 134AE requires that the reasons given by the court (which could be the Supreme Court) in deciding an application under new section 134AB(16)(b) shall not be summary reasons but shall be detailed reasons which are as extensive and complete as the court would give on the trial of an action.
The reason for these limitations of the jurisdiction of the Supreme Court is to ensure that decisions on applications for leave under section 134AB(16)(b), which are critical to the intended operation of the new common-law provisions, receive the appropriate level of judicial scrutiny.
Clause 19 inserts new section 134AG into the Accident Compensation Act 1985.
This new section empowers the Governor in Council to, by order in council, make a legal costs order specifying the legal costs that may be recovered by a legal practitioner acting on behalf of a worker in respect of any claim, application or proceedings under new section 134AB and prescribing or specifying any matter or thing required to give effect to the legal costs order.
New section 134AG and any legal costs order made under that section will have full force and effect notwithstanding anything to the contrary in the Legal Practice Act 1996, the Supreme Court Act 1986 or the County Court Act 1958 or in any regulation, rules, order or other document made under any of those acts.
The reason for this limitation of the jurisdiction of the Supreme Court is that the government wishes to make provision for a more direct mechanism for regulating legal costs recoverable by a practitioner acting on behalf of workers in relation to the operation of the common-law provisions introduced by this Bill.
Clause 21 amends section 134A(1) of the Accident Compensation Act 1985 so as to limit the preclusion from recovery of damages imposed by that provision to damages in respect of injuries arising out of or in the course of, or due to the nature of, employment on or after 12 November 1997 but before 20 October 1999.
This limitation of the jurisdiction of the Supreme Court is necessary to implement the government's decision to reintroduce access to damages for work-related injuries occurring on or after 20 October 1999.
Clause 22 substitutes a new section 135AC into the Accident Compensation Act 1985.
The existing section 135AC imposes certain time limits within which proceedings in accordance with section 135 or 135A of the act must be commenced.
The new section imposes a less onerous time limit for those cases coming within paragraph (a) of the section.
The reason for this restriction of the jurisdiction of the Supreme Court is to provide for a well-defined but reasonable time frame for finalising the majority of actions for damages in respect of work-related injuries occurring prior to 12 November 1997.
Clause 26 inserts a new section 138B into the Accident Compensation Act 1985.
This new section operates to prevent a court (including the Supreme Court) from making an order for the payment of compensation for pain and suffering under section 86 of the Sentencing Act 1991 if the pain and suffering arises from an injury or death in respect of which the person concerned has or may have an entitlement to compensation under the Accident Compensation Act 1985 and the relevant offence is against the Dangerous Goods Act 1985, the Occupational Health and Safety Act 1985, the Equipment (Public Safety) Act 1994 or any regulations made under any of those acts.
The reason for this limitation of the jurisdiction of the Supreme Court is to give effect to government policy that, in the cases referred to, compensation for pain and suffering under the Sentencing Act should not be available.
I make the following statement under section 85 of the Constitution Act 1975 of the reason why section 107A of the Transport Accident Act 1986, as inserted by this bill, alters or varies section 85 of the Constitution Act 1975.
This new section operates to prevent a court (including the Supreme Court) from making an order for the payment of compensation for pain and suffering under section 86 of the Sentencing Act 1991 if the pain and suffering arises from an injury or death in respect of which the person concerned has or may have an entitlement to compensation under the Transport Accident Act 1986 and the relevant offence is against the Road Safety Act 1986 or any regulations made under that act.
The reason for this limitation of the jurisdiction of the Supreme Court is to give effect to government policy that, in the cases referred to, compensation for pain and suffering under the Sentencing Act should not be available.
| The Committee is of the view that the proposed section 85 provisions inserted by the Bill are appropriate and desirable in all the circumstances. |
The Committee makes no further comment.
2.1
The Bill was introduced into the Legislative Council on 11 April 2000 by the Honourable Marsha Thomson MLC. The Second Reading Speech was delivered on 12 April 2000.
2.2
The purpose of the Bill is to amend the Adoption Act 1984 (the Act) to -
- give effect to the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption;
- give effect to certain bilateral arrangements for intercountry adoption;
- deal with miscellaneous matters.
2.3
Clause 2 the Act comes into operation on proclamation but not later than by 1 January 2002.
Part 2 - Hague Convention
Clause 4 inserts a new Part IVA into the Act consisting of new sections 69A to 69S (consisting of three (3) Divisions) dealing with adoptions under the Hague Convention.
Division 1- Court Orders and Recognition of Adoptions
New section 69A deals with the adoption of a child in Victoria who is to live in a Convention country and provides that a person who is habitually resident in a Convention country; and wishes to adopt a child who is habitually resident in Victoria may apply to the Court for an order for the adoption of the child. Certain pre-requisites and conditions must be complied with before such an adoption can take place.
New section 69B resembles 69A and deals with the adoption in Victoria of a child from a Convention country and provides that a person who is habitually resident in Victoria and wishes to adopt a child who is habitually resident in a Convention country may apply to a Victorian Court for an adoption order. As with section 69A, certain pre-requisites and conditions must exist before such an adoption can take place.
New section 69E provides that where a child, who is habitually resident in a Convention country, is adopted by a person who is habitually resident in another Convention country, and an adoption compliance certificate issued in the Convention country in which the adoption is granted is in force for the adoption, the adoption will be recognised with effect on and from the day the certificate becomes effective.
New section 69H allows the Court to order the termination of the legal relationship between a child and the child’s parents immediately before the adoption, if the laws of the relevant Convention country do not provide that an adoption has that effect.
New section 69J provides that where a person wishes to adopt a child in a Convention country, and is on the register of approved persons kept by the Secretary or the principal officer of an approved agency, the State Central Authority or an accredited body must prepare a report that complies with article 15 of the Hague Convention.
Division 2 - State Central Authority
New sections 69K, 69L and 69M deal with the functions of the State Central Authority under the Hague Convention, who in Victoria is the Secretary to the Department of Human Services (the Secretary).
New section 69M is a delegation power providing -
The State Central Authority may, by instrument, delegate any power or function of the State Central Authority, other than this power of delegation, to any employee or class of employee in the Department of which the Secretary is department head.
| The Committee notes the delegation provision and accepts that it is a defined and appropriate delegation power to give effect to the purposes of the Act. |
Division 3 - Accredited bodies
New section 69N provides that an approved agency, or an organization that has applied for approval as an approved agency, may apply to the State Central Authority for accreditation as an accredited body for the purposes of the Hague Convention. And section 69O, 69P and 69Q deal with the power of the State Central Authority to accredit a body as an approved agency; to renew or suspend it for a specified period, or revoke its accreditation.
New section 69S provides that the State Central Authority must publish notice in the Government Gazette of a number of matters listed in that section such as applications under section 69N for accreditation; applications under section 69R(1) for renewal of accreditation; suspension or revocations of accreditation under section 69P.
Clause 5 makes a number of consequential amendments related to the implementation of the Hague Convention in respect to adoption
Clause 6 substitutes a new section 65 of the Act to provide that in Part IV of the Act dealing with the recognition of adoptions, a reference to a country includes a reference to a part of a country but does not include a reference to a Convention country. The New Part IVA will cover convention countries.
Clause 8 substitutes a new Schedule to the Act being the Hague Convention entitled –
"Convention On Protection Of Children And Co-Operation In Respect Of Intercountry Adoption"
Part 3 - Bilateral Arrangements
Clause 9 inserts a new Part IVB into the Act dealing with bilateral arrangements for intercountry adoptions from certain prescribed countries. The new Part consists of new sections 69T to 69Y. The new provisions mirror existing Commonwealth regulations.
Recognition of intercountry adoptions
New section 69U provides that an adoption in a prescribed overseas jurisdiction of a child who is habitually resident in that jurisdiction by a person who is habitually resident in Australia is recognised if the adoption is granted in accordance with the laws of that prescribed overseas jurisdiction; and an adoption certificate is in force in relation to the adoption.
New section 69V provides that if an overseas adoption is recognised under section 69U, then, for the purposes of the laws of Victoria, the adoption has the same effect as an adoption order under the Act.
New section 69W provides that if the Secretary of the Department of Human Services (the Secretary) considers that an adoption recognised under section 69U is manifestly contrary to public policy, taking into account the best interests of the child to whom the adoption relates, the Secretary may apply to the Court for a declaration that the adoption is not recognised.
New section 69Y provides that if a person wishes to adopt a child in a prescribed overseas jurisdiction; and is on the register of approved persons kept by the Secretary or the principal officer of an approved agency the Secretary or principal officer may send an assessment report on the person to the adoption authority of the prescribed overseas jurisdiction.
Clause 10 sets out consequential amendments to the Act related to the intercountry adoption amendments made by new sections 69T to 69Y.
Part 4 – Miscellaneous Amendments
Clause 11 inserts new sections 13 and 13A into the Act essentially replicating regulations 12, 13, 14 and 15 in the Adoption Regulations 1998. Those regulations will then be revoked. The Explanatory Memorandum points out that it is considered more appropriate that important matters concerning the approval of applicants as fit and proper persons to adopt children and the maintenance of a registers of such approved persons, be placed in the Act rather than in the regulations.
Clause 12 substitutes a new section 14 in the Act strengthening the provisions relating to the wishes of the child. If appropriate to the child’s age and understanding the child must receive counselling from an approved counsellor as to the effects of the adoption. As far as practicable, the wishes of the child will be given due consideration. A person who has given counselling to a child under these provisions must provide a written report to the Court. Note, the previous provisions in section 14 contained no counselling requirements or a requirement of consideration of a counselling report by the Court.
Clause 14 amends section 19 of the Act dealing with the discharge of adoption orders. New sections 19(5A) and 19(9) are inserted providing that –
(5A) The Court shall not make an order for the discharge of an adoption order unless the Court is satisfied that the welfare and interests of the child would be promoted by the discharge of the adoption order.
(9) The Court may allow any of the following persons to appear and to address the Court (either personally or by a legal practitioner) at the hearing of an application for the discharge of an order for the adoption of a child--
(a) the child;
(b) a natural parent of the child;
(c) an adoptive parent of the child;
(d) the Secretary;
(e) if the adoption was arranged by an adoption agency, the principal officer of that agency;
(f) any other person whom the Court determines has a sufficient interest in the matter.
Courts powers to impose and vary conditions of adoption order
Clause 16 substitutes a new section 60 and will allow for the addition of conditions to an adoption order that was made without conditions. Note, in its existing form section 60 only allows for the variation of conditions in adoption orders having conditions attached to them. The Court must be satisfied that the wishes of the child have been ascertained and given due consideration with regard to the child’s age and understanding before making such a variation.
