Alert Digest No. 7 of 2000
15 August 2000

Constitution (Amendment) Bill

1.1

The Bill was introduced into the Legislative Assembly on 31 May 2000 by the Honourable Steve Bracks MLA with the Honourable John Thwaites MLA. The Second Reading Speech was delivered on 1 June 2000.

The purpose of the Bill is to reform the Constitution Act 1975 (the Constitution) by providing for –

• fixed and simultaneous 4 year terms for both the Legislative Assembly and the Legislative Council; and
• the passage of the Annual Appropriation Bill by the Legislative Assembly only.

Clause 2 provides for the respective commencement provisions in the Act –

• Sections 1 and 2 come into operation on the day on which the Act receives the Royal Assent.
• Sections 3(2), 4 to 7, Part 3 and sections 19 and 20 come into operation on the day of the dissolution or other lawful determination of the Legislative Assembly next occurring after the day on which this Act receives the Royal Assent.
• Section 3(1) and (3) to (6) comes into operation on the coming into existence of the Legislative Assembly first elected after this Act receives the Royal Assent.
• Section 18 comes into operation on the coming into existence of the Legislative Council first elected after this Act receives the Royal Assent.

Clause 3 amends the Constitution and provides for fixed 4 year terms for Parliament, other than where the Assembly has passed a motion of no confidence in relation to the Premier and the other Ministers of State.

The term of a Parliament will commence from the day of the general election.

The provisions in the Bill will apply as at the commencement of the 55^th Parliament.

New section 8(3) provides –

Clause 4 provides that the duration of the Legislative Council will be concurrent to that of the Assembly. The clause also terminates the current Legislative Council when the current Legislative Assembly is dissolved or expires.

Clause 5 substitutes a new section 62 in the Constitution and deals with appropriation bills imposing any duty, rate, tax, rent, return or impost. The amendment proposes that such a bill must originate in the Assembly and may be rejected but not altered by the Council.

Clause 6 substitutes a new section 65 in the Constitution dealing with Annual Appropriation Bills dealing with the annual appropriation of the Consolidated Fund for the ordinary annual services of the Government for a particular year. Such a Bill does not include a Bill to appropriate money for or relating to the Parliament.

The Annual Appropriation Bill must deal only with appropriation.

Appropriation Bills may be presented for Royal Assent if they are rejected or not passed by the Legislative Council within 1 month of passage by the Assembly. The certificate of the Speaker under this section is conclusive evidence for all purposes and cannot be questioned in any court.

Clause 8 amends sections 3 and 37 of the Constitution Act Amendment Act 1958 to remove references to ‘simultaneous elections’ and ‘periodical election’. The term general election will apply to concurrent elections of the Assembly and the Council.

Clause 16 inserts a new section 208AB providing for a procedure when 2 members are to be elected.

Clauses 18 to 20 make minor consequential amendments to other related Acts.

The Committee makes no further comment.

Constitution (Proportional Representation) Bill

2.1

The Bill was introduced into the Legislative Assembly on 31 May 2000 by the Honourable Steve Bracks MLA with the Honourable John Thwaites MLA. The Second Reading Speech was delivered on 1 June 2000.

The purpose of the Bill is to reform the Constitution Act 1975 (the Constitution) by providing for –

• the election of members of the Legislative Council by using a proportional representation system similar to the Australian Senate;
• a reduction in the number of members of the Legislative Council from 44 to 40;
• the creation of 8 electoral provinces for election to the Legislative Council. 3 provinces with a rural focus and 5 with an urban focus. Each electoral province is to return 5 members;
• the filling of casual vacancies in the Legislative Council consistent with the intention of the electorate at the general election.

Clause 2 provides that sections 1 and 22 come into operation on the day on which the Act receives the Royal Assent. The remaining provisions come into operation on the day of the dissolution or other lawful determination of the Legislative Assembly next occurring after the day on which this Act receives the Royal Assent.

Clause 3 provides that the size of the Legislative Council is reduced from 44 to 40. The legislation proposes that the Council elected for the 55^th Parliament would be chosen using proportional representation similar to the system adopted by the Commonwealth Senate, with the State divided into 8 provinces each returning 5 members. Each province is to consist of 11 complete and contiguous districts of the Legislative Assembly. To achieve election a candidate must secure approximately 16.67% of the valid votes cast in that province at the election.

Clause 4 repeals section 28 and replaces it with a provision for the filing of casual vacancies in the Legislative Council. A vacancy will be filed by the registered political party from whose ranks the casual vacancy has arisen or by a recount of the votes cast at the election in the event that the vacancy has arisen from a member not elected as a member of a registered party. If the vacancy cannot be filled under these provisions a Council by-election must be held to fill the vacancy using preferential voting. Such a by-election would in effect require electors resident in eleven Legislative Assembly districts to vote at the by-election. On current electoral enrolment statistics about 400,000 electors would be required to vote in such a by-election.

Clause 5 the amendments reduce the period from the issue of the writ to the close of nominations from 10 to 8 days and increases the minimum period from the close of nominations to the polling day from 15 to 17 days.

Clauses 6 to 8 deal with nomination procedures, the grouping of candidates for Legislative Council elections.

Clause 12 inserts sections 165AA, 165AB and 165AC permitting electors a choice of voting in the Council identical to the system used in the Senate. Electors may vote for a group of candidates above the line, identified by the use of the name of a registered political party, or alternatively vote for individual candidates below the line on the ballot paper.

Clause 13 inserts new sections 165B(5) and 165C(2) enabling ballot papers to be printed with the names of candidates grouped along with the names of the political party which endorsed the group.

