Alert Digest No. 6
of 2000
23 May 2000
Appropriation (2000/2001) Bill
1.1
The Bill was introduced into the Legislative Assembly on 2 May 2000 by the Honourable Steve Bracks MP with the Honourable John Brumby MP. The Second Reading Speech was delivered on 2 May 2000.
1.2
The Bill provides for payments from the Consolidated Fund to Departments in respect to the 2000/2001 financial year and for outstanding departmental liabilities incurred prior to 2000/2001 such as employee entitlements that may be realised in the future.
1.3
Clause 2 provides that the Act commences on Royal Assent.
Clause 8 provides appropriation authority for additional funding approved by the Treasurer during 1998/99 from funds appropriated for Advance to the Treasurer under the Department of Treasury and Finance.
The Committee makes no further comment.
Appropriation (Parliament 2000/2001) Bill
2.1
The Bill was introduced into the Legislative Assembly on 2 May 2000 by the Honourable Steve Bracks MP with the Honourable John Brumby MP. The Second Reading Speech was delivered on 2 May 2000.
2.2
The Bill provides for payments from the Consolidated Fund to the Parliament in respect to the 2000/2001 financial year and for outstanding Parliamentary liabilities incurred prior to 2000/2001 such as employee entitlements that may be realised in the future.
2.3
Clause 2 provides that the Act commences on Royal Assent.
The Committee makes no further comment.
Arts Legislation (Amendment) Bill
3.1
The Bill was introduced into the Legislative Assembly on 3 May 2000 by the Honourable Mary Delahunty MLA with the Honourable Rob Hulls MLA. The Second Reading Speech was delivered on 4 May 2000.
3.2
The purposes of the Act are to –
- provide for –
(i) the revocation of the Crown grant of the land on which the National Gallery of Victoria and part of the Victorian Arts Centre is situated; and
(ii) the vesting of the control and management of the part of that land on which the Gallery is situated in the Council of Trustees of the National Gallery of Victoria and the part of that land on which part of the Victorian Arts Centre is situated in the Victorian Arts Centre Trust;
- establish the collection of the Performing Arts Museum as a State collection;
- update the functions and powers of the Victorian Arts Centre Trust;
- provide for the appointment of a chief executive officer of the Victorian Arts Centre Trust for a maximum term of 5 years;
- make other amendments of a machinery or procedural nature to improve the operation of the Victorian Arts Centre Trust and the Council of Trustees of the National Gallery of Victoria.
3.3
Clause 2 provides that the provisions in the Bill commence on 1 July 2000.
Clause 5 inserts a new section 3A in the Victorian Arts Centre Act 1979 (the Act) providing that the State art collection comprises, amongst other things, all donations, gifts, dispositions and trusts of property, real or personal, other than money, lawfully made or declared whether before or after the commencement of the provisions in the Bill by deed, will or otherwise to or in favour of the Trust or for the uses or purposes of the Trust and accepted for the State collection by the Trust.
Clauses 8 to 10 remove gender specific language in the Act and make other nomenclature amendments.
Clause 11 inserts new sections 11A and 11B into the Act providing for a process whereby resolutions may be passed without the necessity of a meeting of the members of the Trust. New section 11B deals with conflicts of interest and members duties when voting on resolutions.
Clause 14 inserts a new section 13A concerning delegations under the Act.
(1) The Trust may, by instrument under its common seal, delegate any of its functions or powers (except this power of delegation or the power to make by-laws) to –
(a) the members constituting a sub-committee of the Trust; or
(b) a member of the Trust; or
(c) the chief executive officer of the Trust; or
(d) an employee of the Trust.
(2) A delegation under sub-section (1) may be made to a specified person or class of persons referred to in that sub-section.
| The Committee notes the new delegation provision and accepts that the provision is appropriately limited and defined to give effect to the purposes of the Act. |
Clause 15 provides for the replacement of the "general manager" with a "chief executive officer" (CEO) and allows the current general manager to complete his or her term of office as the CEO. The amendment also provides that the Trust must not remove the chief executive officer from office except with the approval of the Minister.
Clause 16 inserts new sections 17A, 17B and 17C dealing with the power to enter into leases and granting licences over land.
Clause 17 inserts a new section 18 into the Act dealing with sale, disposal or exchange of objects in the State collection and provides that the Trust must not sell or dispose of an object that is part of the State collection unless it has resolved that retention of that object, or objects of that class, is unnecessary and inappropriate to the Activities of the Trust; and the Trust has caused to be published and displayed a notice containing a description of the object or class of objects; and a statement that the Trust intends to sell or dispose of that object or an object or objects in that class of objects; and a statement that any person may object in writing to the proposed sale or disposal within 6 months after the date of publication or display; and either no objection was received within that period; or if an objection was so received, the Minister, or a delegate of the Minister, has decided in accordance with this section that the sale or disposal should proceed.
The Committee makes no further comment.
Business Registration Acts (Amendment) Bill
4.1
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 2 May 2000.
4.2
The purpose of the Bill is to –
- amend the Associations Incorporation Act 1981 (the Act), the Business Names Act 1962, the Co-operatives Act 1996 and the Partnership Act 1958 to facilitate electronic service delivery for registration services provided under those Acts;
- make other miscellaneous amendments to those Acts; and
- amend the Fair Trading Act 1999 and other Acts.
4.3
Clause 2 the provisions in the Bill come into operation on
proclamation but not later than
1 July 2002.
| The Committee notes that the commencement of the provisions in the Act may not occur for up to 2 years. |
Clause 5 amends section 35(2) to allow the registrar to wind up an
incorporated association which has failed to become registered or incorporated as a
prescribed body corporate within
6 months after the period specified in a notice under section 31AB.
Clause 6 is a delegation provision and inserts a new section 38B providing that the Minister may, by instrument, delegate to the Registrar any of the powers or functions of the Minister under this Act, except this power of delegation.
| The Committee notes the delegation power inserted by clause 6 of the Bill and accepts that it is sufficiently defined for the purposes of the Act. |
Clause 8 inserts new sections 45B and 45C to allow the Registrar to permit electronic document lodging arrangements.
Clause 10 inserts a new section 49A providing that if a public officer or other person has lodged a copy of a document under this Act signed by the public officer or other person in accordance with an approval under section 45B, he must ensure that the original signed document is kept so that it is able to be produced readily to the Registrar for not less than 7 years after the document was lodged with the Registrar.
Clause 11 amends section 54(2) by inserting a paragraph (bc) permitting regulations to be made for the keeping of records of documents required under the Act in any form approved by the Registrar.
| The Committee notes the additional regulation making powers inserted by clause 11 of the Bill and accepts that they are appropriate to give effect to the purposes of the Act. |
Part 3 – Business Names Act 1962 (the Act)
Clause 15 inserts a new section 4BB being a new delegation provision providing –
The Minister may, by instrument, delegate to the Director any of the Minister's functions or powers under this Act, other than this power of delegation.
| The Committee notes the delegation power inserted by clause 15 of the Bill and accepts that it is sufficiently limited for the purposes of the Act. |
Clause 16 amends section 5(1) to increase the penalty for trading under an unregistered business name from $200 to $3,000.
Clause 19 amends section 9(2) of the Act dealing with restrictions in registering business names that are undesirable and provides –
The Minister must ensure that a direction under this section is published in the Government Gazette and a copy of the direction is sent to the Minister of each State and self-governing Territory who is responsible for administering a law corresponding to this Act and to the Minister administering the Corporations Act 1989 of the Commonwealth.
Clause 24 inserts new sections 17 and 17A dealing with false and misleading statements. New section 17 makes it an offence to knowingly or negligently provide false or misleading statements under the Act and sets a penalty of $6,000 in each case.
(2) A person who, in a statement required by or for the purposes of this Act or lodged with or submitted to the Director or in a declaration made under this Act, (a) makes or authorizes the making of a statement that is false or misleading in a material particular; or (b) omits or authorizes the omission of any matter or thing without which the statement required, lodged or submitted would be misleading --
without having taken reasonable steps to ensure that the statement was not false or misleading or to ensure that the statement did not omit any matter or thing without which the statement required, lodged or submitted would be misleading, as the case may be, is guilty of an offence and liable to a penalty not exceeding 60 penalty units.
Clause 25 amends section 19(1)(d) to allow the Director to cancel the registration of a business name where the name of a corporation has been deregistered under the Corporations Law.
Clause 27 amends section 32(1) and will permit the service of notices to an electronic address.
Clause 28 amends section 32(1) concerning the regulation making power by inserting paragraph (dd) and substituting a new section 32(1B) –
(dd) provisions for the keeping of records of statements required under this Act in any form approved by the Director;
| The Committee accepts that the amendments to the regulation making power are appropriate to give effect to the purposes of the Act. |
Clause 28 (2) substitutes a new section 32(1B). The new provision provides –
32(1B) The regulations are subject to disallowance by a House of the Parliament.
Part 4 – Co-operatives Act 1996 (the Act)
Clause 29 inserts new sections 438A and 438B dealing with the electronic signing and lodgment of documents.
Clause 33 inserts a new section 463(2)(d) to enable regulations to provide for –
the keeping of records of documents required under this Act in any form approved by the Registrar.
| The Committee notes the additional regulation making powers and accepts that it is appropriate to give effect to the purposes of the Act. |
Part 5 – Partnership Act 1958 (the Act)
Clause 36 substitutes a new section 79 in the Act which makes it an offence to provide a false or misleading statement to the Commissioner knowingly or negligently and sets a penalty of $6,000 in each case.
79. False and misleading statements
(2) A person who, in a document required by or for the purposes of this Act or lodged with or submitted to the Commissioner or in a declaration made under this Act -
(a) makes or authorizes the making of a statement that is false or misleading in a material particular; or
(b) omits or authorizes the omission of any matter or thing without which the statement would be misleading –
without having taken reasonable steps to ensure that the statement was not false or misleading or to ensure that the statement did not omit any matter or thing without which the document would be misleading, as the case may be, is guilty of an offence and liable to a penalty not exceeding 60 penalty units.
Clause 37 inserts new sections 79A to 79F and deals with electronic lodgment of documents and other like formality requirements.
Clause 38 amends section 80(2) concerning regulation making powers and inserts the following additional powers –
(a) the keeping of records of documents required under this Act in any form approved by the Commissioner; and
(b) creating penalties for offences not exceeding 5 penalty units.
| The Committee accepts that the amendments to the regulation making power are appropriate to give effect to the purposes of the Act. |
Clauses 39 to 53 replaces references for Director of Fair Trading with references to the Director of Consumer and Business Affairs, updates various headings, names of Acts and makes other like or similar nomenclature machinery of government amendments.
The Committee makes no further comment.
Children and Young Persons (Appointment of President) Bill
5.1
The Bill was introduced into the Legislative Assembly on 3 May 2000 by the Honourable Rob Hulls MLA with the Honourable John Brumby MLA. The Second Reading Speech was delivered on 4 May 2000.
5.2
The purpose of the Bill is to amend the Children and Young Persons Act 1989 (the Act) to provide for the Children's Court to be presided over by a President who will be a judge of the County Court. The Bill also provides that appeals from the Children's Court when constituted by the President lie to the Supreme Court.
5.3
Clause 2 the provisions in the Act come into operation on a day to be proclaimed but not later than 1 August 2000.
Clause 4 amends sections 8 to 11 of the Act and has the effect of establishing the Children’s Court (the Court) by inserting references to the ‘President’ of that Court who shall be a judge of the County Court. Other members of the Court will be the Magistrates and the registrars of the Court.
Clause 5 substitutes a new section 12 and creates the office of President of the Court. The section deals with the terms and conditions of the office.
Clause 6 amends section 12A providing for a mechanism for the appointment of an Acting President. An Acting President has the identical powers of a President. Service in the position does not count as service in the office of judge of the County Court.
Clause 11 makes a number of amendments to section 116 concerning appeals from decisions in the Family Division. Where the President constitutes the Court in the first instance, a Supreme Court judge will hear appeals.
Clause 12 makes several amendments to sections 197, 198 and 199 dealing with appeals in the Criminal Division. Where the President constitutes the Court in the first instance, a Supreme Court judge will hear appeals.
Clause 14 provides that the President and 2 or more magistrates of the Court may jointly make rules of court.