Clause 17 inserts a new section 107(1A) to provide that a person, or their legal representative, referred to in section 19(9) (as inserted by clause 14 above) is not excluded from the hearing of an application for discharge of an adoption order, as would otherwise be the case by virtue of the provision for in-camera proceedings pursuant to section 107 of the Act.
The Committee makes no further comment.
Agricultural and Veterinary Chemicals (Control of Use) (Amendment) Bill
3.1
The Bill was introduced into the Legislative Council on 4 April 2000 by the Honourable Candy Board MLC. The Second Reading Speech was delivered on 5 April 2000.
3.2
The purpose of the Bill is to amend the Agricultural and Veterinary Chemicals (Control of Use) Act 1992 (the Act) to provide for the labelling of meal derived from material of animal origin.
3.3
Clause 2 the provisions of the Bill come into operation on proclamation but not later than 30 May 2001.
Clause 3 inserts a definition into section 4 of the Act for ‘meal of animal origin’ into the Act and inserts references to ‘meal of animal origin’ in the definitions of ‘advice note’, ‘label’, and ‘package’ to ensure that meal of animal origin can be the subject of the labelling provisions contained in Part 3 of the Act.
Clause 4 inserts a new section 20 dealing with the labelling of meals of animal origin and provides –
A person who manufactures meal of animal origin must not sell the meal to another person unless the meal is accompanied by a label or advice note that complies with the regulations. Penalty - In the case of a corporation, 400 penalty units. In any other case, 200 penalty units.
Clause 5 amends section 27 to ensure that there is sufficient regulation making power with respect to the labelling of meals of animal origin.
| The Committee accepts that the amendments to the regulation making power are necessary and appropriate to give effect to the purposes of the Act. |
The Committee makes no further comment.
Chinese Medicine Registration Bill
4.1
The Bill was introduced into the Legislative Assembly on 5 April 2000 by the Honourable John Thwaites MLA with the Honourable Steve Bracks MLA. The Second Reading Speech was delivered on 6 April 1999.
4.2
The purposes of the Bill are to –
- protect the public by providing for the registration of, and investigation into the professional conduct and fitness to practice of practitioners of Chinese medicine and dispensers of Chinese herbs,
- regulate Chinese medicine and herbal dispensing services;
- regulate the advertising of Chinese medicine and herbal dispensing services;
- establish a Chinese Medicine Registration Board of Victoria and a Chinese Medicine Registration Board Fund;
- amend the Drugs, Poisons and Controlled Substances Act 1981; and
- amend other Acts regulating health practitioners.
The Committee notes the comments in the Second Reading Speech –
The Commonwealth and State Health Ministers agreed that Victoria should take the lead to establish a model of regulation. An extensive consultation process since 1995 has demonstrated considerable support for this initiative, and a recognition that the time has come to regulate in the public interest this growing area of health care provision. This legislation will provide a model for other jurisdictions around the world to follow. Victoria should be proud that this act establishes world best practice.
4.3
Clause 2 the Bill commences on proclamation but not later than by 1 December 2002.
| The Committee will write to the Minister to seek further information concerning the policy reasons behind the two and a half year delayed commencement provision provided by clause 2 of the Bill. |
Clause 3 provides for various definitions used throughout the Act including for ‘unprofessional conduct’.
Clause 4 provides that a person may apply for registration as any or all of the following: (a) a Chinese herbal medicine practitioner; (b) an acupuncturist; (c) a Chinese herbal dispenser. Before registration the Board may require evidence of insurance and other information pursuant to section 21.
Clause 5 deals with the qualifications necessary to gain registration under the Act.
Clause 6 sets out the grounds for grant and refusal of applications for registration as a Chinese medicine practitioner or a Chinese herbal dispenser.
Clause 7 a specific registration may be given to a person who holds qualifications which are insufficient to achieve general registration.
Clause 9 where the Board proposes to refuse registration or impose conditions or limitations on registration the Board must notify the applicant of such, and the applicant is entitled to make submissions about the proposal.
Reasons to be given for refusal to register.
Clause 10 the Board must give reasons for refusing an application, including a statement that the applicant may seek a review of the decision.
Clause 16 deals with registration obtained by fraud or misrepresentation.
Clause 17 deals with the requirement of the keeping of a formal register of practitioners under the Act.
Clause 18 deals with certificates to registered practitioners granted by the Board. And clause 18(3) provides that where a practitioner’s registration is suspended, cancelled or a condition, limitation or restriction has been imposed the practitioner must return the certificate of registration to the Board.
Clause 21 provides that if a person has claimed damages or other compensation from a registered practitioner for alleged negligence unless a court orders that the terms of an order are not to be disclosed, the practitioner must inform the Board within 30 days of such an order being made. Further, practitioners must inform the Board if they are committed for trial for any indictable offence or been found guilty of such an offence.
Part 3 – Complaint procedure
Clause 22 a person may make a complaint about a practitioner or a former registered practitioner to the Board.
Clause 23 the Board must notify a complaint against a practitioner to the Health Services Commissioner (‘the Commissioner’) if it is of a kind which may be made under the Health Services (Conciliation and Review) Act 1987. The Commissioner may refer the matter back to the Board or deal with the matter itself.
Clause 24 where a matter is to dealt with by the Board a preliminary investigation into the complaint may be made, or it may determine that the complaint is frivolous or vexatious.
Clause 25 upon the completion of a preliminary investigation the Board may determine to hold either an informal or a formal hearing.
Clause 26 the Board, on it’s own motion may hold a formal or informal hearing without a preliminary investigation.
Board’s powers
Clause 27 where the Board holds a preliminary investigation or a formal or informal hearing it may suspend the registration of a practitioner if it is of the opinion that there is a serious risk that the health and safety of the public will be endangered.
Clause 28 if the Board believes the ability of a practitioner may be affected because of: (a) physical or mental health, (b) incapacity or, (c) the alcohol or drug dependency of the practitioner, the Board may appoint one of its members or a member of the staff of the Board to conduct a preliminary investigation.
Clause 29 the person appointed under clause 28 above may ask the practitioner to agree to undergo a medical examination. Clause 30 and 31 make provision for a medical examination and reports of such medical examinations under clause 29.
Clause 33 the Board may refer the matter to a formal hearing.
Clause 34 a registered practitioner may request the imposition of certain restrictions and limitations to be placed on their practice
Clause 36 the Board may immediately suspend registration pending a determination of a formal hearing where the continuation of the practice would pose a serious risk to the public health.
Clauses 37 to 41 deal with informal hearings. Clause 38(4) provides that the Governor in Council may on the recommendation of the Minister approve persons who are not members of the Board who may be appointed to be members of the panel constituting an informal hearing.
Clause 39(d) legal representation is not permitted at an informal hearing but the practitioner may be accompanied by another person. The informal hearing is closed to the public. Clause 41 provides that an informal hearing panel may only make a limited number of determinations such as recommend counselling, issue a caution or reprimand or require the practitioner to undertake further training.
Clause 42 provides that if before an informal hearing is concluded the practitioner fails to attend the informal hearing or requests a formal hearing or the panel is of the opinion that a formal hearing should be held the panel must abandon the informal hearing and refer the matter to a formal hearing.
Clause 43 a practitioner may request a formal hearing to review a determination of an informal hearing.
Clauses 44 to 49 deal with formal hearings. Clause 45 provides that a formal hearing panel must consist of three members of the Board of whom one must be a lawyer. None of the members may have participated in a preliminary investigation or an informal hearing. As with informal hearings the Governor in Council on the recommendation of the Minister may approve persons who are not members of the Board to serve on such panels. Clause 46 provides that a formal hearing is open to the public and representation is permitted. Clause 47 deals with the conduct of a formal hearing including closing a formal hearing to members of the public or prohibiting publication or broadcasting of proceedings for good cause. Clause 48 provides that the panel may make certain determinations such as reprimands, cautions, cancellation of registration and the imposition of conditions and the imposition of fines of up to $10,000.
Clause 50 an investigation into a registered practitioner may continue after that person’s registration ceases.
Clause 51 at either an informal or a formal hearing the panel is not bound by the rules of evidence but is bound by the rules of natural justice.
Clause 55 requires the panel to give reasons for the making of a determination.
Notification of determination by Board
Clause 56 if the Board makes a determination imposing conditions, limitations, restrictions on the registration of a practitioner or suspends or cancels the practitioners registration the Board must give notice of the determination –
- in the Government Gazette;
- to the Chinese medicine registration authorities in all other States or Territories of the Commonwealth and in New Zealand;
- to the Health Services Commissioner;
- to the practitioners employer (if applicable); and
- to a Chinese medicine registration authority outside Australia or New Zealand, where the Board has received a request for information about the person in respect of whom the determination has been made.
Clause 56(3) provides that "No action for defamation lies against the Board or its members for giving a notice under this section". [Refer to 4.4 for section 85 Constitution Act 1975 comments].
Privacy provisions
Clause 57 prohibits the publication or broadcasting of certain information that may lead to the identification of a complainant or witness, or that would identify the practitioner concerned prior to a determination being made.
Clause 58 deals with the terms and conditions of appointment of panel members.
Review of Board’s decisions
Clause 59 provides that a person affected by the relevant decision may apply to the Victorian Civil and Administrative Tribunal (VCAT) for review of the decision.
Clauses 61 to 66 deal with offences under the Act. Clause 61 a person must not claim to be registered in a specific division or claim to be qualified if that person is not so registered or qualified. A person may not use certain titles if not registered or permitted to do so under the provisions of the Act.
Clause 62 deals with the offences of fraud and forgery and clause 63 deals with misleading or false advertising. Clause 64 permits the Governor in Council on the recommendation of the Board to publish advertising guidelines in the Government Gazette. Clause 65 a court may order corrective advertising for a contravention of section 63.
Clause 66 provides for exemptions to section 61 in emergency situations for advice or services by persons registered interstate or in New Zealand.
Clauses 67 to 79 provide for the establishment of the Board to be called the Chinese Medicine Registration Board of Victoria and provides for its powers, functions, membership, terms of office, staff procedures and like matters.
Immunity of Board
Clause 80 deals with immunity from personal liability of Board members or the person responsible for keeping the register, for things done or omitted in good faith. Liability attaches instead, to the Board itself.
Clause 82 allows the Board to delegate certain of its functions other than the power to delegate and those functions enumerated in subsections (c) to (e), to a member of the Board or a member of it’s staff.
| The Committee is satisfied that the delegation powers provided in the Bill are appropriate in the circumstances. |
Clauses 83 to 85 provide for the establishment of the Chinese Medicine Registration Board Fund and deal with related investment powers and financial matters.
Powers of search and seizure
Clause 88 provides for powers of entry with a warrant pursuant to the rules and procedures applying under the Magistrates’ Court Act 1989.