Clause 14 inserts a new section 165D providing the group voting tickets must be displayed in all polling places.

Clause 19 deal with the introduction of proportional representation as the voting method to be used for the Legislative Council. The method of voting is based on the Commonwealth Senate system known as the transferable quota preferential system. New section 208E(3) provides that a voter who places a tick or a cross in a square on a ballot paper for a registered political party (above the line) is deemed to have placed the figure 1 in the square thus saving the validity of the vote that otherwise may be invalid as a consequence of other provisions of the Act.

Clause 21 creates a Tenth Schedule to the Act providing for the form of ballot paper to be used in Council elections (the above the line/below the line option as currently used for Senate elections).

Clause 22 amends the Electoral Boundaries Commission Act 1982 by inserting new sections 9(3) and (4) providing that eight electoral provinces are to be created for elections of the Legislative Council. Three (3) provinces are to have rural focus and five (5) will have an urban focus. Each province will consist of eleven (11) Assembly Districts. The "metropolitan area" is defined as the docklands area and the municipal councils or districts specified in the Table.

The Committee makes no further comment.

Courts and Tribunals Legislation (Further Amendment) Bill

3.1

The Bill was introduced into the Legislative Assembly on 24 May 2000 by the Honourable Rob Hulls MP with the Honourable John Brumby MP. The Second Reading Speech was delivered on 26 May 2000.

The purpose of the Bill is to make miscellaneous amendments to the Legal Practice Act 1996, Magistrates' Court Act 1989, Supreme Court Act 1986 and the Victorian Civil and Administrative Tribunal Act 1998.

Clause 2 the provisions in the Bill, except sections 5 and 6, come into operation on the day after Royal Assent. Sections 5 and 6 come into operation on proclamation but not later than by 1 January 2001.

Clause 3 amends section 6(1) of the Legal Practice Act 1996 to permit barristers and solicitors to take an oath or affirmation of office without swearing allegiance to the Queen.

Clause 5 inserts a new section 19A in the Magistrates' Court Act 1989 requiring the recording of proceedings in the Court are recorded in accordance with the Rules.

Clause 7 amends section 140(1) of the Magistrates' Court Act 1989 to provide that the Governor in Council may make regulations prescribing the fees and charges payable for the supply by the Court of any recording or any part of a recording of a proceeding.

Clause 15 makes amendments to sections 22 and 23 of the Act dealing with the suspension of non-judicial members providing that the President with the approval of the Minister may suspend a non-judicial member if the President believes there may be grounds for removal from office. Where the Minister decides not to recommend removal of a suspended member, the Minister must inform the President as soon as practicable after receiving the report of the investigation and the President must lift the suspension.

Clause 17 inserts a new section 25A in the Act and provides that if the rules provide for proceedings to be entered in or transferred to lists of the Tribunal and for members to be assigned to those lists a member must not represent a party in any proceeding that has been entered in or transferred to a list to which the member has been assigned; and for a period of 2 years after a member ceases to be a member, he or she must not represent a party in any proceeding that has been entered in or transferred to a list to which the former member was assigned.

The Committee notes the comments in the Second Reading Speech –

This Bill inserts a new section in the Act providing that a sessional member of the VCAT or former sessional member cannot appear before any of the lists in which the member sits or has sat. A member is disqualified from appearing before the relevant list or lists during the term of their appointment and afterwards for a period of two years.

This restriction is based on the Victorian Bar Council rules. The purpose of inserting the provision is mainly educative. If a sessional member does appear during the period of disqualification it does not affect the validity of the proceedings. Further, no penalty is imposed under the Victorian Civil and Administrative Tribunal Act 1998 if a sessional member appears before a list during the period in which he or she is disqualified. Disciplinary proceedings can be brought under the Legal Practice Act 1996 if appropriate.

Clause 18 substitutes a new section 68(4) of the Act, providing that if the application fee is not paid within 30 days after the day on which the application is lodged, the Tribunal may make an order striking out the proceeding, unless the fee has been waived under section 132 in that period; or the fee has been reduced under section 132 and the reduced fee has been paid in that period; or an applicant has requested the waiver or reduction of the fee and the request has not been determined by the end of that period.

Clause 19 amends section 75(3) of the Act to add senior members who are legal practitioners to the class of members who may summarily dismiss or strike out proceedings that are an abuse of process.

Clause 24 inserts new provisions in section 111 of the Act dealing with additional costs orders that the principal registrar may make where a party does not attend an assessment of costs.

Clause 25 amends section 124 to permit declarations to be made by presidential members.

Clause 26 amends section 137(10) dealing with contempts and will permit any judicial member to make an order for contempt. Presently such an order may only be made by the President.

The Committee makes no further comment.

Drugs, Poisons and Controlled Substances (Injecting Facilities Trial) Bill

4.1

The Bill was introduced into the Legislative Assembly on 31 May 2000 by the Honourable John Thwaites MLA with the Honourable Steve Bracks MLA. The Second Reading Speech was delivered on 1 June 2000.

The Bill arises out of recommendations made by the Drug Policy Expert Committee in its report Drugs: Responding to the Issues, Engaging the Community released in April 2000. The main purpose of the Bill is to provide for the trial of injecting facilities for drugs of dependence in up to 5 municipal districts to enable the evaluation of those facilities.

The Bill amends the Drugs, Poisons and Controlled Substances Act 1981 (the Act).