Clause 15 inserts anew section 280B allowing the President to issue Practice directions, statements or notes for the Court in relation to proceedings in the Family Division or the Criminal Division or any class of proceeding in the Family Division or the Criminal Division.
Clause 16 makes transitional arrangements dealing with the current Children’s Court Senior Magistrate and references made to that position in the Act and other Acts. The position is abolished and the person holding the office goes out of office.
5.4
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 8 inserts a new section 13B and gives the President the same immunities as a judge of the Supreme Court.
Clause 13 declares that it is the intention of new section 13B (immunity of the President) as amended inserted by clause 8 to alter or vary section 85 of the Constitution Act 1975. The clause further declares that it is the intention of sections 116, 197 and 198 (concerning appeals in the Family Division and the Criminal Division) as amended by clauses 11 and 12 to alter or vary section 85 of the Constitution Act 1975.
Clause 17 makes consequential amendments to sections 20 and 21 of the Crimes (Family Violence) Act 1987 concerning appeals from decisions under that Act, the effect of which is that where the President constitutes the Court in the first instance, appeals under sections 20 and 21 of that Act will be heard by a Supreme Court judge.
Clause 18 declares that it is the intention of sections 20 and 21, as amended by clause 17 of the Bill, to alter or vary section 85 of the Constitution Act 1975.
The Committee notes the comments in the Second Reading Speech –
It is intended that the new section 13B inserted by clause 8 of the Bill will alter or vary section 85 of the Constitution Act 1975 to the extent necessary to provide the President in the performance of his or her duties as president with the same protection and immunity as a judge of the Supreme Court has in the performance of his or her duties as a judge.
This gives the President the same immunities that the County Court Act 1958 confers on judges of the County Court and the Children and Young Persons Act 1989 confers on Children's Court magistrates. As a matter of public policy, it is appropriate for the legislature to confer such protections on the holders of judicial office and important that those protections be consistent.
Clauses 11 and 12 amend sections 116, 197 and 198 of the Children and Young Persons Act 1989 to ensure that appeals from decisions of the President lie to the Supreme Court, rather than to the County Court. It is the intention of sections 116, 197 and 198, as amended by this Bill, to alter or vary section 85 of the Constitution Act.
The Bill replicates the current system whereby the decision of the court hearing the appeal is final, and in most cases no further appeal rights lie.
This is appropriate, for such appeals proceed as de novo hearings, where the appellant can in effect have a full second hearing of his or her case. It is desirable that a consistent appeal stream be adopted for appeals from decisions of the president.
Clause 17 amends sections 20 and 21 of the Crimes (Family Violence) Act 1987 to make similar amendments in respect of appeals from decisions of the President made under that Act. It is the intention of sections 20 and 21, as amended by this Bill, to alter or vary section 85 of the Constitution Act.
Again, the Bill replicates the current process for appeals in family violence cases, except that the appellate court will be the Supreme Court. These appeals are also de novo hearings, and it is again appropriate that no further appeal rights lie.
| 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.
Control of Weapons (Amendment) Bill
6.1
The Bill was introduced into the Legislative Assembly on 3 May 2000 by the Honourable Andre Haermeyer MLA with the Bronwyn Pike MLA. The Second Reading Speech was delivered on 4 May 2000.
6.2
The purpose of the Bill is to make miscellaneous amendments to the Control of Weapons Act 1990 (the Act) and to make a consequential amendment to the Vagrancy Act 1966.
The Committee notes these extracts from the Second Reading Speech –
…
By amending the Control of Weapons Act 1990 this Bill will give effect to that commitment by renaming the most dangerous category of weapons as 'prohibited weapons'.
This will avoid confusion in relation to such weapons as flick-knives and knuckledusters, and better reflect their purpose, which is a principally offensive one. The Bill will also more accurately describe the second category of weapons, by renaming them 'controlled weapons' rather than merely regulated weapons. The regulations will continue to prescribe weapons by category.
Significantly, the Bill will also further restrict the sale, display and marketing of the most dangerous category of weapons; severely restrict the sale of weapons to those under 18 years of age; move the administration of body armour from the Act to the regulations; provide for the levying of an administrative fee to cover the costs of processing exemptions and approvals; and extend the concept of prohibited persons from the Firearms Act 1996 into the Control of Weapons Act.
Additionally, the Bill will also clarify the position in relation to the lawful excuse to otherwise possess controlled weapons. The proposed amendments will ensure that the context in which a weapon is discovered in public is relevant in determining whether an excuse is indeed lawful -- for example, it will be deemed not to be a lawful excuse for a person to be found with a fishing knife outside a night club at 2.00 a.m.
The Bill will transfer responsibility for the granting of exemptions for individuals to possess prohibited weapons from the Governor in Council to the Chief Commissioner of Police. These will be called approvals under the Bill. This will bring non-firearms weapons into line with the regime for firearms. Exemptions for groups and classes of persons will remain the responsibility of the Governor in Council. This is important because it will ensure that the government retains control over weapons employed in the administration of the criminal law.
It is further proposed that the Control of Weapons Act adopt the category of prohibited persons used in the Firearms Act 1996. Prohibited persons include: persons serving a term or imprisonment for serious offences; or persons the subject of a domestic violence intervention order or a supervised community-based order. Such people will not be eligible for either an exemption or approval under the Act.
The Bill creates a specific offence to sell a prohibited weapon to a person who has neither an exemption under the Act nor an approval under the Bill. The creation of this offence will reinforce the government's election policy commitment to restrict the availability of weapons in the community by ensuring tighter control over the sale of prohibited weapons.
The Bill will also require all persons who sell a prohibited weapon to record certain details about each weapon sold. Any purchaser of a prohibited weapon will be required to prove their identity and their entitlement to purchase the weapon. This requirement will assist Victoria Police in the enforcement of the regulatory regime for prohibited weapons.
As evidence of the government's commitment to reduce their use in criminal enterprises, the Bill will increase penalties for offences involving prohibited weapons.
The Bill also varies the procedure for the return of seized weapons. If not charged with an offence, a person must be informed of his or her right to have a weapon returned. Any person under 18 years of age seeking the return of a weapon must be accompanied by parent or guardian when they present themselves to police to collect it. If a person does not seek to have the weapon returned it will automatically be forfeited to the Crown.
6.3
Clause 2 the provisions in the Act come into operation on proclamation but not later than by 1 July 2001.
Clause 4 inserts a new definition into section 3 of the Act for ‘body armour’ – means a garment or item that is designed, intended or adapted for the purpose of protecting the body from the effects of a weapon, including a firearm within the meaning of section 3(1) of the Firearms Act 1996, and that is prescribed by the regulations to be body armour.
Clause 5 inserts new definitions into the Act for –
‘controlled weapon’ meaning a knife, other than a knife that is a prohibited weapon; or an article that is prescribed by the regulations to be a controlled weapon.
‘prohibited weapon’ meaning an article that is prescribed by the regulations to be a prohibited weapon.
Clause 6 substitutes a new section 5 and inserts new section 5A and 5B making the necessary changes to reflect the new nomenclature form ‘prescribed weapon’ to prohibited weapon’ and to prohibit the display and advertisement for sale of prohibited weapons.
The new provisions prohibit the sale of such weapons to persons who are not exempt under section 8B or approved under section 8C.
New section 5 deals with prohibited weapons and provides –
(1) A person must not –
(a) bring into Victoria; or
(b) cause to be brought into or sent into Victoria; or
(c) manufacture, sell or purchase; or
(d) display or advertise for sale; or
(e) possess, use or carry--
a prohibited weapon without an exemption under section 8B or an approval under section 8C.
Penalty: 120 penalty units or imprisonment for 6 months.
(2) A person must not sell a prohibited weapon unless the person reasonably believes that the purchaser of the weapon has an exemption under section 8B or an approval under section 8C allowing the purchaser to possess the weapon.
Penalty: 120 penalty units or imprisonment for 6 months.
New section 5A deals with the need to identify persons purchasing prohibited weapons and provides that a person must not sell a prohibited weapon to a person who is unable to produce the required evidence of identity. Penalty 20 penalty units ($2000). A person must not produce false evidence of identity. Penalty 60 penalty units.
New section 5B concerns the need to record, as prescribed under the regulations, sales of prohibited weapons. A member of the police force, at any reasonable time, may require a person to produce for inspection a record kept under this section.
Clause 7 inserts a new section 6(4) into the Act providing –
In considering whether a person has lawful excuse to possess, carry or use a controlled weapon, the court must have regard to the circumstances, such as time and location, of the incident.
Clause 9 inserts new sections 8B to 8F into the Act.
Exemptions, approvals, offences and guidelines for prohibited weapons.
New section 8B deals with exemptions for prohibited weapons and body armour and provides that the Governor in Council may, by Order published in the Government Gazette exempt from any provision of section 5 or 8A (dealing with prohibited weapons and body armour respectively), (i) a class of persons or class of prohibited weapons or body armour; or (ii) a corrections officer, military officer or police officer (by name or description of office); and (b) specify conditions and limitations to which an exemption is subject.
New section 8C deals with approvals for prohibited weapons and body armour. The Chief Commissioner of Police may grant an approval to a person to do anything that is otherwise prohibited by section 5 or 8A. The Chief Commissioner cannot grant an approval under section to 8C to a prohibited person; or a corrections officer, military officer or police officer in connection with their official duties.
An approval must be in writing; and is subject to a condition that the prohibited weapon or body armour is stored safely and securely and in the manner (if any) specified by the Chief Commissioner in the approval; and any other conditions or limitations that the Chief Commissioner considers appropriate.
The Chief Commissioner may refuse to grant an approval to an applicant who is under the age of 18 years; or impose conditions or limitations on an approval granted to an applicant who is under the age of 18 years that the Chief Commissioner would not impose on an applicant of or over that age.
New section 8D deals with Ministerial guidelines relating to the granting of approvals under section 8C, including guidelines prohibiting or restricting the granting of approvals to applicants who are under the age of 18 years. Any guidelines issued by the Minister must be published in the Government Gazette.
New section 8E deals with offences regarding exemptions and approvals and provides that a person must not intentionally or recklessly breach a condition to which an exemption under section 8B or an approval under section 8C that applies to the person is subject and that a person must not knowingly make a statement in an application for approval under section 8C that is false or misleading in a material particular.
New section 8F provides that the Chief Commissioner is to make a report on applications for approval to the Minister within 30 days after the end of each financial year.
Return of weapons if person not charged.
Clause 10 amends section 9 and deals with the return of weapons if a person is not charged with an offence relating to the weapon. The member of the police force in charge of the police station at which the prohibited weapon, controlled weapon, dangerous article or body armour is kept must give notice to the person from whom the prohibited weapon, controlled weapon, dangerous article or body armour was seized of his or her right to have it returned.
If the person who applies for the return of a prohibited weapon, controlled weapon, dangerous article or body armour is under the age of 18 years, the prohibited weapon, controlled weapon, dangerous article or body armour must not be returned to him or her unless he or she is accompanied by a parent or guardian to collect it.
Clause 12 makes transitional and consequential amendments and arrangements to deal with exemptions and approvals made prior to the amendments made by the Bill and references to the old nomenclature (prescribed weapon and regulated weapon) to be regarded as references to the new terminology (prohibited weapon and controlled weapon) introduced by the Bill.
Clause 13 makes a consequential amendment to section 8(a)(ii) of the Vagrancy Act 1966 to refer to the new terminology introduced by the Bill.
The Committee makes no further comment.
7.1
The Bill was introduced into the Legislative Assembly on 3 May 2000 by the Honourable Bob Cameron MLA on behalf of the Honourable Keith Hamilton MLA with the Honourable Rob Hulls MLA. The Second Reading Speech was delivered on 4 May 2000.
7.2
The purpose of the Bill is to –
- remove the price and supply controls on milk;
- establish Dairy Food Safety Victoria as an Authority;
- provide a licensing system for the dairy industry;
- enable Codes of Practice and food safety programs to be implemented in relation to dairy food;
- repeal the Dairy Industry Act 1992.