Clause 89 a person executing a search warrant must announce that he or she is authorised by the warrant to enter the premises. An announcement need not be made in specified circumstances requiring urgent entry to premises.
Clause 90 if the occupier of the premises is in attendance the person must identify themselves to the occupier with their identification card and give the occupier a copy of the warrant.
Clause 91 if a document or other thing is seized under the warrant upon request of the occupier a copy of the document or record must be given to the occupier as soon as practicable after the seizure. Where no copy is requested by the occupier the person executing the warrant must provide a receipt for things seized under the warrant.
Clause 92 the Board may set, vary or amend fees and must publish such fees in the Government Gazette and a Victorian newspaper.
Clause 93 the Governor in Council may make regulations to further the purposes of the Act including prescribing penalties for the breach of regulations of up to 10 penalty units ($1,000).
| The Committee notes the regulation making powers provided in the Bill and believes that they are appropriate to give effect to the purposes of the Bill. |
Clause 94 is a transitional provision and will permit the Board to register a person, for a limited time of three years from the commencement of the section, who although not meeting the practitioner qualification requirements of section 5, is in the opinion of the Board a person holding appropriate qualifications/experience and is professionally competent to act.
Clauses 96 to 107 makes various consequential amendments to the Drugs, Poisons and Controlled Substances Act 1981 and Clauses 108 to 111 make consequential amendments to other related Acts.
The Schedule
The Schedule provides for amendments to Acts to allow various registered health practitioners to use certain protected titles without having to be registered by the Chinese Medicine Registration Board provided that their own registration board is satisfied that they have satisfactorily completed a course of study or training which qualifies them to practise Chinese medicine.
4.4
Report to the Parliament pursuant section 4D(b)(iii)of the Parliamentary Committees Act 1968 concerning a repeal, alteration or variation of section 85 of the Constitution Act 1975.
Clause 56(3) provides that –
No action for defamation lies against the Board or its members for giving a notice under this section.
The Committee notes that the terms of the clause appear to exclude the jurisdiction of the Supreme Court from adjudicating in actions for defamation against the Board or its members. The Committee notes that no section 85 statement was made in the Second Reading Speech nor is there a clause in the Bill declaratory of a section 85 amendment, alteration or variation in the usual manner. The Committee also notes that an almost identical Bill, which lapsed on the dissolution of the 53rd Parliament, was introduced in the Legislative Assembly in May 1999 containing a section 85 statement in the Second Reading Speech and a section 85 clause in the Bill for the identical clause, also numbered 56(3) as appears in the present Bill. Further the Committee notes that other similar health related Acts such as the Dental Practice Act 1999 and the Physiotherapists Registration Act 1998 contain section 85 statements for the identical or similar immunity provision. The Committee is of the view that the terms of clause 56(3) clearly raises an issue as to the jurisdiction of the Supreme Court within the terms of reference of the Committee pursuant to section 4D(b)(iii) of the Parliamentary Committees Act 1968.2 The Committee will write to the Minister to seek clarification as to the intended application of clause 56(3) and why it was thought unnecessary to provide a section 85 provision in this instance. |
The Committee makes no further comment.
Disability Services (Amendment) Bill
5.1
The Bill was introduced into the Legislative Assembly on 22 March 2000 by the Honourable Christine Campbell MLA with the Honourable Lyn Kosky MLA. The Second Reading Speech was delivered on 4 April 2000.
5.2
The purposes of the Bill are to –
- amend the Disability Services Act 1991 (the Act) to provide for community visitors and to make other minor amendments to that Act;
- amend the Intellectually Disabled Persons' Services Act 1986 to make further provision for community visitors and to make other minor amendments to that Act.
5.3
Clause 2 Part 1 comes into operation on the day after Royal Assent the remaining provisions come into operation on proclamation but not later than by 1 July 2001.
Amendments to the Disability Services Act 1991
Clause 5 inserts new definitions including "community visitor" to mean ‘a person appointed or deemed to be a community visitor under Division 5 of Part 5 of the Intellectually Disabled Persons' Services Act 1986’.
Clause 6 inserts a new Part 3 into the Act being new sections 7 to 11, dealing with community visitors with respect to residential service providers.
New section 7 provides for the functions of community visitors to include consideration of the following matters –
(a) the appropriateness and standard of facilities for the accommodation, physical well-being and welfare of residents; and
(b) the adequacy of opportunities and facilities for the recreation, occupation, education and training of residents; and
(c) whether services are being provided in accordance with the principles specified in Schedule 2*; and
(d) any complaint made to a community visitor by a resident.
*Schedule Two
PRINCIPLES
The principles which are to be furthered with respect to persons with disabilities are -
(a) persons with disabilities are individuals who have the inherent right to respect for their human worth and dignity; and
(b) persons with disabilities, whatever the origin, nature, type and degree of disability, have the same basic human rights as other members of Australian society; and
(c) persons with disabilities have the same rights as other members of Australian society to realise their individual capacities for physical, social, emotional and intellectual development; and
(d) persons with disabilities have the same right as other members of Australian society to services which will support their attaining a reasonable quality of life; and
(e) persons with disabilities have the same right as other members of Australian society to participate in decisions which affect their lives; and
(f) persons with disabilities receiving services have the same right as other members of Australian society to receive those services in a manner which results in the least restriction of their rights and opportunities; and
(g) persons with disabilities have the same right of pursuit of any grievance in relation to services as have other members of Australian society.
New section 8 provides that a community visitor or a panel of community visitors may visit a residential service provider with or without notice at such times and for such periods as the community visitor or panel thinks fit. The Minister is empowered to direct a community visitor or a panel of community visitors (the visitor) to visit a residential service provider.
New section 9 deals with the powers of inspection of a community visitor visiting a residential service provider the visitor may –
(a) inspect any part of the premises; and
(b) see any resident; and
(c) make enquiries relating to the admission and care of residents; and
(d) inspect any document relating to any resident and any records required to be kept by or under this Act.
The senior staff member of the residential service provider must provide the visitor with such reasonable assistance as the visitor requires to perform or exercise that power, duty or function effectively.
Offences
Section 9(3)(a) – Any member of staff or management who unreasonably refuses or neglects to render assistance when required to do so or; 9(3)(c) assaults, obstructs, hinders, threatens, intimidates or attempts to obstruct or intimidate a community visitor visiting a residential service provider is guilty of an offence under the Act.
Section 9(3)(b) provides that any member of the staff or management of a residential service provider, who does not give full and true answers to the best of that person's knowledge to any questions asked by a community visitor in the performance or exercise of any power, duty or function under this Act is guilty of an offence against the Act and is liable to a penalty of not more than 25 penalty units ($2,500).
The Committee considered the provisions in clause 6 inserting a new section 9(3)(b) into the Act. The Committee notes that in its present form proposed new section 9(3)(b) as inserted by clause 6 may be considered as abrogating the privilege against self-incrimination. The provision does not require the community visitor to give a warning to the person that the person’s answer may incriminate them and render them subject to a pecuniary penalty. The Committee does however note that an identical provision already exists in a similar health related Act the Intellectually Disabled Persons’ Services Act 1986. The Committee is however concerned to clarify the effect of the clause in respect to the privilege against self-incrimination. The Committee resolved to write to the Minister to seek further information concerning the privilege against self- incrimination and the operation of the powers given to a community visitor pursuant to this clause. |
New section 10 provides that any resident in a residential service provider, or any person on behalf of the resident, may request the senior staff member to arrange for the resident to be seen by a visitor and the senior staff member must within 7 days of receiving a request advise one of the community visitors for the region that a request has been made.
After seeing a resident requesting to be seen, the community visitor may submit a report to the Secretary containing such recommendations as they considers appropriate.
New section 11 provides that the senior staff member must keep a record in the prescribed form of visits by community visitors.
Part 3 - Amendments to the Intellectually Disabled Persons' Services Act 1986
Clause 8 amends section 51(f) by removing the reference to ‘aversive therapy’. The Committee notes that such therapy was discontinued in 1997, and the reference to it in that Act is now redundant.
Clause 9 amends section 54(d) and removes the same redundant reference to ‘aversive therapy’ and inserts the additional functions conferred on visitors ‘under any other Act’.
The Committee makes no further comment.
Electronic Transactions (Victoria) Bill
6.1
The Bill was introduced into the Legislative Assembly on 5 April 2000 by the Honourable John Brumby MLA with the Honourable Steve Bracks MLA. The Second Reading Speech was delivered on 6 April 2000.
6.2
The purposes of the Bill is to establish a regulatory framework for the use of electronic transactions in commerce and removes legal barriers that may inhibit the use of electronic communications. The Bill –
- recognises that transactions effected electronically are not by that reason alone invalid;
- provides for the meeting of certain legal requirements as to writing and signatures by electronic communication;
- permits documents to be produced to another person by electronic communication;
- permits the recording and retention of information and documents in electronic form;
- provides for the determination of time and place of dispatch and receipt of electronic communications;
- stipulates when an electronic communication will bind its purported originator.
The Bill is modelled on the Commonwealth’s Electronic Transactions Act 1999, which in turn adopted most of the provisions of the United Nations Model Law on Electronic Commerce 1996. The Commonwealth law was enacted in December 1999, and it is expected that the other State and Territory jurisdictions will soon follow suit. The Bill has been developed through a national scheme to promote consistent and comprehensive legislation. The model legal framework has been adopted in a number of international jurisdictions.
The Committee notes the following passages from the Second Reading Speech –
In the Victorian context, the Bill's objectives are to facilitate and promote business and community confidence in the use of electronic transactions. It will enable business, the community and government to deal with each other via electronic means, with the clear support of the law. It will enable contractual dealings, such as offers, acceptances and invitations to be conducted electronically. The Bill is a cornerstone of a sound legal and regulatory environment to support the uptake of
e-commerce in Victoria.The Bill will also enable business and the community to deal electronically with government. The Government is working to deliver its services online, to improve efficiency and service to all Victorians. The legislation will allow complex administrative transactions to be delivered online.
The Bill will remove existing legal obstacles to conducting electronic transactions, and put in place default rules for the time and place of sending and receipt of electronic communications.
Two principles inform this legislation. The first of these is the principle of functional equivalence, meaning that a transaction should not be discriminated against or held invalid simply because it was made using electronic media, a most important principle. The second principle, again extremely important, is technology-neutrality, meaning that the law should not provide advantages to or favour any particular kind of technology.