Clause 2 the commencement provisions provide –

• Sections 1, 2, 3 and 5 come into operation on the day after Royal Assent.
• Sections 4(1) and 6 come into operation on a day to be proclaimed but not later than by 1 September 2001.
• Section 4(2) comes into operation on the day after the day on which section 80M of the Drugs, Poisons and Controlled Substances Act 1981 expires.

Clause 4 amends section 80(5) of the Act to provide that the provision of syringes by the operator or members of staff at an approved injecting facility is not an offence. The provision is repealed at the conclusion of the trial period.

Clause 5 inserts a new Part V into the Act comprising new sections 80A to 80D dealing with the trial of injecting facilities.

80A provides that the Minister may undertake a trial of injecting facilities for drugs of dependence in up to 5 municipal districts to enable the evaluation of those facilities but only in the following municipal districts – (a) the City of Melbourne; (b) the City of Port Phillip; (c) the City of Yarra; (d) the City of Greater Dandenong; (e) the City of Maribyrnong.

80B. The Minister may enter into agreements with any person for the use and development, by that person on behalf of the Minister, of land as premises for an injecting facility. Such agreements may only be for the trial period.

80D agreements are to be laid before each House of the Parliament and are subject to the disallowance of either House.

Clause 6 inserts new sections 80E to 80M into the Act.

80E provides that the Minister may recommend the making of an Order by the Governor in Council approving either or both of the following – (a) premises to be an approved injecting facility, and (b) a person to be an operator of an approved injecting facility.

The Minister must not make a recommendation under this section unless he or she is satisfied that the premises are located within a municipal district referred to in clause 5 and the relevant Council has endorsed the operation of facilities for the injection of drugs of dependence in its municipal district; and a draft of the relevant agreement under section 80B has not been disallowed under section 80D or, if it has been disallowed in part under that section, the agreement does not contain any part which has been disallowed.

80F provides that the Governor in Council may make an Order on the recommendation of the Minister under section 80E, published in the Government Gazette, approving premises to be an approved injecting facility; a person to be the operator of an approved injecting facility.

80G provides that an Order made under 80F may be amended or revoked.

80H provides that use or possession of drugs by a person over 18 years may not constitute an offence in certain circumstances where the possession relates to a quantity of a drug of dependence that is not more than a small quantity; and the possession occurs in an approved injecting facility.

A person over the age of 18 years who uses a drug of dependence is not guilty of an offence if the use relates to a quantity of a drug of dependence that is not more than a small quantity; and the use occurs in an approved injecting facility.

A person over the age of 18 years who uses a drug of dependence for the purpose of self-administration is not guilty of a contravention by reason only of that use for the purpose of self-administration if that use relates to a quantity of a drug of dependence that is not more than a small quantity; and that use occurs in an approved injecting facility.

80I provides that an operator or staff member is not guilty of the offences of aiding and abetting, counselling, procuring, soliciting or inciting the possession or use of a drug of dependence by reason only of operating that facility or being a member of staff in that facility; or the possession or use of a drug of dependence in that facility by a person.

The possession or use of a drug of dependence in that facility by a person who would have been a person to whom section 80H(1) or (2) applies had he or she been 18 years of age or older if the operator or member of staff believed on reasonable grounds that the person was 18 years of age or older.

80J provides that a person is not guilty of an offence of conspiring with another person or other persons to commit an offence in relation to the possession or use of a drug of dependence by reason only of being an operator of an approved injecting facility; or being a member of staff in an approved injecting facility; or the possession or use of a drug of dependence in an approved injecting facility.

80L provides that despite laws to the contrary, it is not unlawful for a person to engage, participate or otherwise be involved in the operation of an approved injecting facility in accordance with the terms of the agreement under section 80B applying to that facility.

80M provides for the expiry of the new provisions inserted by clauses 5 and 6. The effect of the expiry provisions is that approval of premises will need to occur in the first six months following commencement and thereafter run for 18 months from the date of the last approval.

The Committee makes no further comment.

Information Privacy Bill

5.1

The Bill was introduced into the Legislative Assembly on 24 May 2000 by the Honourable Rob Hulls MP on behalf of the Honourable John Brumby MP with the Honourable Peter Batchelor MP. The Second Reading Speech was delivered on 26 May 2000.

The main purposes of the are to –

• establish a regime for the responsible collection and handling of personal information in the Victorian public sector;
• provide individuals with rights of access to information about them held by organisations, including information held by contracted service providers;
• provide individuals with the right to require an organisation to correct information about them held by the organisation, including information held by contracted service providers;
• provide remedies for interferences with the information privacy of an individual;
• provide for the appointment of a Privacy Commissioner.

The provisions of the Act cover personal information held by the Victorian public sector as defined by the Bill. It is envisaged that information privacy in the private sector will be covered by Commonwealth legislation. In this respect the Committee notes the comments in the Second Reading Speech –

The Information Privacy Bill has a valuable place in a national context. It regulates information collection, handling and disclosure by the Victorian public sector. On 12 April 2000, the Commonwealth introduced amendments to the Privacy Act 1988 (Clth) to establish a scheme for the regulation of the handling of personal information in the private sector.

This regulation is important to ensure that information collected and held by the private sector is stored, used and disclosed in a fair and appropriate way and to ensure that people have the right to access and correct information about themselves.

The Victorian government welcomes a national scheme to cover the private sector, recognising that it is the most sensible approach to privacy regulation in a global environment. However, the government has a keen interest in development of the most effective national scheme to balance the interests of business and the community and is taking an active part in the national privacy debate to ensure that the final form of the Commonwealth legislation is appropriate.