7.3
Clause 2 provides that Part 1 comes into operation on the day after Royal Assent. The remaining provisions come into operation on proclamation.
| The Committee notes the commencement by proclamation clause and notes that no explanation for this is contained in either the Second Reading Speech or the Explanatory Memorandum. The Committee will write to the Minister seeking further advice for the necessity to employ such a legislative practice for this Bill. |
Part 2 – Dairy Food Safety Victoria
Clause 4 establishes an Authority by the name of Dairy Food Safety Victoria. The Authority is a body corporate with perpetual succession. The Authority is not to be deemed to represent the Crown in right of the State of Victoria.
Clauses 5 to 8 set out the objectives, functions, powers and the accountability of the Authority.
Clause 9 provides that the Authority is to consist of 7 members.
Clause 12 deals with the terms and conditions of office of members of the Authority. Each member holds office for a term not exceeding 3 years and is eligible for re-appointment.
Clause 16 deals with the improper use of information and provides that a person who is, or has been, a member, officer or employee of the Authority must not make improper use of any information acquired in the course of his or her duties to obtain directly or indirectly any pecuniary or other advantage for himself or herself or for any other person.
Clause 17 is a delegation provision and provides –
The Authority may by an instrument of delegation under its common seal delegate to an employee of the Authority any power, duty or function of the Authority under this Act, other than this power of delegation.
| The Committee notes the delegation power inserted by clause 17 of the Bill and accepts that it is sufficiently defined for the purposes of the Act. |
Clauses 19 to 21 provide for borrowing and investment powers, the preparation of corporate plans and the necessity for the Authority to provide reports to the Dairy industry.
Part 3 – Dairy Industry licences
Clause 22 provides that a person must not commence or conduct business as a dairy farmer; dairy manufacturer; dairy food carrier; dairy distributor unless that person holds a current and valid dairy industry licence in respect of the business.
Further the clause provides that a person must not own a dairy transport vehicle which is used or intended to be used to transport dairy food in bulk; or use a dairy transport vehicle to transport dairy food in bulk unless there is a current and valid dairy industry licence in respect of the dairy transport vehicle or unless there is a dairy industry licence or corresponding authority in force under this Act or any corresponding law of another State or Territory of the Commonwealth in respect of the dairy transport vehicle.
Clauses 23 to 26 deal with licences, fees, and the Authorities powers in respect to licences.
Review of decision of Authority
Clause 27 deals with the review of decisions of the Authority and provides that where any person whose interests are affected by any decision of the Authority to refuse to issue; issue or renew subject to conditions; refuse to renew; refuse to transfer; cancel; suspend; amend, vary or delete a condition or insert a new condition in a dairy industry licence may within 28 days of being notified of the decision apply to the Victorian Civil and Administrative Tribunal for review of the decision.
Clause 28 provides that if, under the Victorian Civil and Administrative Tribunal Act 1998, a person requests a statement of reasons for the decision, the period of 28 days referred to in section 27 is extended until the day on which the statement of reasons is given to the person or the person is informed under section 46(5) of that Act that a statement of reasons will not be given.
Clause 30 provides that a person must not in the course of any business accept, collect, take delivery of, sell or buy, or permit or cause to be accepted, collected, taken delivery of, sold or bought any dairy food from a business which is required to be licensed under this Act if there is no dairy industry licence or corresponding authority in force under the Act or any corresponding law of another State or Territory of the Commonwealth in respect of that business.
Part 4 – Food Safety
Codes of Practice
Clause 31 permits the Authority to make Codes of Practice approved by the Minister. Before doing so, the Authority must give a notice stating the purpose and general purport of the proposed Code of Practice; where a copy of the proposed Code of Practice can be obtained or inspected; that any person may make a submission on the proposed Code of Practice to the Authority within the period specified in the notice. The Authority must allow at least 28 days after the day on which a notice is given for the making of submissions.
Clause 33 as soon as practicable after the Minister has approved a Code of Practice, the Authority must publish the Code of Practice in the Government Gazette.
Clause 36 except as otherwise provided a person must not anywhere in Victoria sell, deliver or provide for human consumption, dairy food which has not been treated as required under a Code of Practice; or which has not been packed and sealed as required under a Code of Practice. This does not apply to the sale or delivery of dairy food to any licensed dairy manufacturing premises.
Part 5 – Enforcement and Legal Proceedings
Clause 43 provides that the Authority may appoint persons to be authorised officers for the purposes of the Act who are to have such powers, functions, and duties as are conferred on them under the Act or any other Act. The Authority must issue an identity card to each authorised officer. An identity card must contain a photograph of the authorised officer to whom it is issued. An authorised officer must produce his or her identity card for inspection before exercising a power under Part 5, and at any time during the exercise of a power under the Part, if asked to do so.
Clause 44 provides that the holder of a dairy industry licence must send to the Authority any records relating to dairy food as may be required by notice in writing by the Authority and must at all reasonable times permit any authorised officer to inspect and to make abstracts or copies of any records required to be kept under this Act.
Search and seizure powers
For the purposes of the administration of the Act, any Code of Practice and the regulations, and of ascertaining whether the provisions of the Act, any Code of Practice and the regulations and the conditions of any dairy industry licence have been or are being complied with, an authorised officer may with such assistance as the authorised officer may require, at any reasonable time –
(a) enter, inspect and examine any dairy premises or any other premises on which there is conducted a business in respect of which this Act requires the holding of a licence or which the authorised officer suspects on reasonable grounds is used for such a purpose;
(b) detain, enter and examine any vehicle which is used or which the authorised officer suspects on reasonable grounds is used to transport dairy food;
(c) require any person to produce for inspection any records in the possession of that person relating to dairy food;
(d) require any person on any dairy premises or in charge or apparently in charge of any vehicle used for the transportation of dairy food to –
(i) give such information as the authorised officer requests; and
(ii) answer any questions put to that person by the authorised officer;
(e) inspect and examine any records, product, material, equipment, plant or facility on any such premises or vehicle which in the opinion of the authorised officer relates to or is used for receiving, collecting, processing, producing, manufacturing, transporting, storing, distributing, packing, sealing, testing, selling, purchasing or disposing of dairy food;
(f) seize any records, product or material specified in paragraph (e);
(g) take copies of or extracts from any records specified in paragraph (e);
(h) take samples of any dairy food or any material, chemical or other substance or thing used or suspected of being used in connection with the production, preparation, processing, manufacture or testing of any dairy food;
(i) for the purpose of paragraph (h) open or cause to be opened any package, container or receptacle which contains or which the authorised officer suspects on reasonable grounds contains dairy food;
(j) conduct or cause to be conducted such examination or analysis as the authorised officer considers necessary to determine the composition or safety of any dairy food;
(k) monitor any specified functions required by a Code of Practice to be carried out by any person holding specified qualifications.
| The Committee notes that clause 45(1)(d) does not specifically abrogate the privilege against self-incrimination. The Committee accepts that the privilege may be claimed by a person on the grounds that the giving of the information or the answering of the question may tend to incriminate the person. |
Clause 46 deals with the Actions which an authorised officer may take including –
- order the dairy premises, vehicle, plant, machinery or equipment, as the case may be, to be forthwith cleaned and disinfected to the satisfaction of the authorised officer;
- order that the use of a specified area of any dairy premises or of any vehicle, plant, machinery or equipment in connection with dairy food be stopped;
- order that no dairy food or class of dairy food specified in the order be removed from the dairy premises for any purpose whatsoever or for any purpose specified in the order for such period of time as is specified in the order;
- order that any dairy food or class of dairy food specified in the order be seized, detained or destroyed.
- if an authorised officer is satisfied that any dairy food inspected by the authorised officer is unfit for human consumption, the authorised officer may add any colouring material to the dairy food to render it unsaleable for human consumption but so as not to make it unfit for use as food for animals.
Clause 47 provides that if an authorised officer has seized or detained any dairy food under the Act which in the opinion of the authorised officer is decayed, deteriorated or putrefied or in respect of which the owner consents to the destruction or other disposal thereof, the authorised officer may destroy or otherwise dispose of the dairy food.
Clause 49 provides for the procedure that applies when an authorised officer proposes to collect samples of dairy food for use in legal proceedings.
Clause 50 sets out offences relating to authorised officers such as obstructing, assaulting or hindering officers, refusal to sell a sample of produce to an officer, failure to comply with section 45(1)(d), giving false or misleading information under 45(1)(d), refuse to give correct name and address, refuse to give admission to an authorised officer or contravene or fail to comply with any lawful requirement, direction or order of an authorised officer.
Defence to failure to give information or to answer any question.
Clause 51 provides that –
It is a defence to a prosecution for the offence constituted by section 50(d) if the person charged with the offence proves that the authorised officer had not informed that person that he or she was required by this Act to give the information or reply to the question.
Section 50(d) provides that a person must not without reasonable cause fail or refuse to comply with a requirement under section 45(1)(d). Section 45(1)(d) requires any person on any dairy premises or in charge or apparently in charge of any vehicle used for the transportation of dairy food to give such information as the authorised officer requests and answer any questions put to that person by the authorised officer. Clause 54 provides a general penalty of 60 penalty units ($6,000).
Defence of spontaneous or natural deterioration of sample not available.
Clause 52 provides that -
It is not a defence to a prosecution or other legal proceeding under this Act which relates to any dairy food purchased for analysis under section 49 to prove that the part of the sample of the dairy food retained for future comparison has from spontaneous natural causes deteriorated, perished or undergone a material change in its constitution.
False or misleading information
Clause 53 provides that a person must not provide false or misleading information in or in connection with any application with respect to a dairy industry licence under this Act; or fail to comply with any notice or order made under this Act and that if a person does so the Authority may cancel any dairy industry licence issued, renewed or transferred upon that false or misleading information and disqualify that person from holding such a licence for such period as the Authority considers appropriate; or suspend the licence for such period as the Authority considers appropriate.
Clause 54 provides a general penalty provision under the Act of not more than 60 penalty units where the Act provides no other specific penalty.
General defence to a charge – due diligence and lack of knowledge.
Clause 56 provides a defence to a charge made under the Act if the person charged with the offence proves that he or she used due diligence to prevent the commission of an offence; and he or she did not know that an offence was being committed or consent to or connive in the commission of the offence.
Clause 59 deals with evidentiary provisions for any prosecution or other legal proceedings under the Act or the regulations including the presumption that –
any dairy food found on any dairy premises or other premises or vehicle used for the sale, manufacturing, storing, supplying or conveying for sale of dairy food is presumed in the absence of evidence to the contrary, to be intended for sale for human consumption.
Clause 60 provides an immunity for an authorised officers against personally liable for anything done or omitted to be done in good faith in the exercise of a power or the performance of a duty. Such liability attaching to the Authority.
Regulation making power
Clause 61 is a detailed regulation making power identical the regulation making powers in the Act to be repealed.
| The Committee notes the regulation making powers in the Act and accepts that they are appropriate to give effect to the purposes of the Act. |
Clause 62 repeals certain parts of the Dairy Industry Act 1992.
Clause 63 transfers funds from the Victorian Dairy Industry Authority (VDIA) to Dairy Food Safety Victoria for the purposes of this Act.
Clause 64 provides that the staff of VDIA are transferred to Dairy Food Safety Victoria on the same terms as conditions and accrued entitlements and benefits as prior to the transfer.
Clause 67 provides for the repeal of the Dairy Industry Act 1992 and the members of the Victorian Dairy Industry Authority constituted under the Dairy Industry Act 1992 go out of office; and Dairy Food Safety Victoria is the successor in law of the Victorian Dairy Industry Authority.
The Committee makes no further comment.
Electricity Industry Acts (Amendment) Bill
8.1
The Bill was introduced into the Legislative Assembly on 3 May 2000 by the Honourable John Brumby MLA with the Honourable Rob Hulls MLA. The Second Reading Speech was delivered on 4 May 2000.
8.2
The purpose of the Bill is to amend the Electricity Industry Act 1993, the Electricity Safety Act 1998, the Office of the Regulator-General Act 1994, the National Electricity (Victoria) Act 1997 and certain other Acts to make further provision for the regulation of the electricity industry.