The Bill adopts a minimalist approach to the regulation of electronic transactions. It establishes the basic rule that a transaction is not invalid because it took place by means of one or more electronic communications. It contains specific provisions stating that a requirement or permission under a law of Victoria for a person to provide information in writing, to sign a document, to produce a document, to record information or to retain a document can be satisfied by electronic communication, subject to minimum criteria being satisfied. Those criteria establish objective tests that are based on criteria of reliability and reasonableness. The Bill also makes clear that conduct of electronic transactions will require the prior consent of parties. That consent may be inferred from conduct or given subject to certain conditions.
The Bill also gives legal effect to electronic signatures. A person may use an electronic signature to satisfy a legal requirement to provide a signature.
This comprises an electronic method that identifies the person and shows their approval of the contents of the document to a reliable level in the circumstances. There are a number of technologies currently available that may be capable of performing these functions. They have differing levels of reliability - a few examples are passwords and PIN numbers, fingerprints and thermograms, and public key cryptography - commonly known as digital signatures.
The Bill seeks to encourage industry to develop reliable solutions to e-commerce security issues. It also provides guidance to users as to which information security functions are required for certain purposes. As such, the Bill also aims to raise awareness about the salient electronic transactions issues to be addressed by the parties. This is reflected particularly in the default rules for time and place of sending and receipt of electronic communications. The default rules aim to take a commonsense approach to determining where and when an electronic communication was sent and received. Also, consumer protection rules continue to apply to the same extent in the electronic environment.
A regulation-making power has been included to enable the government to respond to any issues that may arise in future.
The Committee notes that there are extensive detailed clause notes attached to the Explanatory Memorandum of the Bill. The Committee resolved to write to the Minister to express its appreciation for the efforts of his Department in providing useful material assisting Members and the Committee in their consideration and scrutiny of the complex provisions in the Bill. |
6.3
Clause 2 the Act comes into operation on 1 September 2000.
Clause 3 contains various definitions used in the Act. Clause 4 sets out the objectives of the Act. Clause 5 provides an outline of the Act. Clause 6 declares the Act binds the Crown.
Clause 7 provides that subject to any other more specific provisions in the Act, a transaction is not invalid because it took place wholly or partly by means of one or more electronic communications.
Regulations may provide that the law does not apply in certain cases
The regulations may provide that the general rule does not apply to a specified transaction or specified class of transactions or to a specified Victorian law.
Requirement of ‘writing’
Clause 8 where under a law a person is required or has permission to give information in writing the clause will allows a person to satisfy the requirement or permission by giving the information in electronic form, where at the time of the giving of the information it is reasonable to expect that the information would be readily accessible so as to be useable for subsequent reference and, if the person to whom the information is to be given consents to it being given in electronic form. There need not be express consent and consent may be inferred from a persons conduct.
‘Giving of information’ is defined as including but not limited to the following: (a) making an application; (b) making or lodging a claim; (c) giving, sending or serving a notification; (d) lodging a return; (e) making a request; (f) making a declaration; (g) lodging or issuing a certificate; (h) making, varying or cancelling an election; (i) lodging an objection; (j) giving a statement of reasons.
‘Signature’ requirement.
Clause 9 subject to other specific laws specifying particular requirements for electronic signatures the section provides that where the signature of a person is required, that requirement is taken to have been met in relation to an electronic communication if a method is used to identify the person and to indicate the person's approval of the information communicated, and having regard to all the relevant circumstances at the time the method was used, the method was as reliable as was appropriate for the purposes for which the information was communicated, and the person to whom the signature is required to be given consents to that requirement being met by way of the method used.
Production of document
Clause 10 deals with the production of a document and provides that where by or under a Victorian law, a person is required or permitted to produce a document that is in the form of paper, an article or other material, that requirement is taken to have been met if the person produces, by means of an electronic communication, an electronic form of the document, where –
- having regard to all the relevant circumstances at the time the communication was sent, the method of generating the electronic form of the document provided a reliable means of assuring the maintenance of the integrity of the information contained in the document; and
- at the time the communication was sent, it was reasonable to expect that the information contained in the electronic form of the document would be readily accessible so as to be useable for subsequent reference; and
- the person to whom the document is required to be produced consents to the production, by means of an electronic communication, of an electronic form of the document.
Recording and retention of documents
Clause 11 deals with the recording and retention of information and documents.
Clause 11(1) provides that if, by or under a law of Victoria a person is required to record information in writing, that requirement is taken to have been met if the person records the information in electronic form, where –
- at the time of the recording of the information, it was reasonable to expect that the information would be readily accessible so as to be useable for subsequent reference; and
- if the regulations require that the information be recorded on a particular kind of data storage device, that requirement has been met.
Clause 11(2) provides that if, by or under a law of Victoria, a person is required to retain, for a particular period, a document that is in the form of paper, an article or other material, that requirement is taken to have been met if the person retains, or causes another person to retain, an electronic form of the document throughout that period, where –
- having regard to all the relevant circumstances at the time of the generation of the electronic form of the document, the method of generating the electronic form of the document provided a reliable means of assuring the maintenance of the integrity of the information contained in the document; and
- at the time of the generation of the electronic form of the document, it was reasonable to expect that the information contained in the electronic form of the document would be readily accessible so as to be useable for subsequent reference; and
- if the regulations require that the electronic form of the document be retained on a particular kind of data storage device, that requirement has been met throughout that period.
Exemptions from the requirements
Clause 12 deals with exemptions from the requirements of the provisions in the Bill and provides that the regulations may be made to exempt specified requirements or classes of requirement or specified class of requirements, specified permission or specified class of permissions, or specified Victorian laws from any or all of the provisions in clauses 8 to 11.
Deemed time and place of communication
Clause 13 recognises that it is important to determine the time and place of dispatch and receipt of information for many existing rules of law and provides that for the purposes of a law of Victoria, if an electronic communication enters an information system outside the control of the originator, then, unless otherwise agreed between the originator and the addressee of the electronic communication, the dispatch of the electronic communication is deemed to occur at the time it enters that information system.
Generally, the clause sets out default rules that apply to time and place of dispatch and receipt, absent any specific arrangements between the parties.
The regulations may provide that the clause does not apply to a specified electronic communication or specified class of electronic communications or to a specified law of Victoria.
Clause 15 provides that the Governor in Council may make regulations for or with respect to any matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to the Act.
| The Committee notes the regulation making powers provided in the respective sections of the Bill and accepts that they are appropriate to give effect to the purposes of the Act. |
The Committee makes no further comment.
Environment Protection (Enforcement and Penalties) Bill
7.1
The Bill was introduced into the Legislative Assembly on 12 April 2000 by the Honourable Sherryl Garbutt MLA with the Honourable Bob Cameron MLA. The Second Reading Speech was delivered on 13 April 2000.
7.2
The purpose of the Bill is to –
(a) amend the Environment Protection Act 1970 (the Act) to –
- increase the penalties that apply to offences under that Act and to make a number of offences in that Act indictable offences; and
- empower courts to order offenders under that Act to publicise their offences and to carry out specified projects; and
- enable the Authority to regulate the supply of wood heaters and similar items;
- make various other changes to the enforcement provisions of that Act;
(b) make minor amendments to the Alpine Resorts (Management) Act 1997, the Magistrates' Court Act 1989 and the Environment Protection (Amendment) Act 1999.
7.3
Clause 2 Part 1 and sections 9, 10, 12, 15, 16, 18, 20, 21 and 23 to 27 come into operation on the day after Royal Assent. Section 19 comes into operation on 1 July 2000. Part 2 and sections 11, 13, 14, 17 and 22 come into operation on 9 July 2000.
Clause 3 increases penalties for a number of offences under the Act and makes a number of offences indictable offences and also increases the penalties for those offences. The Schedule in the Bill lists the penalty increases.
Clause 4 amends Schedule 4 of the Magistrates' Court Act 1989, and provides that indictable offences (other than an offence under section 59E) under the Act may be tried summarily, but the maximum fine that the Court may impose in respect of a single offence is 1,000 penalty units.
Clause 5 inserts a new section 67AC to provide that a court may impose, in addition to, or instead of, any other penalty, an order that the defendant do one or more of the following –
(a) take any action specified by the court to publicise
(i) the offence;
(ii) any environmental or other consequences arising or resulting from the offence;
(iii) any penalties imposed, or other orders made, as a result of the commission of the offence;
(b) take any action specified by the court to notify one or more people or classes of people of the matters listed in paragraph (a) (for example, to publish a notice in an annual report or to distribute a notice to people affected by the offence);
(c) carry out a specified project for the restoration or enhancement of the environment in a public place or for the public benefit (even if the project is unrelated to the offence);
(d) carry out a specified environmental audit of the activities carried on by the person.
Clause 6 amends section 71(1)(o) of the Act to increase the penalties for offences against regulations made under that section.
Clause 7 amends Schedule A of the Act to increase the penalties which apply to certain offences against the Act when infringement notices are issued.
Clause 9 amends section 2(1) of the Act to provide that the Act binds the Crown in right of Victoria and, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.
Clause 13 substitutes new section 20C(1), (2) and (3) dealing with policy considerations relating to the issue, transfer or amendment of an authorisation. Subparagraph (3)(b) providing –
(3) The Authority may refuse to issue, transfer or amend an authorisation
(b) if the person applying for the issue or amendment, or in the case of a transfer, the person to whom the authorisation is to be transferred -
(i) has been found guilty of one or more offences against this Act or any other law in Victoria or elsewhere; and
(ii) as a result, the person is, in the opinion of the Authority, not a fit and proper person to hold the authorisation, or in the case of an application for amendment, to hold the authorisation in the amended form; or
(c) if the person applying for the issue, transfer or amendment is a corporation, and any director or person who is concerned in the management of the corporation--
(i) has been found guilty of one or more offences against this Act or any other law in Victoria or elsewhere; and
(ii) as a result, the director or other person is, in the opinion of the Authority, not a fit and proper person to be involved in a corporation holding the authorisation, or in the case of an application for amendment, holding the authorisation in the amended form.
The Committee considered the provisions in clause 13 in detail and expressed concern at the breadth of the provisions in respect to the test to be applied by the Authority in determining who is a ‘fit and proper person’ for the purposes of section 20C of the Act.
The Committee was of the opinion that the words ‘or any other law of Victoria or elsewhere’ provide a basis for a very broad and undefined administrative power and as such may contravene section 4D(a)(ii) of the Parliamentary Committees Act 1968 as an instance of a provision that makes rights, freedoms or obligations dependent upon insufficiently defined administrative powers.
Whilst the Committee appreciates the difficulty in limiting or defining the scope of a workable test for relevant matters to be considered under the ‘fit and proper person’ test, it is nevertheless of the view that the current test fails to give the Authority or an applicant any guidance as to the relevant and proper matters that may be considered in assessing who is a ‘ fit and proper person’ for the purposes of the Act.