…

Victoria's Information Privacy Bill safeguards personal information handled by all public sector entities, including state instrumentalities, councils, ministers, members of Parliament -- to the extent that they handle personal information received from public sector bodies -- statutory office-holders and private sector contracted service providers. It is expected that coverage of the Bill will complement the final form of the Commonwealth legislation.

The Bill requires personal information to be managed in accordance with a set of information privacy principles adapted from the National Principles for the Fair Handling of Personal Information, developed by the federal Privacy Commissioner and on which the Commonwealth has based its private sector privacy legislation.

The 10 information privacy principles, attached in a schedule to the Bill, prescribe how personal information is to be collected and handled.

Clause 2 provides that the Act comes into operation on proclamation a day or days to be proclaimed. Other than section 80, if a provision is not in effect by 1 September 2001, it comes into operation on that day.

Clause 3 provides for the definition of important terms in the Act including –

"Commonwealth-regulated organisation" means an agency within the meaning of the Privacy Act 1988 of the Commonwealth and to which that Act applies;

"Information Privacy Principle" means any of the Information Privacy Principles set out in Schedule 1;

"IPP" means Information Privacy Principle;

"personal information" means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion, but does not include information of a kind to which Schedule 2 applies; (Schedule 2 deals with ‘Health Information’ as applied and defined by the schedule which will covered by separate Victorian legislation); and

"Tribunal" means Victorian Civil and Administrative Tribunal.

Clause 4 contains a number of interpretive provisions. Subclause 1 extends the operation of the Act to information, such as in a document held outside of Victoria if it is under the control or in the possession of the organisation in Victoria.

Clause 5 provides that amongst the objects of the Act are the balancing of the public interest in the free flow of information with the public interest in protecting the privacy of personal information and to promote awareness of responsible and transparent handling of personal information in the public sector.

Clause 6 provides that the provisions of the Act are subject to the provisions of other legislation. Where there is an inconsistency the other provision prevails. Information protection under the Bill is also expressly subject to the provisions of the Freedom of Information Act 1982.

Clause 7 defines the rights created by the Act and limits the jurisdiction of the Supreme Court. The clause makes it plain that the Act must not be taken to create any general privacy right or any other rights additional to those specifically contained in the Act and likewise no criminal liability is created or arises other than that specifically described in the Act. Clause 72 states that clause 7 is intended to alter or vary section 85 of the Constitution Act 1975. [Refer 5.4 for section 85 Constitution Act 1975 statement].

Clause 8 provides that the Act binds the Crown but the Crown may not be prosecuted for an offence.

Clause 9 deals with the application of the Bill to public sector organisations and is cast widely to ensure that all bodies that could be characterised as "public sector" are included. The Act will thus apply to a Minister, a Parliamentary Secretary an MP; bodies established for a public purpose by or under an Act; a person appointed under or by an Act; Councils; the Police; courts and tribunals; a contracted service provider under a State contract and other bodies declared by Governor in Council Order published in the Government Gazette such as a public hospital or other organisations that may have hybrid public and private activities and accountabilities. The Governor in Council may also declare on the recommendation of a Minister that a body or person is not subject to the Act but only if that body or person is governed by an alternative legislative scheme dealing with data protection.

Clause 10 exempts courts and tribunals in respect to the exercise of their judicial or quasi judicial functions. The Act will still apply, for example, to the keeping of staff records.

Clause 11 exempts personal information in a generally available publication or kept in a library, museum, gallery or a public record kept in accordance with the Public Records Act 1973 and in an archive within the meaning of the Copyright Act 1968 (Clth). This clause is however subject to clause 21(5) which will ensure that public sector agencies develop codes of practice to ensure that publicly available personal information kept on public registers are only used for legitimate purposes for which they are held and maintained. Use outside the purposes may be treated as an interference with personal privacy. Organisations having responsibilities for collecting and maintaining such public registries will develop codes of practice in conjunction with the Privacy Commissioner to minimise abuse of public register information.

Clause 12 ensures that the provisions of the Freedom of Information Act 1982 continue to apply in their entirety notwithstanding any of the provisions of the Bill. The Bill has no effect on the scope of the Freedom of Information Act 1982.

Clause 13 exempts law enforcement agencies from compliance with certain IPP’s where an agency believes on reasonable grounds that non-compliance is necessary for a legitimate law enforcement function, activity or in connection with any legal proceedings. The scope of what is included in the term "law enforcement agency" is covered in the Act and whilst it includes the Police force it also includes agencies protecting public revenue and other government instrumentalities which have law enforcement responsibilities.

Clause 14 provides that the Information Privacy Principles are those set out in Schedule 1 of the Bill (Appendix 3). The principles are adapted from the federal Privacy Commissioner’s National Principles for the Handling of Personal Information (the National Principles). These principles were developed over a two year period in consultation with business and consumer groups. They are designed to be a compromise between protection of personal information and use of information for business and other purposes.

Clause 15 provides that IPP’s 1 and 10 only apply after the commencement of this section. These IPP’s deal with the collection of personal information or sensitive information (information revealing racial or ethnic origin, political opinions, religious or philosophical beliefs etc.). The remaining IPP’s apply to all personal information regardless of when it was collected.

Clause 16 contains the obligation for organisations to comply with the IPP’s. The commencement of the obligation is delayed by twelve months from the commencement of clause 15. There is also a further 12 month time delay concession available to organisations that have entered into contractual obligations prior to 26 May 2000 (the date of the Second Reading Speech). Further extensions of time may be allowed on application to the Privacy Commissioner.