8.3
Clause 2 provides that section 11 comes into operation on a day to be proclaimed. The remaining provisions of the Bill come into operation on proclamation but not later than by 31 December 2000.
| The Committee notes the following passage from the Explanatory Memorandum concerning the reason for a commencement by proclamation for clause 11 of the Bill. |
‘Section 11 (which introduces section 169F into the Electricity Industry Act 1993) does not have a default date on which it comes into operation because when it comes into operation is dependant on the date on which nationally it is agreed how competition will be introduced for domestic and small business customers. National agreement on those matters is not yet reached, however discussions and negotiations are ongoing’.
| Given that a national agreement must occur before the provisions in clause 11 may commence the Committee accepts the desirability of a commencement by proclamation clause in this instance. |
Electricity Industry Act 1993
Clause 9 inserts new sections 169A to 169D.
New section 169B creates fundamental consumer protection obligations, they are -
A term or condition in a contract for the supply or sale of electricity by a licensee to a relevant customer must not be inconsistent with –
(a) terms and conditions determined by the Office that –
(i) specify the circumstances in which the supply of electricity to premises may be disconnected; and
(ii) require the licensee to provide information specified by the Office about the rights and entitlements of customers; and
(iii) specify the circumstances in which the licensee requires access to premises of customers for the purpose of reading meters or otherwise; and
(iv) make provision for confidentiality of customer information; and
(b) any other terms and conditions determined by the Office.
(‘Office’ refers to Office of the Regulator-General).
Clause 11 inserts a new section 169F into the Act the section makes provision for certain technical aspects of the implementation of full retail competition on 1 January 2001 namely the exchange and use of customer information in order to facilitate customers choosing between retailers.
Electricity Safety Act 1998
Clause 19 deals with bushfire mitigation plans and inserts new sections 83A and 83B.
New section 83B provides that an electricity supplier may, after giving due notice in the prescribed form, for the purpose of an inspection, enter onto land at any reasonable time for the purposes of inspecting a private electric line and remain on the land for so long as is necessary to inspect the line. Written notice is to be given to the occupier if maintenance is required to be undertaken.
Clause 22 inserts a new section 162A the effect of which is to remove doubt as to the validity of certain regulations which were made without the publication in the Government Gazette of the necessary notice of decision to make them.
Office of the Regulator-General Act 1994
Clause 27 introduces a new Part 4A – ‘Special References’, consisting of new sections 34A to 34E.
New section 34A provides that the Office of the Regulator-General must conduct an investigation into any matter relating to a regulated industry which the Minister or the Minister administering the Electricity Industry Act 1993 by written notice refers to the Office under the Part. New section 34B deals with the conduct of such investigations.
New section 34D deals with powers relating to investigations, for example the service a summons and like related matters. 34D(6) provides that a person must not threaten, intimidate or coerce another person; or take, threaten to take, incite or be involved in any Action that causes another person to suffer any loss, injury or disadvantage because that other person assisted, or intends to assist, any investigation conducted by the Office.
New section 34D(7) provides that –
Civil proceedings do not lie against a person in respect of loss, damage or injury of any kind suffered by another person because of the making in good faith of a statement, or the giving in good faith of a document or information to the Office in connection with an investigation under this Part, whether or not the statement is made, or the document or information is given, in connection with a written submission or a public hearing.
[Refer to 8.4 concerning section 85 Constitution Act 1975].
8.4
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 28 inserts a new section 41(2) and declares that it is the intention of section 34D(7) to alter or vary section 85 of the Constitution Act 1975.
The Committee notes the section 85 Constitution Act 1975 statement in the Second Reading Speech –
I wish to make a statement pursuant to section 85 of the Constitution Act 1975 of the reasons why that section should be altered or varied by the Bill.
Part 4 of the Bill introduces a new part 4A into the Office of the Regulator-General Act 1994. In that new part 4A there is section 34D(7) which excludes civil proceedings for damage that may be suffered in respect of providing information or documents to an investigation conducted by the office under that part. The reason for limiting the jurisdiction of the Supreme Court with respect to section 34D(7) is to give persons who wish to make statements or provide information a degree of confidence that their statements or information can be made or provided without fear of litigation. This is likely to enhance the quality of the submissions and information made available to the office, and thus to contribute to the quality of its reports.
| 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.
Emergency Management (Amendment) Bill
9.1
The Bill was introduced into the Legislative Assembly on 3 May 2000 by the Honourable Andre Haermeyer MLA with the Honourable Rob Hulls MLA. The Second Reading Speech was delivered on 4 May 2000.
9.2
The purposes of the Bill are to –
- to amend the Emergency Management Act 1986 (the Act) to –
(i) establish the position of Emergency Services Commissioner; and
(ii) provide for the Emergency Services Commissioner to be the person responsible for the preparation and monitoring of standards for emergency services organisations;
- make other minor amendments to the Emergency Management Act 1986;
- make consequential amendments to the Country Fire Authority Act 1958, the Metropolitan Fire Brigades Act 1958 and the Victoria State Emergency Service Act 1987.
9.3
Clause 2 provides that the provisions of the Act come into operation on the day after Royal Assent.
Clause 4 inserts a definition for "emergency services agency", meaning any of the following, the Country Fire Authority, the Metropolitan Fire and Emergency Services Board, the Victoria State Emergency Service and any other prescribed agency.
Clause 6 inserts a new Part 4A establishing the position of Emergency Services Commissioner to be employed under Part 3 of the Public Sector Management and Employment Act 1998. The new Part sets out the functions and powers of the Commissioner under the Act and imposes upon the Commissioner the duty to establish and monitor standards for the prevention and management of emergencies to be adopted by all emergency services agencies; to advise, make recommendations and report to the Minister on any issue in relation to emergency management; to encourage and facilitate co-operation between all agencies to achieve the most effective utilisation of all services; to Act as the Executive Officer of the Council.
New section 21F provides that for the purposes of carrying out functions or powers under the Act, the Commissioner may, in writing, require any agency to give to the Commissioner any information that the Commissioner reasonably believes is necessary.
New section 21G provides that no obligation to maintain secrecy or other restriction on the disclosure of information obtained by or furnished to persons employed in the public service or by an agency, where imposed by an enactment or rule of law, applies to the disclosure of information required by the Commissioner under section 21F.
The Commissioner or any other person must not divulge or communicate, except in the course of duty to another person performing duties under this Part, any information which has come to his or her knowledge by reason, directly or indirectly section 21G if the person from whom that information was obtained could not, but for that section, lawfully have divulged that information to the Commissioner or other person.
New section 21H is a delegation provision in these terms –
The Commissioner may, by instrument, delegate to any person or class of person employed or engaged in the administration of this Act, all or any of the Commissioner's powers and functions.
| The Committee notes the delegation provision does not refer to delegation other than the power of delegation itself. That is that the delegation provision admits to the possibility of sub-delegations. The Committee will write to the Minister to clarify whether this is intended, and if so, the reasons why the Commissioner may delegate his or her power to delegate. |
Part 3 – Amendment to other Acts
Clauses 7, 8 and 9 make consequential amendments to the Country Fire Authority Act 1958, the Metropolitan Fire Brigades Act 1958 and the Victoria State Emergency Service Act 1987 to provide that the Authority, the Board or the Service under those respective Acts, must use their best endeavours to carry out their functions in accordance with the standards prepared by the Emergency Services Commissioner under Part 4A of the Act. Each of those bodies must report in each 3 month period, on the Action it has taken to comply with the standards prepared by the Commissioner under Part 4A of the Act.
The Committee makes no further comment.
Health Practitioner Acts (Amendment) Bill
10.1
The Bill was introduced into the Legislative Assembly on 3 May 2000 by the Honourable John Thwaites MLA with the Honourable Rob Hulls MLA. The Second Reading Speech was delivered on 4 May 2000.
10.2
The purpose of the Bill is to make miscellaneous amendments to the Dental Practice Act 1999 and the Medical Practice Act 1994.
10.3
Clause 2 provides that sections 1 and 2 come into operation on the day after Royal Assent. Part 3 comes into operation on 1 July 2000. The remaining provisions of this Act come into operation on a day or days to be proclaimed but not later than by 27 June 2001.
Part 2 – Medical Practice Act 1994 (the Act)
Clause 3 provides for amended definitions in the Act including for ‘unprofessional conduct’. The definition for unprofessional conduct includes, the contravention of, or failure to comply with a condition, limitation or restriction on the registration of the medical Practitioner imposed by or under this Act.
Clause 4 revises section 5(2) to require applications for registration to include satisfactory evidence of professional indemnity insurance.
Clause 5 amends section 7(2) and will allow the Board to refuse an application, or grant an application on conditions if professional indemnity insurance is inadequate.
Clause 11 inserts a new section 18(4) to provide that if the Board notifies a medical practitioner of any condition, limitation or restriction it has imposed on the medical practitioner's registration, the medical practitioner must return the current certificate of registration to the Board for notation of that condition, limitation or restriction on the certificate.
Clause 12 inserts a new section 21A to provide that, except where a court orders otherwise, or where damages do not exceed a minimum level as determined by the Board*, where a person has claimed damages or other compensation from a registered medical practitioner for alleged negligence in the course of providing medical care, the medical practitioner must provide the Board with information about the amount of damages or other compensation the medical practitioner is ordered by a court to pay within 30 days after the order is made.
The new section further provides that if a registered medical practitioner has in respect of an indictable offence been committed for trial; or been convicted or found guilty of the offence the medical practitioner must notify the Board within 30 days after that committal for trial, conviction or finding of guilt.
*The Board, by notice published in the Government Gazette, may fix an amount of damages or compensation referred to in the section.
Clause 14 inserts a new section 22(2) providing that a person may make a complaint to the Board about a person who was a registered medical practitioner but has ceased to be a registered medical practitioner if the complaint relates to conduct of the other person at a time when that other person was a registered medical practitioner.
Clause 17 inserts a new section 28(2) providing that if the Board believes the ability of a registered medical student to have direct patient contact as part of her or his course of study may be affected because of the physical or mental health of the student; or the student has an incapacity; or the student is an alcoholic or drug-dependent person the Board may appoint one of its members to conduct a preliminary investigation into the matter.
Clause 23 inserts a new section 49(e) to enable a hearing panel to determine that any information that might enable the registered medical practitioner or medical student who is the subject of the hearing to be identified, not be published or broadcast prior to the making of a final determination if the panel considers it necessary to do so to avoid prejudicing the administration of justice or for any other reason in the interests of justice.
Clause 24 inserts a new section 51A to enable a hearing panel to conduct an investigation related to a person, even though that person is no longer registered under the Act but was so registered at the time of the complaint or at the time the Board determined to conduct a hearing.
Clause 26 inserts a new section 58(c) and creates an offence of publishing information identifying a practitioner or student if the panel has made a determination prohibiting the publication or broadcast of the identity of such person before the making of a final determination.
Clause 29 inserts new sections 64A to 64D.
New section 64A provides that a person is not entitled to have direct patient contact in a hospital or other teaching facility as part of a course of medical study or medical training at a medical school accredited by the Australian Medical Council unless the person is a registered medical student or a registered medical practitioner under this Act.
New section 64B provides that the Governor in Council may, on the recommendation of the Board, by notice published in the Government Gazette, issue guidelines about the minimum standards acceptable to the Board for or with respect to the advertising of medical services.
New section 64C deals with the power of the courts, where there has been a contravention of the advertising provisions, to order corrective advertising at the expense of the person; and in the manner and at the times specified in the order.
Clause 30 amends section 66(1) and inserts new functions of the Board.
Clause 31 inserts new section 75A and 75B and allows the Board to pass resolutions without meeting and methods of communication that may be approved by the Board.
Clause 32 repeals Division 2 of Part 6 to abolish the Intern Training Accreditation Committee
Inspection, search and seizure powers
Clause 34 inserts new section 93 and 93A to 93D.
New section 93 deals with the issue of an identification card to each person appointed by the Board to apply for or execute search warrants.
New section 93A deals with powers of entry with a warrant.
If a magistrate is satisfied by evidence on oath, whether oral or by affidavit, that there are reasonable grounds for suspecting that there is on the premises a particular thing that may be evidence of the commission of an offence against this Act or the regulations or of grounds for the suspension or cancellation of the registration of a medical practitioner or medical student, the magistrate may issue a search warrant authorising any person named in the warrant to enter the premises or the part of the premises named or described in the warrant; and to search for and seize a thing named or described in the warrant; and to bring the thing before the Court so that the matter may be dealt with according to law.