The Committee is of the view that in its current form the Authority would be invested with an unlimited discretion to consider any and every offence as being relevant for the purpose of a ‘fit and proper person’ inquiry, further it invests an unlimited open ended power to seek disclosure from applicants of all offences, no matter how trivial or unrelated they may be.
The Committee will write to the Minister to seek her opinion whether the powers vested in the Authority by this provision could be redrafted to give guidance to both the Authority and applicants, defining relevant matters that may be considered in exercising the particular discretion and thus defining the relevant offences that need to be disclosed under the Act.
Clause 14 substitutes a new 27A(1) in the Act broadening the application of industrial waste offences and substantially increases penalties (by a multiple of 12) for those offences.
Clause 20 inserts new sections 53P and 53Q.
New section 53P is a regulation making power and permits regulations concerning products that may damage the environment. The regulations may be made concerning the -
- labelling of appliances, products or things that are capable of emitting waste and requiring them to indicate whether they comply with a specified standard of environmental performance;
- prohibiting of the supply of any appliance, product or thing that does not meet a specified standard of environmental performance, or that emits waste in excess of a specified amount or concentration; or that is not labelled in accordance with a regulation.
- installation of any appliance, product or thing that is capable of emitting waste.
Offence to fail to comply with regulations.
New section 53Q provides that a person who supplies any appliance, product or thing contrary to any regulation made under section 53P is guilty of an indictable offence. Penalty: 2,400 penalty units, plus in the case of a continuing offence, 1200 penalty units for each day the offence continues after conviction or after service by the Authority on the defendant of notice of contravention of this section (whichever is the earlier).
| The Committee notes the additional regulation making powers inserted by clause 20 of the Bill and accepts that they are appropriate to give effect to the purposes of the Act. |
Clause 23 amends section 71 dealing with the general regulation making powers and inserts a new paragraph (na).
(na) prescribing the fees chargeable or payable for doing any act or providing any service for the purposes of the regulations and prescribing the person, people or body to which the fees are payable, and providing for the distribution of those fees and for the refund of fees in specified circumstances.
Clause 24 inserts a new section 71(2B) dealing with additional regulation making exemption powers providing –
Any such regulation may provide that the Authority may exempt a person or thing or a class of people or things from having to comply with the regulation either wholly or partly, and may permit the Authority to impose conditions in relation to exemptions.
| The Committee notes the additional regulation making powers inserted by clauses 23 and 24 of the Bill and accepts that they are appropriate to give effect to the purposes of the Act. |
Clause 26 substitutes a new section 5 in the Alpine Resorts (Management) Act 1997 to provide that for the purposes of the Emergency Management Act 1986 and the Environment Protection Act 1970 the board of an alpine resort is deemed to be a municipal council; and the alpine resort is deemed to be a municipal district.
The Schedule
The Schedule lists the amendments made to the penalty provisions in the Act by clause 3.
The Committee makes no further comment.
Equal Opportunity (Breastfeeding) Bill
8.1
The Bill was introduced into the Legislative Assembly on 5 April 2000 by the Honourable Christine Campbell MLA with the Honourable Steve Bracks MLA. The Second Reading Speech was delivered on 6 April 2000.
8.2
The purpose of the Bill is to amend the Equal Opportunity Act 1995 (the Act) to prohibit discrimination on the basis of breastfeeding.
The Committee notes the Second Reading Speech –
This Bill amends the Equal Opportunity Act 1995 to make discrimination against breastfeeding mothers unlawful. Breastfeeding is an important and basic act of nurture that should be encouraged in the interests of maternal and child health.
Laws that protect and encourage breastfeeding should be supported by the Victorian Parliament. There are well-documented health advantages to breastfeeding.
Society needs to move towards ensuring a mother has a right to breastfeed her baby any place she has the right to be.
The World Health Organisation and UNICEF have established as one of their major goals the encouragement of breastfeeding. They seek to increase the incidence and duration of breastfeeding globally, as set forth in the Innocenti declaration on the protection, promotion and support of breastfeeding, adopted in 1990 by 32 governments and 10 United Nations agencies. The Innocenti declaration states:
As a global goal for optimal maternal and child health and nutrition, all women should be enabled to practise exclusive breastfeeding and all infants should be fed exclusively on breast milk from birth to four to six months of age.
Thereafter, children should continue to be breastfed, while receiving appropriate and adequate complementary foods, for up to two years of age or beyond. This child feeding ideal is to be achieved by creating an appropriate environment of awareness and support so that women can breastfeed in this manner.
As legislators we can clearly indicate through this legislation that Victorian policy-makers, program funders and maternal and child health supporters have our endorsement for measures that support breastfeeding. In this legislature we unequivocally state that discrimination against breastfeeding mothers is illegal.
Breastfeeding provides significant health benefits to both the mother and child. Breastfeeding provides maternal protection from osteoporosis, urinary tract infections and breast and other cancers.
The social pressures of modern society weigh against the choice of breastfeeding and lead new mothers with demanding time schedules to opt for formula feeding to avoid embarrassment and social ostracism. Many women can no longer stay at home after giving birth. They continue to play an active role in community life. That lifestyle does not allow for nursing mothers to always feed in private -- indeed neither should we expect them to do so.
Any genuine promotion of family values should encourage public acceptance of this most basic act of nurture between a mother and her child, and no mother should be made to feel incriminated or socially ostracised for breastfeeding her child. Breastfeeding is not a dirty act that should be hidden. Nor is it just a lifestyle choice. It is a significant health choice.
This Bill will protect nursing mothers. It can help increase the incidence and duration of breastfeeding by improving its positive public perception and acceptance.
As a result of this amendment Victoria will join Tasmania, Queensland and the Northern Territory in specifically prohibiting discrimination on the ground of breastfeeding.
From time to time there has been public debate about whether the Equal Opportunity Act 1995 sufficiently protects breastfeeding mothers from discrimination. Prior to the last election the Labor Party promised that if elected it would amend the Equal Opportunity Act to ensure that it did. This Bill does this by including breastfeeding as a protected attribute under the Equal Opportunity Act.
The amendment is intended to apply to both acts of discrimination on the basis that a woman is a breastfeeding mother although not breastfeeding at the time the act of discrimination occurs and acts of discrimination that occur because a mother is breastfeeding at that particular time. The amendment is not intended to limit any attributes already existing in the Equal Opportunity Act, but rather to ensure that breastfeeding mothers are fully protected from discrimination.
The Nursing Mothers Association of Australia has received complaints from breastfeeding mothers who have been discriminated against in hotels, public transport, cinemas and restaurants. Discrimination against breastfeeding women in such venues will be outlawed by this legislation. They support this legislation.
The Australian Medical Association (AMA) recognises that breastfeeding is a natural act that is beneficial to the health of the child and mother. The AMA supports this amendment.
One can only hope that those that find breastfeeding offensive will now realise that they have to acknowledge the advantages of breastfeeding and thus support nursing mothers. However, if they are so offended by breastfeeding, they have the simple choice of averting their eyes or absenting themselves.
One objective of the Equal Opportunity Act 1995 is to promote equality of opportunity by eliminating, as far as is possible, discrimination against people. Breastfeeding mothers will be supported by this legislation.
The Equal Opportunity Act needs strengthening by specifically adding the attribute of breastfeeding in section 6.
This simple change will give breastfeeding mothers clear and unequivocal protection from discrimination.
8.3
Clause 2 provides that the provisions in the Bill come into operation on the day after Royal Assent.
Clause 3(1) inserts a definition of "breastfeeding" as including the act of expressing milk.
Clause 3(2) amends section 6 of the Act to include ‘breastfeeding’ as an attribute on which it is unlawful to base discrimination.
Clause 4 inserts a new section 223 into the Act being a transitional provision providing that a complaint may be lodged after the commencement of the provisions in the Bill alleging a contravention of the Act constituted by discrimination on the basis of breastfeeding, whether the alleged contravention took place before or after the commencement of the provision in the Bill, provided that the complaint had not been the subject matter of a complaint lodged with the Commission before that commencement.
Section 108(1)(c) of the Act provides that if the Commission considers that a complaint relates to an alleged contravention of the Act that took place more than 12 months before the complaint was lodged the Commission may decline to entertain the complaint.
A complaint lodged with the Commission before the commencement of the provisions in the Bill but not finally disposed of immediately before that commencement must continue to be dealt with under the Act as if the provisions in clause 3 of the Bill had not come into operation.
The Committee received written submissions from Mr Richard Eager, Solicitor, Ms Debra Coombs, Barrister and Ms Fiona McLeod, Barrister (on behalf of the Victorian Bar Council) and thanks them for their comments on both Equal Opportunity Bills. The Committee notes that the transitional provisions in clause 4 may be interpreted as a retrospective provision and as such may contravene section 4D(a)(i) of the Parliamentary Committees Act 1968 as a possible undue trespass to rights and freedoms. The Committee notes the Second Reading Speech, as is mindful of submissions made to the Committee that the provision may simply codify the existing state of the law, that is, it is presently unlawful to discriminate on the grounds or attribute of ‘breastfeeding’ under the current head of ‘status as a career’ in section 6 of the unamended Act and the amendment does no more than re-state that position as a separate attribute. The Committee resolved to write to the Minister to clarify that this is so and that no retrospective liability is intended to arise. |
The Committee makes no further comment.
Equal Opportunity (Gender Identity and Sexual Orientation) Bill
9.1
The Bill was introduced into the Legislative Assembly on 12 April 2000 by the Honourable Rob Hulls MLA with the Honourable John Brumby MLA. The Second Reading Speech was delivered on 13 April 2000.
9.2
The purpose of the Bill is to amend the Equal Opportunity Act 1995 (the Act) to prohibit discrimination on the basis of gender identity or sexual orientation.
The Committee notes the Second Reading Speech –
This Bill implements two of the government's pre-election commitments designed to provide equal opportunity for all Victorians. The Bill is the first step in a process of reform that will assist all Victorians to live free from unjustified discrimination.
Throughout this year the government will review the Equal Opportunity Act to ensure that it allows Victorians to effectively combat unwarranted discrimination and provides for the existence of an equal opportunity commission that is truly independent of government. It is proposed to introduce any amendments that result from the review in the spring 2000 session of Parliament. The government is also reviewing other Victorian legislation to remove provisions that have the effect of discriminating against those in same-sex relationships.
Sexual orientation
The Equal Opportunity Act currently prohibits discrimination on the basis of a person's lawful sexual activity.
When the Equal Opportunity Act was enacted, the second-reading speech made it clear that the attribute of 'lawful sexual activity' was intended to prohibit discrimination against homosexuals and lesbians. However, the use of the term 'lawful sexual activity' has been criticised as it is seen to focus on sexual practices to attract redress under the Act. This is offensive to many homosexual, lesbian and bisexual Victorians who believe that it implies that they are more likely to be involved in immoral or unlawful sexual activity.