Clause 17 deals with the application of the Act to outsourcing arrangements. The Act is intended to apply to the same extent to providers of outsourcing services as the organisation seeking to outsource one or more functions whether under the default legislation (the IPP’s) or the approved code of practice.

Clause 18 allows organisations to comply with the requirements of the Act by developing approved codes of practice. If they do not, the Act will apply as the default scheme. Codes of practice may chose to cover every aspect of data protection including dispute resolution or may allow for a hybrid of provisions and include provisions found in the legislation. A code of practice may modify the application of an IPP but the standards prescribed must be at least as stringent as the standards prescribed by the IPP’s.

Clause 19 sets out the procedure to gain approval for a code of practice by submitting a proposed code to the Privacy Commissioner (the Commissioner). The Minister may recommend the approval of a code to the Governor in Council and if approved that approval is noted in the Government Gazette. The proposed code must substantially achieve the objects of the Act. The Commissioner must have regard to the extent to which members of the public have been consulted on the proposed code.

Clause 20 an approved code binds the organisation that sought approval of it. Any other organisations may also agree in writing to the Commissioner to be bound by the terms of that approved code, if that code is capable of applying to that organisation. The Commissioner must approve the notice of offer to be bound before it can apply to the organisation seeking its approval or to any other organisation seeking to adopt it as the relevant code for its purposes. An organisation may give notice to the Commissioner that it intends to cease to be bound by the code.

Clause 21 provides that a contravention of an approved code is deemed to have the same effect as a contravention of the legislative scheme and that any practice within the code that otherwise would breach the IPP will not be a contravention of the Act and a contravention of the code even if it would not otherwise contravene an IPP will be deemed to be a contravention of an IPP and may be dealt with as provided under the code and or the Act.

Clause 22 the Commissioner must cause to be kept a register of all approved codes. The register may be inspected.

Clause 23 provides for a mechanism for revocation of approved codes of practice by the Governor in Council. The revocation process may commence either at the initiative of the Commissioner or otherwise. The organisation seeking the code and the public are to be consulted before revocation takes place.

Clause 24 preserves the validity of any action taken whilst a code was in force and any proceedings commenced to continue notwithstanding the revocation of a code.

Clause 25 allows an individual in respect of whom personal information is held by an organisation to complain in writing to the Commissioner about a practice that may be an interference with the privacy of that individual.

Clause 26 provides that a complaint referred to the Commissioner may be treated as a complaint referred to him or her by the Ombudsman under section 15A of the Ombudsman Act 1973 as if it were a complaint made under clause 25.

Clause 27 deals with complaints made by minors and persons with an impairment.

Clause 29 the Commissioner may decline to hear complaints for certain reasons. If the Commissioner declines to handle the complaint the person may require the Commissioner to refer the matter to the Victorian Civil and Administrative Tribunal (the Tribunal). If no such request is made the Commissioner may dismiss the complaint and the complainant may then not take any further action under the Act in respect to that complaint.

Clause 30 the Commissioner may dismiss a complaint where the complainant fails to respond within 90 days to a request by the Commissioner in relation to the complaint. After notification of such a dismissal the complainant may take no further action in respect to the complaint.

Clause 31 the Minister may refer an important matter of public policy direct to the Tribunal regardless of any pending complaint or conciliation process.

Clause 33 the Commissioner may endeavour to conciliate the complaint.

Clause 34 for the purposes of a conciliation the Commissioner may send for documents relevant to the complaint and require persons to attend before the Commissioner to answer questions relevant to the complaint. The Commissioner is not entitled to send for documents that would otherwise attract immunity from disclosure pursuant to the Freedom of Information Act 1982.

Clause 35 a written record of a conciliation agreement may be registered with the Tribunal and be enforceable as though it was an order of the Tribunal. If the Tribunal considers it may be impracticable to enforce a conciliation order it may refuse to register it.

Clause 36 evidence obtained in the course of a conciliation is inadmissible before the Tribunal or any other legal proceedings relating to the complaint.

Clause 37 if conciliation fails the complainant may request referral to the Tribunal and the Commissioner must comply with that request and refer it to the Tribunal. If the complainant does not so request the complaint may be dismissed and may not thereafter be actionable under the Act.

Clause 38 the Tribunal may make interim orders to prevent any prejudicial conduct pending conciliation or a proceedings.

Clauses 39 to 41 deal with the jurisdiction of the Tribunal, when the Tribunal may hear a complaint, who the parties to a proceeding and time limits for hearing complaints.

Clause 42 deals with the inspection of exempt documents by the Tribunal.

Clause 43 deals with the range of orders the Tribunal may make including restraining further types of conduct or practices; redressing any loss or damage suffered by the complainant, including injury to feelings or humiliation; the correction of personal information held by the organisation. An award of damages of up to $100,000 may be made.

Clause 44 the Commissioner may serve a compliance notice on an organisation in certain circumstances where certain practices appear to contravene an IPP or code. The notice may require certain compliance action to be taken within a specified time. It is an indictable offence not to comply with a notice (see clause 48).

Clause 45 in determining whether to issue a notice under section 44 the Commissioner may by written notice require a person to give information or produce a document or attend at a specified time and place to give answers to question relevant to the decision. Clause 45(3) provides that the power is subject to the provisions of section 28(1) of the Freedom of Information Act 1982 dealing with the grant of an exemption certificate by the Secretary of the Department of Premier and Cabinet in relation to a document of an agency or a Minister.

Clause 46 the Commissioner may administer an oath or affirmation for the purposes of section 45.