A search warrant must be issued in accordance with the Magistrates' Court Act 1989 and in a form prescribed under that Act and the rules to be observed with respect to search warrants mentioned in that Act extend and apply to warrants under the section.
New section 93B provides that immediately before executing a search warrant, a person named in the warrant must announce that he or she is authorised by the warrant to enter the premises. The person need not make such an announcement if he or she believes on reasonable grounds that immediate entry to the premises is required to ensure the safety of any person or that the effective execution of the search warrant is not frustrated.
New section 93C provides that a copy of the search warrant is to be given to the occupier.
New section 93D provides that where evidence is seized on request by the occupier, copies or receipts are to be given, to the occupier as soon as practicable after the seizure.
Part 3 – Dental Practice Act 1999 (the Act)
Clause 36 makes a number of amendments to the Act related to the need for an applicant for registration or renewal of registration as a dental care provider to satisfy the Board that they have sufficient professional indemnity insurance.
Clause 39 inserts a new section 46(e) and establishes an offence to publish information identifying a dental care provider if the panel has made a determination prohibiting the publication or broadcast of the identity of such person prior to the making of a final determination or if the panel considers it necessary to do so to avoid prejudicing the administration of justice or for any other reason in the interests of justice.
| The Committee draws attention to its comments relating to section 85 Constitution Act 1975 provisions, made in respect to the Psychologists Registration Bill at 14.4 later in this report. |
The Committee makes no further comment.
Health Services (Governance) Bill
11.1
The Bill was introduced into the Legislative Assembly on 3 May 2000 by the Honourable John Thwaites MLA with the Honourable Rob Hulls MLA. The Second Reading Speech was delivered on 4 May 2000.
11.2
The main purpose of the Act is to amend the Health Services Act 1988 (the Act) to facilitate the disaggregation of certain health care networks and the re-organisation of public health care agencies in the metropolitan area.
The Committee notes the following points from the Second Reading Speech –
The Bill enables the creation of new public statutory health care agencies to be known as metropolitan health services, and provides mechanisms to enable existing health care networks to be transformed into metropolitan health services.
The Bill inserts a new division 9B into Part 3 of the Health Services Act 1988 which sets out the governance arrangements, functions and powers of metropolitan health services. Metropolitan health services are to be governed by boards of directors appointed by the Governor in Council on the recommendation of the Minister for Health. Directors will be appointed for their capacity to fulfil a governance role. Each board must include at least one person who is able to reflect the perspectives of users of health services.
The first scenario involves the transformation of an existing network into a new metropolitan health service, without disaggregating that network. Under proposed new division 2 of part 9, a new metropolitan health service may be created by an order in council. When such an order is made, proposed new division 5 of part 9 enables the staff, property, rights and liabilities of a former network to become staff, property, rights and liabilities of the new metropolitan health service. It also enables the incorporation of the network to be cancelled. In these circumstances, the new metropolitan health service will simply become the successor in law of the former network for all purposes, and will be able to benefit from trusts in relation to the former network and all its predecessor agencies. I will deal specifically with the issue of trusts shortly.
The second scenario is the disaggregation of existing networks and the allocation of staff, property, rights and liabilities to new health care agencies. Aside from enabling the creation of new metropolitan health services, the Bill also permits the establishment of new community health centres. This scenario is more complex because staff, property, rights and liabilities will need to be divided and allocated to various newly created agencies.
Proposed new division 6 of Part 9 provides for the making of orders and instruments which allocate specified staff, property, rights and liabilities of a network which is being disaggregated to designated health care agencies. Those agencies then become the successors in law of the former network in respect only of the property, rights and liabilities which are Actually transferred to them. The designated agency also becomes the employer of staff who are transferred to it.
An administrator may be appointed to a network which is to be disaggregated.
In addition, a network which is undergoing disaggregation will continue to exist as a legal entity until it is abolished by order in council under proposed new section 223 of the Act. The incorporation of a network will only be cancelled when, as far as practicable, all property, rights and liabilities have been allocated to other agencies. If there are any residual property, rights and liabilities -- other than those under trusts -- they will revert to the Crown.
- Trusts
The Bill also contains provisions to preserve the operation of trusts, and to transfer their application to the appropriate successor of a health care network. This means that the appropriate successor will be eligible or entitled to benefit from a trust. This is intended to ensure that a trust does not fail simply because of the changes to the legal structures which govern hospital services. Donations for public health care can therefore continue to be used for the benefit of the community.
The Act currently provides that the health care networks now in existence are, for the purposes of trusts, the successors of the agencies that they immediately replaced, and also of all of the former agencies that, at any time, were amalgamated, as part of the chain of succession leading up to a network.
The second situation is where a network is disaggregated, and is therefore succeeded by more than one agency. It would not be appropriate for the Bill to transfer the eligibility or entitlements under all relevant trusts to one particular successor. Instead, it creates powers for orders to be made by the Governor in Council, to ensure that trusts are to be applied in relation to the most appropriate successor.
In 1995 the original metropolitan hospitals were established. On 1 August 1995 these original metropolitan hospitals were aggregated, to form new metropolitan hospitals known as health care networks. It is from this date that it became the norm for a number of hospital campuses in the metropolitan area to be governed by one incorporated body.
Therefore new section 214 of the Act provides that a new metropolitan health service is to benefit from trusts in relation to a specified original metropolitan hospital. It is also to benefit from trusts that apply to all of the former agencies of that original metropolitan hospital. For this to occur, an order of the Governor in Council must be made specifying which metropolitan health service is to be the successor of each original metropolitan hospital, for the purposes of any trust. Regard must be had by the minister to the campuses which are to be operated by the new metropolitan health service, in recommending that such an order be made. This is intended to enable trust funds or property to follow the campus.
11.3
Clause 2 provides that the Act comes into operation on a day to be proclaimed but not later than by 1 July 2001.
Clause 5 amends Schedule 5, providing that metropolitan health services may be altered by Governor in Council to add, remove or amend the name of a metropolitan health service.
Clause 6 inserts a new section 24(2A) to provide that if the Secretary directs a metropolitan health service to amend or alter its core objects, the metropolitan health service must amend or alter its core objects accordingly.
Clause 7 amends section 42 to confer on the Secretary the power to give directions to a public hospital concerning the extent to which and the conditions on which a hospital is required to obtain or purchase facilities, services, equipment or supplies provided by another hospital or another person or body.
Clause 8 inserts a new Division 9B into Part 3 of the Act consisting of new sections 65P to 65ZG, concerning metropolitan health services. The Division relates to the governance of metropolitan health services such as, incorporation, a board of directors, directors, advisory committees and matters concerning practice and procedure.
New section 65Y deals with immunity of directors and provides –
(1) A director of a board of a metropolitan health service is not personally liable for anything done or omitted to be done in good faith –
(a) in the exercise of a power or the discharge of a duty under this Act; or
(b) in the reasonable belief that the Act or omission was in the exercise of a power or the discharge of a duty under this Act.
(2) Any liability resulting from an Act or omission that would but for sub-section (1) attach to a director of the board of a metropolitan health service attaches instead to the metropolitan health service.
| The Committee notes that notwithstanding the immunity provision an affected person may seek to recover damages from the metropolitan health service instead of the director. |
Clause 9 amends section 141 and requires identifying information regarding patients to be kept confidential. The amendment will permit the patient information to be supplied to persons providing support functions for one or more metropolitan health services to enable them to perform their functions, for example records management.
Clause 10 inserts a new section 157G and declares that it is the intention of section 226 to alter or vary section 85 of the Constitution Act 1975. [Refer to 11.4 below].
Clause 11 inserts a new Part 9 consisting of new sections 179 to 229. The new part concerns transitional arrangements relating to the metropolitan health services established by the Bill and deals with matters such as the transfer of assets and liabilities, transfer of staff, appointment of an administrator and the legal status and re-arrangement of charitable and non-charitable trusts between entities that are abolished or modified and those established under the provisions of the Bill.
New section 181 provides that the Governor in Council, by Order published in the Government Gazette may, on the recommendation of the Minister, establish a metropolitan health service.
New sections 185 and 189 limit the period in which transitional orders may be made under Division 2 and 3, to 12 months after the commencement date of the Bill.
New Division 5 of Part 9 (new sections 193 to 205) deals with the transfer of property, rights and liabilities of metropolitan hospitals on cancellation of incorporation.
New section 204 deals with the transfer of hospital employees to new health services on the same terms and conditions and accrued benefits and entitlements as before the transfer.
New Division 6 deals with transfer of property, rights and liabilities before cancellation of incorporation of metropolitan hospitals, that is, pending the disaggregation of its services. The Division also deals with the important matters concerning the legal status and rearrangement of trusts (see comments in second reading speech above).
New sections 220 and 221 provide the same staff transfer provisions as in section 204 (above).
New section 228 clarifies that the amendments made by the Bill relating to trusts apply whether the trust was created before, on or after clause 11 comes into operation.
Clause 12 inserts Schedule 5 which will contain the names of the metropolitan health services to be established under the Act.
Mental Health Act 1986
Clause 13 inserts a new section 120A(3)(ga) requiring patient identifying information to be kept confidential. The amendment will allow the disclosure of information to identified persons who provide support functions for one or more metropolitan health services to enable them to carry out those functions. For example this may include functions such as records management or computer services.
11.4
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 10 inserts a new section 157G and declares that it is the intention of section 226 to alter or vary section 85 of the Constitution Act 1975.
Clause 11 inserts a new section 226 provides that nothing done under Division 2, 3, 5 or 6 or section 190 gives rise to any cause or right of action or application before any court or tribunal. This includes the appointment of an administrator, the establishment of a metropolitan health service or community health centre, the cancellation of incorporation of a metropolitan hospital, the making of orders allocating property, rights and liabilities to another agency, or the making of orders in relation to trusts or staff.
The Committee notes the section 85 Constitution Act 1975 statement in the Second Reading Speech –
Clause 11 inserts a new section 226 into the Health Services Act 1988. Section 226 provides that nothing done under divisions 2, 3, 5 or 6 of part 9 or section 190 gives rise to any cause or right of Action or application before any court or tribunal. Clause 10 inserts a new section 157G which provides that it is the intention of section 226 to alter or vary section 85 of the Constitution Act 1975.
The reason for altering or varying section 85 is to ensure that nothing done under divisions 2, 3, 5 or 6 of new part 9 or new section 190, including the following:
- the creation of new public health care agencies;
- the transformation of metropolitan health care networks into metropolitan health services;
- the disaggregation and abolition of health care networks; or
- the appointment of an administrator
is delayed or prevented by legal proceedings. This provision is considered necessary to enable the essential restructuring of Melbourne's public hospital system to proceed in an effective and coordinated manner, and without disruption to the provision of services.
| 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.
Land (Revocation of Reservations) Bill
12.1
The Bill was introduced into the Legislative Assembly on 3 May 2000 by the Honourable Sherryl Garbutt MLA with the Honourable Mary Delahunty MLA. The Second Reading Speech was delivered on 4 May 2000.
12.2
The main purpose of the Bill is to provide for the revocation of reservations and a Crown grant affecting various parcels of land.
12.3
Clause 2 provides that the Act comes into operation on the day after Royal Assent.
The parcels of land covered by the provisions of the Bill are located at the Boort racecourse, Stawell hospital site land, Lorne, Albert Park and Clunes. Further particulars of the sites are found in the 3 Schedules to the Act.
Clause 9 amends the definition of ‘Albert Park’ contained in the Australian Grand Prix Act 1994. The land shown in Schedule 3 will not form part of ‘Albert Park’.
Clause 10 provides that the Registrar of Titles must make any recordings in or amendments to the Register under the Transfer of Land Act 1958 that are necessary because of the operation of any provision contained in the Act.
The Committee makes no further comment.
National Parks (Amendment) Bill
13.1
The Bill was introduced into the Legislative Assembly on 3 May 2000 by the Honourable Sherryl Garbutt MLA with the Honourable Andre Haermeyer MLA. The Second Reading Speech was delivered on 4 May 2000.
13.2
The purposes of the Bill are to –
- amend the National Parks Act 1975 (the Act) to provide for land to be included in the Alpine National Park; and to make further provision for parks in that Act; and;
- make other miscellaneous amendments to the National Parks Act 1975; and
- amend the Alpine Resorts Act 1983 and the Alpine Resorts (Management) Act 1997.