This Bill prohibits discrimination against a person on the basis of his or her 'sexual orientation'. This is defined to mean homosexuality - including lesbianism - bisexuality or heterosexuality.
The amendment is not intended to limit the current operation of the Equal Opportunity Act in any way but rather to ensure that people are fully protected from discrimination on the basis of their sexual orientation.
The attribute of 'lawful sexual activity' will remain in the Act. A person's lawful sexual activities, no matter what their sexual orientation is, are a private matter and should not form the basis of discrimination against that person.
Gender identity
This Bill introduces the attribute of 'gender identity' into the Equal Opportunity Act and extends the protection against discrimination afforded by the Act to people whose gender identity does not match their physical sex at birth.
The umbrella term 'transgender' is commonly used to describe such people. The term 'transgender' describes a range of people such as those who have undergone gender reassignment surgery, those who have not undergone surgery but seek to live as a member of the other sex and those who temporarily adopt the characteristics of the other sex such as cross-dressers.
The term 'gender identity' is used in the bill, however, because the amendment is designed to protect not only transgender people but also people born of indeterminate sex who seek to live as a member of a particular sex.
The Equal Opportunity Act currently does not prohibit discrimination on the basis of a person's gender identity. This undermines the objective of the Act to eliminate, as far as possible, discrimination against people as there is much evidence to suggest that transgender people and people of indeterminate sex are subject to considerable discrimination in their public lives.
An estimated 95 per cent of people who make the transition from one sex to the other lose their job because of that transition.
Those who do not lose their job are frequently subject to a decline in the quality of their working life when their employers and work colleagues become aware they are transgender. Many transgender people are also subject to constant negative reactions from service providers, accommodation providers and others as they go about their public life. Transgender people are also the victims of high levels of verbal and physical abuse and violence. This evidence emphasises the need for government to take action so that transgender people may fully participate in the community, free from discrimination.
The Bill recognises that each person whose gender identity does not match their physical sex will deal with the issue in their own personal way over a period of time. This may range from a person occasionally dressing in a style usually associated with their non-birth sex to a person undergoing gender reassignment surgery if they are able to.
The Bill contains a wide definition of 'gender identity'. It is defined to include all people who identify as members of the sex they were not born by assuming characteristics of that sex whether by means of medical intervention, style of dressing or otherwise or by living or seeking to live as members of that sex. It also includes identification by a person of indeterminate sex as a member of a particular sex.
The Bill amends section 66 of the Equal Opportunity Act to provide that it is not unlawful to exclude a person on the basis of their gender identity from participating in a competitive sporting activity in which the strength, stamina or physique of competitors is relevant.
New South Wales, South Australia, Tasmania, the Northern Territory and the Australian Capital Territory already prohibit discrimination against transgender people.
The Western Australian Parliament has also recently passed legislation prohibiting this type of discrimination. The protection in the New South Wales legislation extends to people of indeterminate sex. This Bill will provide long overdue protection from discrimination to transgender people and people born of indeterminate sex in Victoria. This is consistent with the objective of the Equal Opportunity Act to promote recognition and acceptance of everyone's right to equality of opportunity.
9.3
Clause 2 the Act comes into operation on proclamation but not later than by 1 January 2001.
Clause 4 inserts additional definitions into the Act including "gender identity" to mean -
(a) the identification by a person of one sex as a member of the other sex (whether or not the person is recognised as such) –
(i) by assuming characteristics of the other sex, whether by means of medical intervention, style of dressing or otherwise; or
(ii) by living, or seeking to live, as a member of the other sex; or
(b) the identification by a person of indeterminate sex as a member of a particular sex (whether or not the person is recognised as such)–
(i) by assuming characteristics of that sex, whether by means of medical intervention, style of dressing or otherwise; or
(ii) by living, or seeking to live, as a member of that sex.
Clause 4 also inserts a definition for "sexual orientation", meaning –
homosexuality (including lesbianism), bisexuality or heterosexuality.
Clause 5 inserts into section 6 the additional attributes on the basis of which discrimination is prohibited. The full list of attributes is reproduced to set the additional new attributes (underlined) in context of the existing attributes.
(a) age;
(ab) breastfeeding
(ac) gender identity;
(b) impairement;
(c) industrial activity;
(d) lawful sexual activity;
(e) marital status;
(ea) parental status or status as a carer;
(f) physical features;
(g) political belief or activity;
(h) pregnancy;
(i) race;
(j) religious belief or activity;
(k) sex;
(l) parental status or status as a carer.;(l) sexual orientation;
(m) personal association (whether as a relative or otherwise) with a person who is identified by reference to any of the above attributes.
Competitive sports exclusion.
Clause 6 amends section 66 of the Act by inserting "or with a gender identity" after the word "sex" to permit the exclusion of persons fitting that attribute from participating in competitive sports activities where strength, stamina or physique of competitors is relevant.
In the Committees consideration of the Bill it noted that the only exception dealt with by the Bill relates to ‘competitive sporting activity’. Following careful consideration of the possible ambit of the additional new attributes the Committee identified at least 3 circumstances where exceptions may be desirable or necessary to take into account a balancing of rights and freedoms of others. The Committee raises these concerns in the form of three questions , as follows – 1.Would a hotel contravene the Act if it excludes a trans-gender person from the ladies toilet? 2. Would a hospital contravene the Act if it refuses to admit a trans-gender person into a female ward? 3.Would the State contravene the Act if it refused a trans-gender offender sentenced to a term of imprisonment, a demand or request by the offender to be incarcerated in a female prison? In the absence of any necessary or appropriate specific exemptions under the Act similar to the exemption relating to ‘competitive sporting activity, the Committee will write to the Attorney-General to clarify whether any persons rights and freedoms may be adversely affected by these provisions. |
Transitional provisions
Clause 7 inserts a new section 224 into the Act and is a transitional provision providing that a complaint alleging discrimination on the basis of ‘sexual orientation’ can be brought whether or not the alleged incident took place before or after the provisions of the Bill come into operation, provided that no other complaint has been brought in respect to the alleged incident. Complaints already brought must be determined as if clause 5 had not come into operation.
Section 108(1)(c) of the Act provides that if the Commission considers that a complaint relates to an alleged contravention of the Act that took place more than 12 months before the complaint was lodged the Commission may decline to entertain the complaint.
The Committee notes that the transitional provisions in clause 7 may be interpreted as a retrospective provision and as such may contravene section 4D(a)(i) of the Parliamentary Committees Act 1968 as a possible trespass to rights and freedoms. The Committee notes the Second Reading Speech, as is mindful of submissions made to the Committee that the provision may simply codify the existing state of the law, that is, it is presently unlawful to discriminate on the grounds or attributes of ‘sex’ and ‘lawful sexual activity’ in section 6 of the unamended Act and the amendment does no more than declare that position as separate attributes. The Committee resolved to write to the Minister to clarify that this is so and that no retrospective liability is intended to arise. |
The Committee makes no further comment.
Federal Courts (Consequential Amendments) Bill
10.1
The Bill was introduced into the Legislative Council on 11 April 2000 by the Honourable Marsha Thomson MLC. The Second Reading Speech was delivered on 12 April 2000.
10.2
The purpose of the Bill is to make further amendments consequential on the matters dealt with by the Federal Courts (State Jurisdiction) Act 1999 or by Commonwealth legislation relating to federal courts and tribunals.
The Bill –
- removes from State Acts provisions purporting to confer State jurisdiction on federal courts;
- removes from State Acts any provisions purporting to apply the Commonwealth Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act) as a law of the State;
- makes changes to the State cross-vesting schemes that are complimentary to amendments to Commonwealth legislation proposed by the Jurisdiction of Courts Legislation Amendment Bill that was introduced in the Parliament of the Commonwealth in March 2000.
The Committee notes the Second Reading Speech –
The Bill which I am now bringing before the House addresses several outstanding issues in the various Acts affected by the High Court's decision. This Bill, while technical in nature, achieves three main things.
Firstly, it removes the now-invalid provisions, which purported to confer State jurisdiction on federal courts. Since the commencement of the Federal Courts (State Jurisdiction) Act 1999 relevant matters are now being heard in the State's Supreme Court.
Secondly, it removes the now-invalid provisions which purported to apply the Commonwealth Administrative Decisions (Judicial Review) Act as a law of the State.
Finally, this Bill brings the cross-vesting provisions - both generally and in relation to corporations - into line with the revision of the schemes proposed by the commonwealth and complements relevant provisions in the recently introduced Commonwealth Jurisdiction of Courts Legislation Amendment Bill. In particular the Commonwealth Bill provides that judicial review of actions and decisions of Commonwealth officers and authorities will usually continue to be dealt with by the Federal Court, although the State Supreme Court is given equivalent federal jurisdiction in limited circumstances. In addition, provision is made for special federal matters -- as defined in the Commonwealth Jurisdiction of Courts (Cross-vesting) Act -- to be heard in the Supreme Court in certain limited circumstances.
…
Like the Federal Courts (State Jurisdiction) Act, this Bill has been developed under the auspices of the Standing Committee of Attorneys-General. This Bill amends seven pieces of legislation, each piece being part of a national scheme.
It is anticipated that all other States will pass legislation along these lines in the near future.
The Bill provides a workable solution to problems created by the Re Wakim decision. However, the Standing Committee of Attorneys-General assisted by State and Territory Parliamentary Counsel and Solicitors-General, are continuing to work to find a long-term solution to address Re Wakim.
10.3
Clause 2 provides that Part 1 and section 6 come into operation on the day after Royal Assent. The remaining provisions of the Bill come into operation on proclamation.
The Committee notes that the Bill forms part of a national response to the High Courts decision in Re Wakim (1999) 73 ALJR 839.
The Committee notes the comments in the Second Reading Speech that it is anticipated that all other States will pass legislation along these lines in the near future. The Committee also notes the provisions in the Explanatory Memorandum that the remaining provisions will be proclaimed to accord with the same timetable as is set for the commencement of related provisions in the Commonwealth Jurisdiction of Courts Legislation Amendment Act 2000 and the South Australian Gas Pipelines Access (South Australia) (Federal Court) Amendment Act 2000. Given the nature of this national scheme legislation the Committee does not report adversely on the use of a commencement by proclamation clause in this instance. |
Clauses 3 to 6 make the necessary consequential amendments to the Agricultural and Veterinary Chemicals (Victoria) Act 1994.
Clauses 7 to 9 make the necessary consequential amendments to the Competition Policy Reform (Victoria) Act 1995.
Clauses 10 to 19 make the necessary consequential amendments to the Corporations (Victoria) Act 1990.