Clause 47 provides for the privilege against self-incrimination in the following terms –

(1) It is a reasonable excuse for a natural person to refuse or fail to give information or answer a question or to produce a document when required to do so under this Part if giving the information or answering the question or producing the document might tend to incriminate the person.

(2) This section does not limit section 45(3).

Clause 48 it is an indictable offence not to comply with a notice under section 44 with penalties for individuals of up to $60,000 and for corporations of up to $300,000.

Clause 49 a person or organisation affected by a decision of the Commissioner to serve a compliance notice may apply to the Tribunal for a review of a decision to serve a compliance notice under section 44.

Clauses 50 to 63 deal with the appointment, remuneration, terms and conditions and powers of the Privacy Commissioner, staffing, functions, Annual Reports and like matters of the office of the Privacy Commissioner.

Clause 61 deals with delegations and provides –

61. Delegation

(1) The Privacy Commissioner may, by instrument, delegate to an employee referred to in section 57(1) any of his or her powers under this Act other than this power of delegation.

(2) The Privacy Commissioner may, by instrument, delegate to any person any of his or her powers under Division 3 of Part 5.

Clause 64 deals with issues of persons who are incapable of giving consent or communicating consent to the collection, use, disclosure or transfer of personal information. An authorised representative may give that consent on behalf os the person under an incapacity. It also deals with requests by incapable persons for access to or correction of information. An organisation may refuse access to the authorised representative if the giving of the information may endanger the individual. The classes of persons that may be an authorised representative are set out in section 64(6) as follows –

(a) a guardian of the individual; or

(b) an attorney for the individual under an enduring power of attorney; or

(c) an agent for the individual within the meaning of the Medical Treatment Act 1988; or

(d) an administrator or a person responsible within the meaning of the Guardianship and Administration Act 1986; or

(e) a parent of an individual, if the individual is a child; or

(f) otherwise empowered under law to perform any functions or duties or exercise powers as an agent of or in the best interests of the individual--

except to the extent that acting as an authorised representative of the individual is inconsistent with an order made by a court or tribunal.

Clause 65 a person must not fail to attend, or be sworn before the Commissioner or fail to answer questions or produce documents, or wilfully obstruct the Commissioner. Penalty: a fine of 60 penalty units ($6,000).

Clause 66 protects persons from liability connected with taking action under the Act such as any loss caused to anyone as a result of the lodging of a complaint or the giving of any information or document to the Commissioner.

Clause 67 is a secrecy provision and limits the freedom of the Commissioner, a delegate or staff of the Commissioner, or a consultant employed by the Commissioner to deal with or disclose information gained while holding that office or after holding that office unless it is authorised by the Act or the person concerned gives written consent.

Clause 68 is a standard clause deeming acts of an employee or agent to be the acts of an organisation in certain circumstances. Organisations may avoid liability for the acts of their employees if they demonstrate due diligence on their part.

Clause 69 an organisation may charge a fee for providing access to personal information under the Act.

Clause 70 deals with who may bring a prosecution under the Act.

Clause 73 is the regulation making power and provides –

The Governor in Council may make regulations for or with respect to any matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act.

Without limiting sub-section (1), the Governor in Council may make regulations prescribing fees for providing access to personal information under this Act.

Clause 74 inserts a new sub-paragraph (iiia) into section 4D(a) of the Parliamentary Committees Act 1968. The effect of the insertion is to confer on the Scrutiny of Acts and Regulations Committee an additional scrutiny of Bills term of reference as underlined –

The Committee records the Ministers comments in the Second Reading Speech in respect to the conferral of the additional head of scrutiny –

Provision has also been made for considering the impact of future legislation on information privacy. The Bill amends the Parliamentary Committees Act 1968 to provide that the Scrutiny of Acts and Regulations Committee will assess legislative proposals for consistency with the information privacy regime. In particular, it will be used to consider whether legislation unduly requires or authorises acts or practices that may have an adverse impact on personal privacy.

Clauses 75 to 79 make consequential amendments to a number of other Acts.

Clause 80 contains the mechanism to deal with the later commencement of the Commonwealth Act covering the private sector. On separate proclamation (clause 2) the amendment will incorporate into the definition of "Commonwealth-regulated organisation" the words "or an organisation" so that the Victorian and Commonwealth Acts will then cover the public and private sectors respectively.

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 72 declares that it is the intention of section 7 to alter or vary section 85 of the Constitution Act 1975.

Section 7 provides –

(1) Nothing in this Act –

(a) gives rise to any civil cause of action; or
(b) without limiting paragraph (a), operates to create in any person any legal right enforceable in a court or tribunal –
otherwise than in accordance with the procedures set out in this Act.

(2) A contravention of this Act does not create any criminal liability except to the extent expressly provided by this Act.

The Committee notes the comments in the Second Reading Speech –

Clause 72 of the Bill states that it is the intention of clause 7 to alter or vary section 85 of the Constitution Act 1975. I therefore 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.

Clause 7 provides that the Bill does not give rise to any civil cause of action or create any enforceable legal right other than as specifically provided in the Bill. Similarly, nothing in the Bill is to be construed as giving rise to criminal liability except to the extent expressly provided for.

The Bill is intended to create specific rights and obligations in relation to information privacy and to provide readily accessible and fair dispute resolution mechanisms, including scope for review. The Bill is not intended to give rise to broader rights and obligations outside those expressly provided in the Bill.

The reason for the alteration or variation to section 85 of the Constitution Act 1975 is to ensure that the scope of the Bill meets these expectations.

Schedule 1 contains the Information Privacy Principles dealing with –

1. Collection of personal information

Governs the collection of information, requiring organisations only to collect personal information necessary for their functions. Organisations must ensure that individuals know who is collecting their information and why and inform them that they may gain access to it for correction.