13.3
Clause 2 provides that –
- sections 1, 2 and 6 come into operation on the day after Royal Assent.
- section 9(3) is deemed to have come into operation on the day on which section 10(2) of the National Parks (Alpine National Park) Act 1989 came into operation.
- the remaining provisions of this Act come into operation on a day or days to be proclaimed but not later than by 1 February 2001.
The Committee notes the retrospective provision is included to ensure that the corrected description of the Alpine National Park applies from the proclamation of the park. The Committee however is unable to determine whether any persons rights may be adversely affected or in any way diminished as a result of the retrospective amendment and will write to the Minister to seek assurance that this will not occur. |
Clause 5 amends section 11 in the Act to empower the National Parks Advisory Council to advise the Minister on any proposed excision from a park referred to it by the Minister; and the Minister must cause a copy of any advice received to be laid before both Houses of Parliament within 10 sitting days after it is received.
Clause 6 inserts a new section 27B into the Act concerning native title rights, declaring that –
The amendments made to this Act by the National Parks (Amendment) Act 2000 are not intended to affect native title rights and interests.
Clause 7 amends section 37(8) of the Act to add a further area of the Alpine National Park where deer hunting by stalking may be permitted.
Clause 8 amends section 53 to incorporate certain land to the Alpine National Park and continues two grazing licences and two leases in relation to the land so incorporated.
The Committee notes new section 56(a) and (b) concerning the leases entitled ‘Tunnel under Falls Creek Alpine Resort’ and ‘Northern Foreshore of Part Rocky Valley Reservoir’ granted by the Minister for Conservation and Land Management. The Committee is unable to determine whether any rights concerning these leases may be adversely affected or diminished by the provisions in the Bill and will write to the Minister to clarify the intention of the amendments in the Bill. |
Clauses 9, 10 and 11 make amendments to the Schedules of the Act and make a number of additions to various State Parks mentioned in those Schedules.
The Committee makes no further comment.
Psychologists Registration Bill
14.1
The Bill was introduced into the Legislative Assembly on 3 May 2000 by the Honourable John Thwaites MLA with the Honourable Rob Hulls MLA. The Second Reading Speech was delivered on 4 May 2000.
14.2
The main purposes of the Bill are to –
- protect the public by providing for the registration of psychologists and investigations into the professional conduct and fitness to practise of registered psychologists; and
- regulate the advertising relating to the provision of psychological services; and
- establish the Psychologists Registration Board of Victoria and the Psychologists Registration Board Fund; and
- repeal the Psychologists Registration Act 1987 and make consequential amendments to other Acts; and
- provide for other related matters.
The Bill is one of a number of model Victorian Health Acts such as the Dental Practice Act 1999 and the Physiotherapists Registration Act 1998.
The Committee notes the Second Reading Speech –
The current Psychologists Registration Act was passed in 1987. It establishes the Psychologists Registration Board, provides for registration and discipline of psychologists and probationary psychologists, and for approval of registered psychologists as specialist psychologists.
Review of the Act was undertaken during 1997-98, in accordance with national competition policy requirements and as part of a rolling departmental review of health practitioner regulation. During review of the Act, consultation occurred with a large number of organisations and professional groups.
The review recommended that restrictions on statutory registration were necessary to achieve the objectives of the legislation and should be retained. Restrictions on specialist approvals, inoperative provisions relating to psychological tests and consent to use of certain names by bodies corporate and similar entities were not considered necessary to achieve the objectives of the legislation.
In view of the substantial inconsistencies between the Act and more modern health practitioner registration Acts, the review recommended it be repealed and a new Act introduced based on the model contained in the Medical Practice Act 1994 and incorporating the above recommendations.
Accordingly, the principal purpose of this Bill is to protect the public by providing for the registration of psychologists and to enable investigations into the professional conduct and fitness to practise of registered psychologists.
The Bill regulates advertising relating to provision of psychological services, establishes the Psychologists Registration Board of Victoria and the Psychologists Registration Board Fund and repeals the current Psychologists Registration Act 1987.
The Bill reflects the model of health practitioner regulation contained in the Medical Practice Act 1994, together with recent improvements and amendments to that model made pursuant to the Health Practitioner Acts (Amendment) Bill 2000.
14.3
Clause 2 the Act comes into operation on proclamation but not later than by 1 June 2001.
Clause 3 provides for ‘definitions’ in the Act including for ‘unprofessional conduct’ which includes ‘a finding of guilt for an indictable offence in Victoria or an equivalent offence in another jurisdiction’.
Part 2 deals with registration under the Act including qualification for registration renewal of and refusal to register. Clause 17 deals with the register kept by categories of registration.
Part 3 deals with investigations (formal and informal hearings) of complaints about the professional conduct of a psychologist. The Board must conduct a preliminary investigation into a complaint against a psychologist. Investigations may include medical and psychiatric examinations. The Board may refer a matter to a formal or informal hearing. If necessary the Board may suspend registration pending the outcome of a formal hearing.
Division 2 deals with preliminary investigations into the health of registered psychologist including the requirement (with the consent of the psychologists) to attend medical examinations. Failing consent the Minister may appoint a medical Practitioner to conduct the examination. If the psychologist does not agree to attend such an examination the Board may refer the matter to a formal hearing.
Division 3 deals with formal and informal hearings as constituted by the Board.
An informal hearing is not open to the public and legal representation is not permitted. The psychologist may request a formal hearing at the conclusion of the informal hearing. An informal hearing panel may also refer the matter to a formal hearing panel.
At a formal hearing the psychologist is entitled to be represented unless otherwise determined by the panel. The proceedings at a formal hearing are open to the public. The identity of witnesses is protected against publication or broadcast. For unprofessional conduct of a serious nature the Board may inter alia, impose a fine of up to 100 penalty units ($10,000), suspend registration or cancel registration of the dental care provider.
Division 4 provides general provisions relating to investigations and provides that an investigation or hearing may continue even where a person’s registration has ceased or been suspended; the rules of natural justice apply to informal and formal hearings; applies certain provisions of the Evidence Act 1958 to such hearings. The panel is to give reasons within 28 days of its determination.
Clause 56(1) provides that the Board must give notice of its determination in the Government Gazette and notify certain persons and organisations of its determination including an employer, a registering authority in another State or Territory or an overseas authority.
Clause 56(3) provides that where a notice is given under section 55(1) no Action for defamation lies against the Board or its members for the giving of the notice. (Refer to 1.4 concerning amendment, alteration or variation to section 85 of the Constitution Act 1975).
Clause 57 provides that it is an offence to disclose the identity of a complainant.
Part 4 – Review by the Victorian Civil and Administrative Tribunal
Clause 59 provides that effected persons may apply for a review of a decision by the Victorian Civil and Administrative Tribunal (VCAT).
Part 5 – Offences
Part 5 deals with offences such as false claims by persons regarding registration; practising without registration; obtaining registration by fraud; false and misleading or deceptive advertising. The Part also provides that a court may direct corrective advertising by a psychologist.
Part 6 – Administration
Part 6 deals with the establishment, powers, functions, membership, term of office, resignation, and removal of members, fees and allowances, staff, immunities, practices and procedures and other like matters of the Psychologists Registration Board of Victoria (the Board).
Immunity
Clause 80 provides an legal immunity for a Board member or registrar for anything done or omitted to be done in good faith or in the exercise of a power or the discharge of a duty under the Act such liability attaching instead to the Board.
| The Committee notes that notwithstanding the immunity granted to directors an affected person may, instead, have an action against the Board itself. |
Clause 82 deals with written delegations by the Board of certain powers and functions under the Act to either a member of the Board or members of the staff of the Board, other than powers to refuse to grant or refuse to renew registration; or the power to impose or to amend, vary or revoke any condition, limitation or restriction on registration; or the power to conduct any hearing or to make any determination under Parts 2 or 3 and the power to delegate.
| The Committee notes the powers of delegation provided in the Bill by clause 82, and believes they are appropriate in the circumstances. |
Part 7
Part 7 deals with the establishment of the Psychologists Registration Board Fund and related financial matters.
Part 8
Part 8 deals with enforcement and supplementary powers such as the issue of identity cards to those delegated to conduct searches under warrant or for the purposes of the Act.
Clauses 88 to 91 deal with powers of entry with a warrant issued in accordance with the Magistrates’ Court Act 1989. The standard procedure relating to announcement before entry under a warrant and copy of warrant to be given to an occupier are provided. A person need not make an announcement before entry under a warrant where the person believes on reasonable grounds that immediate entry to the premises is required to ensure the safety of any person or that the effective execution of the search warrant is not frustrated.
Clause 92 allows the Board to fix fees under the Act for 12 months and permits the Board to vary, waive, refund in whole or in part any fee in certain cases and requires any fee it has fixed to be published in the Government Gazette.
Clause 93 provides that regulations may be made for the purposes of the Act including penalties of up to 10 penalty units ($1000) for a breach of the regulations.
| The Committee notes the regulation making powers provided in the Bill and believes they are appropriate to give effect to the purposes of the Bill. |
Clause 95 repeals the Psychologists Registration Act 1987.
Clause 96 provides that the new Board succeeds the old Board. The new Board is responsible for rights, assets, liabilities and obligations of the old Board.
Clause 97 provides that investigations commenced under the Act to be repealed may be completed under that Act as though it had not been repealed.
Clauses 98 to 102 and the Schedule further provide for transitional and consequential amendments to the Act and other Acts.
13.4
Report to the Parliament pursuant section 4D(b)(iii)of the Parliamentary Committees Act 1968 where an issue is raised as to the jurisdiction of the Supreme Court within the meaning 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.
1. The Committee notes that the terms of clause 56(3) 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 Second Reading Speech did not include a section 85 statement and further notes that there was no clause in the Bill declaratory of a section 85 amendment, alteration or variation in the usual manner. Further the Committee notes that other similar health related Acts such as the Dental Practice Act 1999, Medical Practice Act 1994 and the Physiotherapists Registration Act 1998 contain section 85 statements for the identical or similar immunity provision. The Committee notes its comment in respect to the Chinese Medicine Registration Bill in Alert Digest No.5 of 2000 where again no section 85 statement was included. 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 1968.1 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 2. The Committee further notes that the Health Practitioners Acts (Amendment) Bill amends the Dental Practice Act 1999 and the Medical Practice Act 1994 but does not remove the section 85 provisions in those Acts relating to the identical provision as in clause 56(3) above. Whilst the Committee appreciates that it has not yet received a response from the Minister to its request concerning the lack of a section 85 clause in the Chinese Medicine Registration Bill, it is concerned at the disparity in these model health related Acts as to the treatment of the identical provision concerning immunity for the respective Boards established by those Acts. The Committee will write to the Minister to clarify the issue of immunity provisions in all these Acts and in the Bill. |
The Committee makes no further comment.
State Taxation Acts (Miscellaneous Amendment) Bill
15.1
The Bill was introduced into the Legislative Assembly on 3 May 2000 by the Honourable John Brumby MLA with the Honourable Rob Hulls MLA. The Second Reading Speech was delivered on 4 May 2000.
15.2
The main purposes of the Bill are –
- to repeal the Gift Duty Act 1971 and the Probate Duty Act 1962;
- to amend the employment agency provisions of the Pay-roll Tax Act 1971;
- to amend the land-rich provisions of the Stamps Act 1958.
15.3
Clause 2 the provisions in the Bill (except Parts 3 and 4) come into operation on the day after Royal Assent. Parts 3 and 4 come into operation on 1 July 2000.
Clause 3 repeals the of Gift Duty Act 1971.
Clause 4 repeals the Probate Duty Act 1962 and provides that any liability for duty or interest under the Act that was outstanding immediately before the commencement of this section is abolished.
Clauses 6 and 7 make amendments to the Stamps Act 1958.
The Committee makes no further comment.
Superannuation Acts (Amendment) Bill
16.1.
The Bill was introduced into the Legislative Assembly on 3 May 2000 by the Honourable John Brumby with the Honourable Rob Hulls. The second Reading Speech was delivered on 4 May 2000.
16.2
The main purpose of the Bill is to add provisions relating to superannuation contributions tax and make miscellaneous amendments to certain Superannuation Acts.