Clauses 20 to 23 makes the necessary consequential amendments to the Gas Pipelines Access (Victoria) Act 1998 (the Act).
Clause 22 inserts a new section 20(1A) into the Act and provides –
Despite sub-section (1), the Supreme Court does not have jurisdiction to make a declaration or order about the validity, or affecting the operation, of a decision of a relevant Minister, relevant Regulator or arbitrator in relation to a cross-boundary distribution pipeline unless this State has been determined to be the scheme participant most closely connected to the pipeline.
Clauses 24 to 27 make the necessary consequential amendments to the Jurisdiction of Courts (Cross-vesting) Act 1987 (the Act).
Clauses 28 and 29 make the necessary consequential amendments to the National Crime Authority (State Provisions) Act 1984.
Clauses 30 to 32 make the necessary consequential amendments to the New Tax System Price Exploitation Code (Victoria) Act 1999.
10.4
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.
Clause 23 declares that it is the intention of section 20(1A) as inserted by clause 22 of the Bill to alter or vary section 85 of the Constitution Act 1975; and
Clause 27 declares that the amendments made to section 6 of the Act (dealing with "special federal matters") by clause 24 are intended to alter or vary section 85 of the Constitution Act 1975.
The Committee notes the section 85 statement in the Second Reading Speech –
It is the intention of section 23 in Part 5 and section 27 in Part 6 of the Bill to alter or vary section 85 of the Constitution Act 1975. I therefore make the following statements under section 85(5) of the Constitution Act of the reasons for altering or varying that section. These are predominantly technical provisions.
Part 5 of the Bill amends the Gas Pipelines Access (Victoria) Act 1998 to remove invalid references to the Federal Court. As the various state Supreme Courts will now be the relevant forums in which disputes under this act are heard, the Ministers responsible for the gas pipelines access scheme have requested that the Act clarify in which state matters arising should be heard. As a result, it is proposed that in certain cross-boundary disputes the matter will be heard in the State which has been determined to be the one most closely connected to the pipeline. If the pipeline crosses a Victorian boundary but the State which has the greatest interest is not Victoria, this part provides that the Victorian Supreme Court will not have the jurisdiction to make certain declarations or orders relevant to the dispute. Although it would seem an appropriate course of action for matters to be heard in the State which has the greatest interest in the pipeline at the centre of the dispute, expressly providing for such an approach does result in some limitation on the jurisdiction of the Victorian Supreme Court.
Part 6 of the Bill amends the Jurisdiction of Courts (Cross-vesting) Act 1987. In particular it makes new provision for the hearing and transfer of 'special federal matters' as they are defined under the Commonwealth Jurisdiction of Courts (Cross-vesting) Act. Special federal matters must usually be transferred from the Supreme Court to the Federal Court except in certain limited circumstances.
This Bill provides that the Supreme Court must only transfer so much of the proceeding as is thought to be within the jurisdiction of the Federal Court; whereas in the past the entire proceeding would have been transferred. This amendment is not of itself introducing a new limitation on the jurisdiction of the Supreme Court; however, some limitation remains. Section 6 of the Jurisdiction of Courts (Cross-vesting) Act was previously the subject of a section 85 statement. Because of the amendments to section 6 made by this Bill it is necessary to make this further section 85 statement.
The Committee notes the technical nature of the amendments made to the jurisdiction of the Supreme Court by clauses 23 and 27 in the Bill. The Committee is of the view that the proposed section 85 provisions are appropriate and desirable in all the circumstances. |
The Committee makes no further comment.
Local Government (Governance) Bill
11.1
The Bill was introduced into the Legislative Council on 11 April 2000 by the Honourable Marsha Thomson MLC. The Second Reading Speech was delivered on 12 April 2000.
11.2
The purpose of the Bill is to –
- make changes concerning the reappointment of Chief Executive Officers of Councils under the Local Government Act 1989; and
- make other minor amendments to the Local Government Act 1989; and
- make a minor amendment to the Libraries Act 1988.
11.3
Clause 2 provides that the amendments made by the Bill come into operation on the day after Royal Assent.
Clause 3 substitutes a new section 94(4) of the Act relating to the reappointment of the CEO of a Council without the necessity, in certain circumstances, of the Council advertising the position. The Council must give public notice of any resolution to reappoint an incumbent CEO without advertising the position.
Clause 4 inserts a new section 95C providing that anything done by a person purporting to act as a CEO, or as a senior officer, is not invalid merely because that person's contract of employment as a CEO, or senior officer, was void at the time the thing was done.
Clause 6 substitutes new sections 227A(3) and (4) in the Act and relates to a change in the method of setting maximum interest rates on unpaid money and provides that the interest rate specified by the Council must not be more than the rate fixed under section 2 of the Penalty Interest Rates Act 1983.
The Committee makes no further comment.
National Taxation Reform (Further Consequential Provisions) Bill
12.1
The Bill was introduced into the Legislative Assembly on 12 April 2000 by the Honourable John Brumby MLA with the Honourable John Thwaites MLA. The Second Reading Speech was delivered on 13 April 2000.
12.2
The Bill follows the National Taxation Reform (Consequential Provisions) Act 2000 (Assented to on 11 April 2000) and deals with further necessary consequential amendments to Victorian Acts as a consequence of the introduction of the Goods and Services Tax (GST) on 1 July 2000.
12.3
Clause 2 the Act (except Parts 2 and 5 and sections 10, 19 and 20) comes into operation on the day after Royal Assent. Part 2 and sections 10, 19 and 20 come into operation on 1 July 2000. Part 5 comes into operation on 3 July 2000.
Clause 3 amends sections 108 and 127 of the Accident Compensation Act 1985. The amendments will ensure that penalties applied to employers in certain circumstances will not be subject to GST. Rather than making certain defaulting employers subject to additional Workcover premiums they will be liable for penalties which do not attract GST.
Clause 4 amends sections 3 and 6 of the Funerals (Pre-Paid Money) Act 1993 to provide for changes to legislation relating to the investment of money by funeral organisers in respect of pre-paid funerals.
Clauses 5 to 11 make amendments to the Casino Control Act 1991, the Casino (Management Agreement) Act 1993, the Interactive Gaming (Player Protection) Act 1999 (not yet proclaimed), and the Tattersall Consultations Act 1958. The amendments are primarily concerned with amending legislation relating to the casino to meet State obligations under an Intergovernmental Agreement that gambling tax arrangements will be adjusted to take into account the impact of the GST on gambling operators.
Clauses 12 to 16 make consequential amendments to the Racing Act 1958.
Clause 17 amends section 110 of the Transport Accident Act 1986 to provide for the transport accident charge to take into account the impact of the GST and the abolition of wholesale sales tax.
Clauses 18 to 20 allow for increases in certain fees and charges which are necessary as a result of the GST.
Clause 18 amends the Cemeteries Act 1958 to permit the trustees of a cemetery trust to increase a fee named in a scale of fees made and published before 1 July 2000 by an amount not exceeding the amount of GST payable on the supply to which the fee relates without the requirement to submit the increase to the Governor in Council. The trustees must cause notice of the increase to be published in the Government Gazette and a newspaper generally circulating in the area in which the cemetery is situated.
Clause 19 amends the Legal Practice Act 1996 to increase by 10% the maximum levy payable by legal practitioners in relation to the Fidelity Fund.
Clause 20 amends the Trustee Companies Act 1984 to provide for an increase of 10% in the ceilings which apply to certain fees and commissions which are provided for under that Act.
The Committee makes no further comment.
Planning and Environment (Amendment) Bill
13.1
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.
13.2
The main purposes of the Bill are to –
(a) amend the Planning and Environment Act 1987 to –
- increase the penalties under that Act; and
- provide for matters to be taken into account in considering applications for amendments to planning permits; and
(b) amend the Building Act 1993 to –
- provide for consistency between planning permits and building permits; and
- require the consent and report of the relevant responsible authority in relation to applications for demolition permits; and
- enable the suspension of applications for demolition permits pending amendment of planning schemes; and
- provide for fees to be paid to reporting authorities for considering certain applications for building permits; and
(c) amend the Prostitution Control Act 1994 to increase the penalties under that Act; and
(d) amend the Residential Tenancies Act 1997 to apply the plumbing provisions of the Building Act 1993 to mobile homes in caravan parks.
(e) amend the Subdivision Act 1988 to include additional regulation-making powers in relation to bodies corporate.
13.3
Clause 2 Parts 1, 2 and 4 come into operation on the day after Royal Assent. Part 3 comes into operation on proclamation but not later than by 1 January 2001.
Part 2 – Amendments to Planning and Environment Act 1987 (the Act)
Clause 3 amends section 48(2) of the Act to provide for an increase in the maximum penalty for making false representations or declarations in order to obtain a planning permit.
Clause 9 repeals section 122(4) of the Act, which prevented a person being convicted of an offence against the Act if the matter constituting the offence was the subject of proceedings before, or subject to an enforcement order of the Tribunal.
Clause 10 amends section 127 (‘General Penalties’ which are penalties not specifically provided for elsewhere in the Act) and provides for significantly higher penalties.
Part 3 – Amendments to Building Act 1993 (the Act)
Clause 14 amends section 28 of the Act by repealing (1)(b) which required a building surveyor to make a judgment on the ‘special interest’ of a building and inserting a new 28(4) providing that the consent and report of the Executive Director under the Heritage Act 1995 must be obtained to an application to demolish or alter a building which is on a register established under that Act.
Clause 16 amends section 261of the Act dealing with regulation making powers and inserts a new head of regulation power –
(la) fees payable for consideration of applications for permits under this Act by reporting authorities under section 28 or 29A.
| The Committee notes the additional regulation making powers inserted by clause 16 of the Bill and accepts that they are appropriate to give effect to the purposes of the Act. |
Part 4 – Amendments to other Acts
Clause 21 amends section 77(1) of the Prostitution Control Act 1994 to increase penalties for an offence against section 126 (Offence to contravene scheme, permit or agreement) of the Planning and Environment Act 1987 in relation to land used or developed for the purpose of a brothel.
Clause 22 amends section 517 of the Residential Tenancies Act 1997 by applying Part 12A (plumbing work) of the Building Act 1993 to movable dwellings located in caravan parks. The amendment will have the effect of applying the Plumbing Regulations 1998 relating to water, sewerage and drainage connections to caravan parks.
Clause 23 amends section 43(1) of the Subdivision Act 1988 to provide for additional heads of power for regulations under that Act in relation to bodies corporate. The additional regulation making powers provide –
h(viia) the powers of a body corporate to provide services or to enter into agreements for the provision of services to members of the body corporate and the occupiers of lots; and
h(viib) the powers of a body corporate to require an owner of a lot to carry out reasonable repairs, maintenance and other works on that lot and the powers of a body corporate to carry out those works if the owner of the lot does not; and
h(viic) the disposition and investment on behalf of the members of a body corporate of money held by a body corporate.
| The Committee notes the additional regulation making powers inserted by clause 23 of the Bill and accepts that they are appropriate to give effect to the purposes of the Act. |
The Committee makes no further comment.