2. Use and disclosure

Governs the use and disclosure of information. In general, organisations must only use or disclose personal information for the purpose for which it is collected. However, secondary disclosure is permitted where such disclosure is related to the primary purpose of collection and the use or disclosure is within the reasonable expectations of the individual. Disclosure is also permitted in cases where there is a strong public interest in doing so, for example where there is a serious threat to life or where disclosure is required by law or required for legal proceedings.

3. Data quality steps to ensure information is accurate, complete and up to date

An organisation must take reasonable steps to make sure that the personal information it collects, uses or discloses is accurate, complete and up to date.

4. Data security steps to ensure data collected and held by organisations is not misused

An organisation must take reasonable steps to protect the personal information it holds from misuse and loss and from unauthorised access, modification or disclosure. An organisation must take reasonable steps to destroy or permanently de-identify personal information if it is no longer needed for any purpose.

5. Openness on policies of management of information

An organisation must set out in a document clearly expressed policies on its management of personal information. The organisation must make the document available to anyone who asks for it. On request by a person, an organisation must take reasonable steps to let the person know, generally, what sort of personal information it holds, for what purposes, and how it collects, holds, uses and discloses that information.

6. Access for individuals to information held by organisations in respect to them and opportunities to correct inaccurate information

Individuals are given the right to access their information and where necessary request corrections to it. In this respect the provisions of the Freedom of Information Act 1982 (the Act) continue to apply in respect to access to information held by the public sector. Contracted service providers may apply a fee for such requests consistent with the principles under the Act applying to public sector agencies.

7. Identifiers assigned to data collectors

Imposes limits on the use of unique identifiers between public sector organisations. Such identifiers can not be shared by different agencies except with the consent of the individual or where it is necessary for their functions.

8. Anonymity of individuals, where possible

Wherever it is lawful and practicable, individuals must have the option of not identifying themselves when entering transactions with an organisation.

9. Transborder data flows outside Victoria

Deals with the flow of information outside Victoria. An organisation is only allowed to transfer personal information outside Victoria if it reasonably believes the recipient is subject to a law, or other binding obligation, which imposes restrictions on the use of that information that are substantially similar to the information privacy principles.

Personal information may also be transferred with the individual's consent or if the transfer is necessary for the performance of a contract. If consent of the individual cannot practically be obtained, the organisation can only transfer the information if it is for the benefit of the individual and if the individual would be likely to give the consent.

10. Sensitive personal information in respect to racial or ethnic origin, political opinions and other matters

Sensitive information is information about an individual's racial or ethnic origin, political opinions, membership of a political, professional or trade association, philosophical or religious beliefs or affiliations, membership of a trade union, sexual preferences or practices or criminal record. In very limited circumstances, this information can be collected by public sector organisations without consent where necessary for the effective delivery of government welfare programs.

Clause 3 defined the meaning of ‘personal information’ and provided that it included certain matters but did not include information of a kind to which Schedule 2 applies. The Schedule applies to –

(a) information or an opinion about--

(i) the physical, mental or psychological health of an individual; or

(ii) a disability (at any time) of an individual; or

(iii) an individual's expressed wishes about the future provision of health services to him or her; or

(iv) a health service provided, or to be provided, to an individual--

that is also personal information; or

(b) other personal information collected to provide, or in providing, a health service; or

(c) other personal information about an individual collected in connection with the donation, or intended donation, by the individual of his or her body parts, organs or body substances--

but does not include personal information, or a class of personal information or personal information contained in a class of documents, that is prescribed not to be information of a kind to which this Schedule applies.

The Committee notes the comment in the Second Reading Speech –

The government considers that specialised legislation is necessary to deal with the complex policy issues that arise in relation to health information. For this reason the Minister for Health will introduce a Bill that will be dedicated exclusively to the protection of health information. That Bill will be coordinated with the Information Privacy Bill and will provide a framework which is appropriate for health.

The Committee makes no further comment.

Petroleum Products (Pricing) Bill

(Private Members Bill)

The Bill was introduced into the Legislative Assembly on 24 May 2000 by Mr Russell Savage MP with Mr Craig Ingram MP. The Second Reading Speech was delivered on 24 May 2000.

The purpose of the Bill is to regulate the retail price of petrol and liquefied petroleum gas in rural Victoria.

Clause 2 the Act comes into operation on proclamation but not later than by 1 January 2001.

Clause 4 provides that the Governor in Council may, by Order published in the Government Gazette declare a supplier to be a declared supplier for the purposes of this Act; and declare a class of petrol to be a declared class of petrol for the purposes of this Act.

Clause 5 provides that declared suppliers must provide price information to the Director of Consumer and Business Affairs on each business day at the time determined by the Director concerning the current retail price per litre of each declared class of petrol at each petrol pump supplied by the declared supplier in the Melbourne metropolitan area; and the current retail price per litre of liquefied petroleum gas at each gas pump supplied by the declared supplier in the Melbourne metropolitan area. A declared supplier must not provide false or misleading information to the Director of Consumer and Business Affairs under this section.

Clause 6 provides that not later than by 4 pm on each business day, the Director of Consumer and Business Affairs must determine a price to be the mean average retail price per litre in the Melbourne metropolitan area for each declared class of petrol; and for liquefied petroleum gas. The determination is to be based on the information provided to the Director of Consumer and Business Affairs under section 5 each day. The Director of Consumer and Business Affairs must ensure that each price determined on any day is published generally throughout Victoria before the end of that day. A determination is to be published in a manner determined by the Director of Consumer and Business Affairs which may include publication on radio, television, the Internet or through any print or telecommunication medium.