The Acts amended are the Emergency Services Superannuation Act 1986, the Government Superannuation Act 1999, the Parliamentary Salaries and Superannuation Act 1968, the State Employees Retirement Benefits Act 1979, the State Superannuation Act 1988, the Superannuation (Portability) Act 1989 and the Transport Superannuation Act 1988.
The Committee notes the following extract from the Second Reading Speech –
The purpose of this Bill is to introduce legislation to implement the Commonwealth superannuation contributions tax on Victorian public sector superannuation schemes and make miscellaneous amendments to the Emergency Services Superannuation Act 1986, the Government Superannuation Act 1999 and the Parliamentary Salaries and Superannuation Act 1968.
In conclusion, this Bill implements the requirements of the Commonwealth's superannuation contributions tax, otherwise known as the surcharge. These changes bring Victoria into line with other States and will save taxpayers up to $3 million per annum. When combined with other changes to superannuation announced in the May 2 Budget, they confirm the extent of the Government's reform agenda in superannuation.
16.3
Clause 2 provides that other than section 9 the provisions in the Bill come into operation on the day after Royal Assent. Section 9(1) is deemed to have come into operation on 14 December 1999. Section 9(2) comes into operation on the day on which sections 11 and 12 of the Parliamentary Committees (Amendment) Act 1999 come into operation.
Part 2 – Emergency Services Superannuation Act 1986
Clause 4 amends existing provisions in section 21J to permit dependants to claim some or all of the balance of accounts of deceased beneficiaries. New provisions empower the Board to adjust amounts in beneficiary accounts by the amounts of superannuation contributions tax imposed on the Board.
Clause 5 amends section 23 to provide that a review of Board decisions must be made within 28 days to Victorian Civil Administration Tribunal.
Clause 6 inserts new sections 25B and 25C of the above Act.
The Board is empowered to deduct amounts according to a prescribed formula and to commute pension entitlements in order to meet any surcharge deduction amounts, providing other commutation rights are not prejudiced. Recipients of pensions receiving an assessment notice after pension payments commenced may elect to commute pension entitlements to pay the contribution tax, providing other commutation rights are not prejudiced.
Part 3 – Superannuation Act 1999
Clause 8 clarifies the meaning of the term "specified standards" in the Act by linking it to references under the Transport Superannuation Act 1988. Relevant amendments make past and future contributions subject to the surcharge provisions.
Part 4 – Parliamentary Salaries and Superannuation Act 1968
Clause 9 amends section 6 of the above Act to enable the Chairman of the Economic Development Committee (EDC) to receive the same additional salary as a Chairman of a Joint Investigatory Committee (10% increase) from the date of the formation of the Committee until its cessation.
The Committee notes that section 9(1) has retrospective effect but accepts that this is consistent with the purposes of the Act in dealing with the arrangements made for the Parliamentary Committees of the 54th Parliament. The Committee notes that this amendment will entitle the Chairman of the Economic Development Committee to be paid remuneration retrospectively to the time when that Committee was established in December 1999. The Committee considers that this is appropriate and is consistent with entitlements of other Committee Chairs. |
Clause 10 adds new standard definitions relating to superannuation contributions tax.
Clause 11 adds new standard provisions to establish and operate member surcharge debt accounts for tax liabilities of members relating to surcharges due from 20 August 1996. Interest is payable on outstanding amounts at a prescribed rate. Members may pre-pay outstanding amounts. The Parliamentary Trustee is empowered to reduce members’ benefits according to a set formula. Pension entitlements may be commuted to reduce the surcharge providing that other commutation rights under the Act are not prejudiced.
Part 5 – Amendment of State Employees Retirement Benefits Act 1979
Clause 12 inserts various relevant definitions relating to surcharges.
Clause 13 inserts new sections 74CA-74CC. They contain similar provisions relating to the establishment and operation of surcharge debt accounts, payment of interest on outstanding amounts owed, option for members to pre pay sums owing. The Board is empowered to use the prescribed formula to reduce benefits, commute pension entitlements and deal with deferred benefits in limited ways to carry out the purposes of the amending Act. A similar provision is inserted to prevent prejudice to existing commutation rights.
Part 6 – Amendment of State Superannuation Act 1988
Clause 14 inserts relevant definitions in the above Act.
Clause 15 inserts new sections 71C-71E in the above Act and makes similar amendments to those described in clause 13 above.
Part 7 – Amendment of Superannuation (Portability) Act 1989
Clause 16 inserts a new section 9A in the above Act and requires superannuation contributions to be subject to the relevant surcharge provisions.
Part 8 – Amendment of Transport Superannuation Act 1988
Clause 17 inserts new relevant definitions in the above Act.
Clause 18 inserts new sections 44CA-CC after section 44C of the above Act and makes similar amendments to those described in clause 13 above.
The Committee makes no further comment.
17.1
The Bill was introduced into the Legislative Assembly on 3 May 200 by the Honourable John Thwaites MLA with the Honourable Bob Cameron MLA. The Second Reading Speech was delivered on 4 May 2000. The section 85 Constitution Act 1975 statement was made on 11 May 2000.
17.2.
The main purpose of the Bill is to amend the Tobacco Act 1987 (the Act) to –
- make provision for smoke-free dining;
- ban smoking in specified shopping centres;
- make further provision regulating advertising of tobacco;
- require tobacco retailers to display health warning signs or smoking cessation programs;
- increase penalties for selling tobacco products to minors from $1,000 to $5,000;
- prescribe penalties for selling contraband tobacco;
- establish a negative licensing system for tobacco retailers;
- retain the role of municipal council in enforcement.
From 1 November 2000 restaurants, eateries and hotel dining areas will be smoke free.
Vendors who sell cigarettes to minors will incur heavy financial penalties and may be banned from dealing in tobacco products.
The new provisions also aim to reduce and discourage juvenile smoking and prevent dealing in black-market or illegal tobacco sales.
The Committee notes the following extract from the Second Reading Speech –
More than 4,500 Victorians die each year of smoking related illness and smoking costs Victoria in excess of $3.3 billion each year.
About 15 per cent of all deaths in Australia can be attributed to tobacco related causes such as lung cancer, heart disease and emphysema. These deaths are avoidable.
Reducing smoking rates is the single most effective way to enhance the health status of Victorians, and to impact on rising health care costs.
In 1996 in Victoria 77,000 children aged 12-17 smoked a total of two million cigarettes in one week.
The younger a person is when they start to smoke the more likely it is they will become a heavier, more addicted smoker and suffer from a smoking related disease.
The trend towards smoke-free dining is well underway. In the USA smoke-free restaurants are common in many states and cities. Smoke-free dining has already been introduced in the ACT, Western Australia and most recently in South Australia.
There are precedents for smoke-free shopping. Legislation to prevent smoking in shopping centres has been in place in the A.C.T for several years. Last year it was introduced in Western Australia.
The new arrangements will result in 50 of Victoria’s large and medium sized shopping complexes being covered by smoke free laws.
Victorian children spend about $25 million per year on cigarettes and 80 per cent of smokers start before turning 18 years of age. Smoking is essentially a childhood habit that continues into adulthood.
17.3
Clause 2 provides that sections 1 and 2 come into operation on the
day after the day of Royal Assent. The remaining provisions come into operation on
proclamation but not later than by
1 July 2001.
Definitions
Clause 3 adds several important definitions to the Act, including definitions for ‘wholesale outlet’ and ‘retail outlet’.
A "controlled shopping centre" means any enclosed area that is, or is part of, a retail shopping centre so prescribed by Order in Council but excludes enclosed restaurants or cafés or parts having general licences or club licences within the meaning of the Liquor Control Reform Act 1998.
Clause 5 inserts new sections 3A to 3D.
Section 3A deems the presence on any premises of a vending machine constitutes the carrying on of a tobacco retailing business on those premises.
Section 3B states that agents and employees of tobacco retailers are not themselves tobacco retailers for the purpose of the Act.
Section 3C enables retail shopping centres to be declared to be controlled shopping centres for the purpose of the Act.
Section 3D defines "dining area" as public areas where the predominant activity is the consumption of food or non-alcoholic drinks.
Clause 6 inserts a new heading to Part 2 of the Act and contains new sections 5A to 5D providing new controls relating to tobacco products.
Clause 7 creates new offences –
Offence to smoke in café, restaurant or dining area.
New section 5A creates an offence for people who smoke in enclosed restaurants, cafes or dining areas. Inspectors are empowered to direct offenders to cease smoking. Penalties are provided for smokers who fail to comply with directions from inspectors.
Occupier may be guilty of offence
New section 5B(1) makes occupiers of enclosed restaurants, cafés and dining areas guilty of an offence if smoking occurs on their premises in contravention of section 5A.
Occupier’s defence
New section 5B(2) lists defences available to occupiers under 5B upon proof that they did not provide ashtrays, matches, lighters or any other things designed to facilitate smoking and they were not aware the contravention was occurring; or they had requested the person contravening to stop smoking; and informed the person an offence was being committed.
Offence to smoke in controlled shopping centres
New section 5C creates an offence of smoking in shopping centres, a defence is available to a smoker upon proof that at the time of the contravention a prescribed sign was not displayed in the centre.
Occupier may be guilty of offence
New section 5D(1) provides that if smoking occurs in any part of a controlled shopping centre, in contravention of section 5C, the occupier of the part is guilty of an offence.
Occupier’s defence
New section 5D(2) provides that a defence is available if the defendant (occupier) proves he or she did not facilitate smoking where the contravention occurred and was not aware or could not have been expected to have been aware that the contravention was occurring, or the defendant requested the person to cease smoking and informed the smoker that he or she was committing an offence.
Clause 8 introduces new controls for point of sale advertising. A new section 6(2A) is inserted creating an offence for tobacco retailers and wholesalers who allow tobacco advertisements that do not conform with the restrictive provisions of section 6A set out in clause 9.
Clause 9 details how tobacco products may be advertised by displays of packages and in the case of vending machines, by displays of representations. Regulations may be made limiting display areas.
Clause 10 permits exemptions from clause 8 offences where the tobacco advertisement forms part of a sports or arts sponsorship agreement providing it complies with regulations made under the Act.
Clause 11 inserts a new section 11A to create an offence of possession by retailers or wholesalers of tobacco products which are smuggled goods or prohibited imports within the meaning of the Customs Act 1901 (Clth) or in respect of which excise duty is unpaid under the Excise Act 1901 (Clth).
Selling tobacco to a minor
Clause 12 amends section 12 to increase the penalties for selling tobacco products to minors or allowing minors to obtain cigarettes from vending machines from 10 penalty units for a first offence and 20 penalty units for a subsequent offence to the new penalty of 50 penalty units.
Employer may be vicariously liable for act of employee in selling tobacco to a minor.
New sections 12(3A), (3B) and (3C) are inserted providing that where an offence of supplying tobacco to a minor is committed by an employee, it is also deemed to have been committed by the manager, unless the manager was unaware of the offence and could not have prevented its commission. Proceedings may be commenced against the manager whether or not proceedings are brought against the employee and whether or not the employee has been convicted.
| The Committee notes that this deeming provision reflects the doctrine of vicarious liability of the master for the acts of his servants. The Committee accepts the notion of strict liability places a heavy, but reasonable, burden on managers of bodies dealing in tobacco products to ensure that the Act is complied with. |
New section 12(4)(c) provides a defence to prosecution provision allowing tobacco suppliers to have regard to certain prescribed documentary evidence of the age of the buyer.
A further defence is provided by new section 12(4)(d) providing that in the prosecution of a manager it is a defence for the manager to prove that he had no knowledge of the offence and could not, by the exercise of due diligence, have prevented the commission of the offence.
| The Committee notes that this amendment introduces the doctrine of strict liability for managers of premises dealing in tobacco products. The Committee notes the defences relating to "due diligence" and actual knowledge available to a manager for the acts of employees and considers that they are appropriate checks and balances to give effect to the purposes of the Act. |
No smoking signs
Clause 13 introduces sections 15A to 15C referring to "no smoking" signage requirements and penalties applicable to enclosed restaurants and cafés, dining areas, controlled shopping centres and tobacco retail outlets.