Vocational Education and Training (Council Membership) Bill
14.1
The Bill was introduced into the Legislative Assembly on 22 March 2000 by the Honourable Lyn Kosky MLA with the Honourable Christine Campbell MLA. The Second Reading Speech was delivered on 4 April 2000.
14.2
The purpose of the Bill is to amend the Vocational Education and Training Act 1990 (the Act) to provide that members of Parliament are ineligible to hold office as members of TAFE college councils and to remove those members of Parliament who are members of TAFE college councils from the councils and for other purposes.
14.3
Clause 2 the provisions of the Bill come into operation on the day after Royal Assent.
Clause 3 amends section 28(2) of the Act and provides a person who is a member of Parliament must not be appointed or elected to be a member of a council and that a person holding office as a member of a council immediately before the commencement of the provisions in the Bill who was on that date a member of Parliament ceases to hold office as a member of the council.
Clause 4 makes a consequential amendment by repealing section 29A which provided that a member of a TAFE Institute Council shall not be taken to be an "office of profit" under the Crown.
The Committee makes no further comment.
Witness Protection (Amendment) Bill
15.1
The Bill was introduced into the Legislative Assembly on 22 March 2000 by the Honourable Christine Campbell MLA on behalf of the Honourable Andre Haermeyer MLA with the Honourable Lyn Kosky MLA. The Second Reading Speech was delivered on 4 April 2000.
15.2
The Bill amends the Witness Protection Act 1991 to –
- enable authorities from other jurisdictions to apply for Victorian identity documents for witnesses in their witness protection programs,
- provide for the extraterritorial operation of offences regarding disclosure of information about witnesses and for other purposes.
15.3
Clause 2 the provisions in the Bill come into operation on the day after Royal Assent.
Clause 4 amends the purposes of the Act by inserting "in Victoria or elsewhere in Australia" to make it clear that the Act is intended to have extra-territorial effect.
Clause 5 inserts new definitions of "officer of an approved authority", "participant" and "recognised participan". A ‘participant’ being a person who is included in the Victorian witness protection program, whilst a ‘recognised participant’ is a person recognised under a complementary witness protection law.
Clause 6 amends section 4(1) to permit ‘officers of approved authorities’ to make new entries in the register of births or register of marriages.
Clause 8 inserts a new section 6(1A) into the Act and provides that an approved authority may apply to the Supreme Court for a court order authorizing a nominated officer or officers of the approved authority to make a new entry in the register of births or register of marriages in respect of a recognised participant or members of the family of the recognised participant.
Clause 9 inserts a new section 7(a) extending the power of Supreme Court to make orders in regard to ‘recognised participants’.
Clause 10 amends section 8 to provide that the Registrar of Births, Deaths, Marriages and Names is required to give the member or members of the police force or officer or officers of an approved authority nominated in the authorizing court order access to the register of births or register of marriages and to give such assistance as they may require.
Clause 11 amends section 9 and inserts sub-sections (2) and (3) to provide for circumstances under which entries made on the register of births or register of marriages may be cancelled for both participants and recognised participants.
Clause 12 amends section 10 and has the effect of ensuring that disclosure offences apply extraterritorially. A person must not in or outside Victoria disclose information about the identity or location of a person who is or has been a participant or recognised participant in the witness protection program or compromise the security of such a person. Maximum penalty 10 years imprisonment.
Clause 13 inserts a new section 12(1)(g) into the Act dealing with immunity from proceedings and extends that immunity to ‘officers of an approved authority’. [Refer to 15.4 for section 85 Constitution Act 1975 reference.]
Clause 16 inserts a new section 21A providing that that an approved authority or an officer of an approved authority may perform a function or exercise a power under this Act only if arrangements between the Chief Commissioner of Police and the approved authority under section 21 are in force.
Clause 17 amends section 24 dealing with freedom of information provisions as they apply to the Act and ensures that they also apply to an approved authority or an officer of an approved authority.
Double jeopardy
Clause 18 inserts a new section 24A providing –
If an act or omission is both an offence under this Act and an offence under a law of the Commonwealth, or of another State, or of a Territory, a person who –
(a) is convicted of the offence under that law; or
(b) is found by a court to have committed the offence under that law but is not convicted –
is not liable to be proceeded against for the offence under this Act.
15.4
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.
Clause 19 substitutes a new section 25 and provides that is the intention of section 12(3), as it applies to persons specified in section 12(1) as amended by clause 13 of the Bill to alter or vary section 85 of the Constitution Act 1975.
The Committee notes the section 85 statement in the Minister’s Second Reading Speech –
I now wish to make a statement under section 85 of the Constitution Act 1975 as to the reasons for altering or varying the operation of that section. Clause 19 of the Bill substitutes a new section in the principal Act, which states that it is the intention of section 12(3), as it applies to persons specified in section 12(1) as amended by clause 13 of the Bill, to alter or vary section 85 of the Constitution Act 1975.
Clause 13 of the Bill amends section 12(1) to include an officer of an approved authority as a person whom section 12 applies. Therefore, the effect of clause 13 of the Bill is to extend the immunity in section 12(3) to officers of approved authorities.
The reason for this extension of immunity is to protect the officers of an approved authority in the performance of their duties and maintain the integrity of information held under the witness protection program.
The Bill will enhance the operation of the witness protection program in this state.
| The Committee is of the view that the proposed section 85 provision is appropriate and desirable in all the circumstances. |
The Committee makes no further comment.
Essential Services (Year 2000) Act 1999
16.1
The Bill was introduced into the Legislative Assembly on 10 November 1999 by the Honourable Steve Bracks MLA with the Honourable John Thwaites MLA. The Second Reading Speech was delivered on 11 November 1999.
16.2
The Committee considered the Act in Alert Digest No.1 of 2000. The Committee wrote to the Minister on 28 February 2000 and received a response on 26 April 2000. In its letter to the Minister the Committee made the following comments in respect to two sections of the Act –
Section 30
The Committee notes the wide delegation powers provided by section 30. The Committee has consistently pointed out that a delegation provision to any person without restriction or qualification would appear to be in breach of section 4D(b)(ii) of the Parliamentary Committees Act 1968 being a provision that makes rights, freedoms or obligations dependent upon insufficiently defined administrative powers.
The Committee would prefer that delegations be confined to senior designated public sector officials or that the type of powers and functions capable of delegation be adequately defined by the provisions of the Act itself.
The Committee will write to the Minister requesting further information as to why this wide delegation power is thought appropriate or desirable in this legislation.
Section 34
The Committee is of the view that the ability to declare what is an ‘essential service’ by means of a Governor in Council order may constitute an example of a Henry VIII Section as is thereby a possible breach of section 4D(b)(iv) of the Parliamentary Committees Act 1968 as an inappropriate delegation of legislative power.
The Committee is further concerned that the amendment to the Emergency Management Act 1986 does not sunset on 30 June 2001 as will the other provisions in the Act but will remain in force by virtue of section 15 of the Interpretation of Legislation Act 1986.
The Committee will write to the Minister to express it’s concerns in relation to Section 34.
16.3 The Minister’s response
Thank you for your letter dated 28 February 2000, advising the concerns of the Scrutiny of Acts and Regulations Committee with respect to sections 30 and 34 of the Essential Services (Year 2000) Act 1999 ("the Act").
Section 30
I agree that the Parliament should be extremely reluctant to allow the broad delegation of legislative powers, particularly the delegation of unspecified powers to unidentified officers. The circumstances which required the use of this legislation, however, were unusual. This Act was developed to enable the Government to address any emergencies which arose from the entry into the year 2000 ("Y2K"). The exact nature of the required delegations under the Act could not be predicted in advance and would become apparent when a threat to an essential service emerged.
The delegations to be made would be dictated by the circumstances arising from a Y2K event. It was envisaged that bodies with specialist expertise would be delegated the necessary powers to deal with specific emergencies. It was anticipated that the Minister’s power would be delegated to a senior official with appropriate expertise in the particular emergency who could take the necessary immediate action such as issuing directions and authorising suitably qualified inspectors.
Whether or not section 30 operates to delegate power inappropriately should be determined in the context of the inability to predict the effects of Y2K. The possibility of unpredictable disruption requiring management under the Act justified the Parliament ensuring that the Government had a broad power of delegation in section 30 to deal with any emergency. The Government has already assured the Parliament that such delegations would be exercised as sparingly as is necessary. I refer you to the answers given in the Legislative Council by Minister Gould on 1 December 1999 to questions concerning the use of the delegations power in section 30.
Section 34 of the Act
The Emergency Management Act 1986 (‘the EMA") defines an "emergency", which may invoke the powers under the EMA, as a single catastrophic event. The consequences of the tragic fire at Longford revealed that, in the case of disruption to an essential service, the need for emergency management powers remains after the cause of the disruption has ceased. The amendment to the EMA provides that an "emergency" to which the EMA applies may include a disruption to essential services. By enabling the Governor-in-Council to declare a service to be an essential service, the amendment allows the processes of the EMA to be invoked, to unforseen disruptions to service which may adversely affect Victoria.
I am surprised at the Committee’s concern that section 34 may inappropriately delegate legislative power. The power of the Governor-in-Council in section 4(2) to declare a service as an "essential service", only enables the powers of the EMA to be invoked with respect to a disruption to those services. The processes of the EMA must be followed with respect to the management of the emergency consequent upon that disruption. As section 4(1) of the EMA does not allow the Governor-in-Council to amend or modify the EMA, I do not accept that it constitutes a "Henry VIII clause".
The amendments to the EMA in section 34 were designed to survive the expiry of the Act. It was intended that, in the future, the EMA would give the power to manage ongoing emergencies caused by the disruption to an essential service, even after the initial cause of that disruption has ceased. The recent experience of unforseen disasters which have resulted in disruptions to essential services in Victoria, justifies this permanent amendment to section 34.
| The Committee thanks the Premier for his response. |
Committee Room
Monday, 1 May 2000
| Footnotes | |
| 1 | Formerly the Subordinate Legislation Subcommittee (a subcommittee of the Scrutiny of Acts and Regulations Committee). |
| 2 | Section 4D(b)(iii) provides that the Committee is to report to the Parliament where a provision in a Bill does not repeal, alter or vary section 85 of the Constitution Act 1975, but where an issue is raised as to the jurisdiction of the Supreme Court, as to the full implications of that issue |
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