Trading Bans
Clause 14 introduces a new system to ban tobacco retailers who commit certain offences from selling tobacco products by inserting a new section 15D in Part 2. A Magistrates Court has a discretion to impose a one month ban on a retailer upon a first conviction. In the absence of exceptional circumstances, a mandatory three months ban is the penalty for a second offence and a five year ban upon a third conviction. In addition, a court has discretion to prohibit the retailer from carrying on a tobacco retailing business at any new premises within a five kilometre radius of the retail outlet.
Appointment, Powers and Duties of Inspectors
Clause 15 inserts a new Part 3A relating to the appointment, powers and duties of inspectors. Inspectors are required to use identity cards. They are empowered to request suspected offenders to carry out certain requests and to state their name and address. Penalties are provided for giving false information or refusing to comply with an inspector’s request.
| The Committee is aware that rights and freedoms of citizens may be affected by providing inspectors with certain policing powers to investigate and prosecute offences under the Act. In view of the objects of the Act the Committee is satisfied that these powers are appropriate to give effect to the purposes of the Act. |
Search and Entry Powers with Consent
New section 36D empowers inspectors who believe, on reasonable grounds, that a contravention under the Act or regulations has occurred, to enter, conduct searches and seizures at premises with the occupier’s consent. Common limitations are placed on these powers, for example, inspectors must believe on reasonable grounds that things seized, documents inspected and copied are connected with the alleged contravention. Inspectors must give proper warning to an occupier of the right to refuse consent to the entry, search or seizure and caution that things seized or taken during the search may be used in evidence against the occupier.
New section 36D(3) provides that before entry and search, inspectors are required to obtain from an occupier written consent on a prescribed form acknowledging certain relevant information. The occupier must be given a copy of this signed document. Failure to produce the required acknowledgment before a court or tribunal results in a deemed presumption, until the contrary is proved, that the occupier did not consent to the entry and search or to the seizure or the taking of the thing.
| The Committee notes with approval that checks and balances have been introduced to ensure that powers of search and seizure by inspectors are carried out with the clear consent of the occupier. |
New section 36E empowers inspectors to enter and inspect premises open to the public, take photographs and direct the removal of any illegal tobacco advertisements.
Search Warrants
New section 36F(1) sets out requirements for certain classes of inspectors to obtain search warrants from a magistrate where there is a belief, on reasonable grounds, of the existence of evidence of any contravention of the Act on the premises. Sub-clause (4) provides that except as provided by the Act, the procedures and practices relating to search warrants under the Magistrates’ Court Act 1989 apply.
Under new sections 36G and 36H duties of inspectors executing search warrants are listed.
Under new section 36I provision is made for seizure of things not mentioned in the warrant where an inspector believes, on reasonable grounds, that the thing is of a kind which could have been included in the search warrant issued and will afford relevant evidence and the inspector believes on reasonable grounds, that the seizure is necessary in order to prevent its concealment, loss or destruction or its use in the contravention of the Act or regulations.
| The Committee notes that this is consistent with the provision in section 125 of the Fair Trading Act relating to seizure of things not mentioned in warrants and is necessary for the implementation of the provisions of the Act. |
New section 36J requires inspectors to provide certified copies of documents within 21 days of seizure. New sections 36K and 36L contain rules relating to the retention and return of seized documents or things.
New section 36M provides that occupiers, their agents and employees must assist inspectors during entry by providing information, producing documents and giving reasonable assistance. New section 36N makes it an offence to refuse or fail to comply with a requirement of an inspector without a reasonable excuse.
Privilege against self-incrimination
New section 36O preserves, in a limited form, the privilege against self-incrimination providing –
(1) It is a reasonable excuse for a natural person to refuse or fail to give information or do any other thing that the person is required to do by or under this Part, if the giving of the information or the doing of that other thing would tend to incriminate the person.
(2) Despite sub-section (1), it is not a reasonable excuse for a natural person to refuse or fail to produce a document that the person is required to produce by or under this Part, if the production of the document would tend to incriminate the person.
(3) If, (a) before producing a document that the person is required to produce by or under this Part, the person claims that the document would tend to incriminate the person; and (b) the document would in fact tend to incriminate the person -
the document is not admissible in evidence against the person in a criminal proceeding other than a proceeding in respect of an offence against this Act or the regulations.
| The Committee notes the modified privilege against self-incrimination provided by new section 36O and accepts that this provision is an appropriate balancing of rights to give effect to the public policy purposes of the Bill. |
New section 36P creates the offence of giving false or misleading information or producing a document known to be false or misleading. Under section 36Q it is an offence to hinder, obstruct or impersonate an inspector. Section 36S deals with service of documents. Section 36T imposes penalties for breach of confidentiality by inspectors.
Clause 16 repeals sections 37(1) which prevented the commencement of proceedings relating to a tobacco advertisement offence unless the offender failed to remove the advertisement within 30 days. Courts convicting offenders of an offence created by clause 8 are empowered to direct the removal of the offending advertisement.
Clause 17 authorises the payment of infringement notice penalties to the municipal fund of the council.
Power to require manufacturers to supply names of persons supplied with tobacco.
Clause 18 empowers the Secretary to the Department of Human Services to require manufacturers and wholesalers of tobacco products to provide the names and addresses of tobacco retailers to whom they have supplied those products within the previous 12 months. Failure to comply or providing false or misleading information attracts a penalty under sub-section (2). The Secretary is prohibited from improper disclosure of supplier information under this section.
Clause 19 inserts a new section 42B. [Refer to 17.4 below].
Clause 20 a new Part 5 is inserted to deal with transitional issues arising from the repeal of section 37.
Clause 21 a new Schedule is substituted in section 38 to provide for the issue of infringement notices.
Clause 22 revises the Act to remove references to repealed Acts and remedy some typographical errors.
The Committee accepts that the provisions in the Bill may impinge on certain rights and freedoms for some members of the community and at the same time enhances the rights and freedoms of others. The question of whether the diminution of any of these rights and freedoms is an undue trespass is a matter for the Parliament to determine. |
17.4
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 19 inserts a new section 42B and declares that it is the intention of section 42 to alter or vary section 85 of the Constitution Act 1975.
The Committee notes the separate section 85 statement made on 11 May 2000 –
Section 42 of the Tobacco Act provides that an Action does not lie against a person for the failure or refusal to do anything that would constitute an offence under the Act. This was included in the Act when it was first passed in 1987.
The Bill creates a number of new offences. It is necessary that section 42 apply to those offences in the same way that it applies to existing offences.
It would frustrate the purpose of the Act if people felt compelled to undertake Activities that are prohibited by the Bill, such as erecting a tobacco advertisement at the point of sale at a retail outlet out of fear of some legal Action which may be brought against them if they failed or refused to do so.
| The Committee is of the view that the proposed section 85 provision is appropriate and desirable in all the circumstances. |
The Committee accepts that the provisions in the Bill may impinge on certain rights and freedoms for some members of the community and at the same time enhances the rights and freedoms of others. The question of whether the diminution of any of these rights and freedoms is an undue trespass is a matter for the Parliament to determine. |
The Committee makes no further comment.
18.1
The Bill was introduced into the Legislative Assembly on 3 May 2000 by the Honourable Peter Batchelor MLA with the Honourable John Thwaites MLA. The Second Reading Speech was delivered on 4 May 2000.
18.2
The purposes of the Bill are to amend the Transport Act 1983 to remove references to the transport functions of the Public Transport Corporation and to make certain consequential amendments to certain other Acts.
The Committee notes the Second Reading Speech –
The primary purpose of this Bill is to repeal or amend various sections of the Transport Act to remove references to the transport functions of the Public Transport Corporation. The Bill also makes a number of consequential amendments to other Acts.
As a result of the franchising of public transport to private operators, the Public Transport Corporation no longer provides any public transport services or owns land on which tram and train services are provided to the public.
The corporation therefore no longer needs the wide range of powers and functions it exercised when it was the main provider of public transport passenger services in Victoria, nor does it require the enforcement powers which it previously exercised to enforce ticket requirements and other transport offences.
Most amendments contained in the Bill remove references to the Public Transport Corporation. However, some amendments insert a reference to the new tram and train operators where that is appropriate.
In some instances where the relevant functions have been transferred to another body, such as Victorian Rail Track, which now owns most public transport land, the name of that body has been inserted in the Act.
The Public Transport Corporation is the successor at law to the statutory corporations whose assets were franchised to the private operators. The Public
Transport Corporation will continue to be responsible for winding up the residual assets and liabilities of those bodies. In addition, the Public Transport Corporation continues to own some land, which was not required at franchising, and also continues as a party to a number of contracts which have not yet been transferred to other bodies -- the most important of these is the contract with Onelink for the automated ticketing system. For these reasons the corporation continues to require certain powers and to exercise relevant functions. The powers and functions it still requires have been inserted by this amendment or have been retained in the Transport Act.
18.3
Clause 2 provides that the provisions in the Bill come into operation on the day after Royal Assent.
Clause 13 repeals Part V of the Act. The Committee notes the Explanatory Memorandum in respect to this clause –
This Part was enacted to protect the employment entitlements of staff who transferred from Government departments to one of the statutory authorities created in 1983, when the Act first came into force. The provisions are no longer needed as the situation for which they were enacted no longer exists and there are different methods now used to protect staff entitlements, where a transfer of business takes place. No person will be adversely affected by the removal of this Part of the Act.
The Committee makes no further comment.
Victorian Law Reform Commission Bill
19.1
The Bill was introduced into the Legislative Assembly on 3 May 2000 by the Honourable John Brumby with the Honourable Rod Hulls. The second Reading Speech was delivered on 4 May 2000.
19.2
The purposes of the Bill are to –
- establish the Victorian Law Reform Commission (the Commission);
- define its functions and powers;
- repeal the Law Reform Commission (Repeal) Act 1992 and amend the Legal Practice Act 1996.
19.3
Clause 2 provides that the provisions in the Bill commence on proclamation but not later than by 1 July 2001.
Clause 3 sets out definitions relevant to the Act.
Part 2
Clause 4 provides for the establishment of the Commission.
Functions
Clause 5 provides that the functions of the Commission include a duty to report to the Attorney General on law reform in Victoria that is referred to the Commission by the Attorney-General, suggest references for law reform to the Attorney-General, initiate reports on minor legal issues of community concern, undertake educational programs and monitor and coordinate State law reform activity in Victoria.
Powers
Clause 6 defines the broad powers of the Commission and refers to limits on its power to deal with property without the written consent of the Attorney General.
Part 3 – Constitution and Procedure
Clause 7 the constitution of the Commission is composed of a full-time chairperson and full and part-time members. Acting chairpersons may be appointed.
Clause 8 prescribes the terms and conditions of office. Members are appointed for 4 years by written contract (not subject to the Public Sector Management and Employment Act 1998) and are eligible for re-appointment.
Clause 9 provides for remuneration.
Clause 10 sets out rules relating to vacation of office, resignation and grounds for removal from office.
Clause 11 states that certain technical defects will not result in invalidation of the Commission’s Acts or decisions.
Clause 12 prescribes the procedures for convening and conducting meetings. Clause 13 sets out procedures for the Chairperson in the allocation of references. Clause 14 sets out methods of convening and conducting Division meetings.
Clause 15 sets out rules relating to the employment of a chief executive officer and other staff.
Part 4 – Finance and Reports
Clause 17 provides that funding will be sourced from the Law Reform and Research Account set up under section 383(2) of the Legal Practice Act 1996; and the Consolidated Fund.
Clause 18 prescribes limits to expenditure.
Clause 19 requires the production of annual reports on each reference.
Clause 20 imposes a duty on the Commission to supply specific information to Parliament and Parliamentary Committees upon request.
Clause 21 provides that the Commission is required to make interim reports from time to time or, where requested by the Attorney General, the Commission must prepare reports.
Part 5
Clause 22 provides that the Governor in Council may make regulations to give effect to the Act.
| The Committee notes the regulation making powers provided in this Bill and accepts that they are appropriate to give effect to the purposes of the Act. |
Clause 23 amends the Legal Practice Act 1996 to provide for funding to be sourced for the Law Reform and Research Account.
Clause 24 repeals the Law Reform Commission (Repeal) Act 1992 (which abolished the previous Law Reform Commission).
The Committee makes no further comment.
Also See Alert Digest Ministerial Correspondence
| Footnote | |
| 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. | |
| Last update 24/5/2000 ©Parliament of Victoria |
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