Clause 7 places a cap on petrol and gas prices in rural Victoria and provides that a retailer must not sell petrol of a declared class or petroleum gas at a place in rural Victoria that is located 200 kilometres or less from the Melbourne metropolitan area for a price per litre greater than the last price determined under section 6 for that class of petrol plus 4 cents per litre.

A retailer must not sell petrol of a declared class or petroleum gas at a place in rural Victoria that is located more than 200 kilometres from the Melbourne metropolitan area for a price per litre greater than the last price determined under section 6 for that class of petrol plus 7 cents per litre.

It is a defence to a prosecution for an offence under this section if the retailer proves that he or she did not know and had no reasonable means of finding out the relevant price determined under section 6 for the relevant class of petrol or liquefied petroleum gas.

Clause 8 provides that for the purposes of the Act a sale of petrol or gas to a person is deemed to take place at the place where the petrol or gas is physically delivered to that person.

Clause 9 provides that the Director of Consumer and Business Affairs may, by instrument, delegate to any person or class of persons employed under Part 3 of the Public Sector Management and Employment Act 1998 in the administration of this Act, any of the Director's functions or powers under this Act, other than this power of delegation.

Clause 10 incorporates Part 10 of the Fair Trading Act 1999 (except section 121) and thereby extends and applies the part (with any necessary modifications) to the Act as if any reference in that Part to the Fair Trading Act 1999 were a reference to this Act.

Part 10 of the Fair Trading Act 1999 deals with the powers and duties of inspectors in investigating offences under the Act.

Clause 11 provides that the prices fixed under clause 6 shall prevail over the prices fixed by the Fuel Prices Regulation Act 1981.

The Schedule lists the Melbourne Metropolitan Area.

The Committee makes no further comment.

Planning and Environment (Restrictive Covenants) Bill

7.1

The Bill was introduced into the Legislative Assembly on 31 May 2000 by the Honourable John Thwaites MLA with the Honourable Steve Bracks MLA. The Second Reading Speech was delivered on 1 June 2000.

The main purpose of the Bill is to amend the Planning and Environment Act 1987 (the Act) in relation to restrictive covenants.¹

The Committee notes the comments in the Second Reading Speech –

Restrictive covenants impose a wide variety of restrictions. Common ones relate to boundary fencing, number of dwellings, building materials, excavation of soil and rock, size and location of buildings, and use of the land. The provisions of the Bill only apply if the proposed use or development would result in a breach of a covenant. There is no public benefit to make the provisions apply to all covenanted land. For example, an owner intending to build a home on land affected by a covenant which prohibits quarrying is obviously unlikely to breach the covenant.

...

The Bill also ensures that responsible authorities are aware of covenants before they make decisions on permit applications. It requires an applicant to disclose a covenant at the outset. It then ensures that proper notice is given to owners of land benefiting from the covenant. It allows these owners to make objections and submissions about the application to use or develop land -- as well as the application or amendment relating to the covenant removal -- so that questions of standing are put aside in favour of smooth and integrated decision-making of both matters.

The joint permit application and scheme amendment method puts municipal councils in a central position to decide whether the proposed application and amendment ought to proceed.

Benefiting owners will get appropriate notice. They will be able to inspect the application, the amendment and the proposed permit, including its conditions, and make submissions about them. Submissions must be considered by both the municipal council as planning authority and, unless all are accepted by the council, an independent panel appointed by the minister. The panel must conduct a public hearing. The panel will also be expert -- only appropriately qualified members will be chosen.

Enforcement of covenants is properly left to the courts. However, the bill makes sure the covenant is removed or varied before the use or development commences. A mandatory condition must be included on relevant permits for use or development requiring the owner to ensure the relevant action by the register of land titles to remove or vary the covenant is complete before the permit is effective.

Any failure by an owner can then be pursued by either the responsible authority or another person as a prosecution or enforcement question under the Planning and Environment Act 1987 before the Magistrates Court or Victorian Civil and Administrative Tribunal. They are both more convenient forums than the Supreme Court. As well, penalties for planning offences, such as breach of a permit condition, are to be significantly increased under the Planning and Environment (Amendment) Bill 2000. For these reasons, it will now be much easier to ensure permit holders do the right thing.

Clause 2 The provisions in the Bill come into operation on the day after Royal Assent.

Clause 5 inserts a new section 47(1)(d) to provide that a copy of a covenant accompanies an application for a permit if the land is burdened by a covenant.

Clause 6 inserts new sections 52(1)(ca) and 52(1D) requiring notice of an application to use or develop land which would result in a breach of a covenant must be given to the owners of land benefited by a registered restrictive covenant by placing a sign on the land which is the subject of the application; and by publishing a notice in a newspaper generally circulating in the area in which that land is situated.

Clause 7 inserts a new section 57(1A) providing that if the use or development for which the permit is sought would result in a breach of a registered restrictive covenant, an owner of any land benefited by the covenant is deemed to be a person affected by the grant of the permit.

Clause 8 inserts a new section 61(4) to provide that if the grant of a permit would allow a use or development which would result in a breach of a registered restrictive covenant, the responsible authority must refuse to grant the permit unless a permit has been issued, or a decision made to grant a permit, to allow the removal or variation of the covenant.

Clause 9 inserts a new section 62(1)(aa) providing that if the grant of the permit would allow a use or development which would result in a breach of a registered restrictive covenant, to include a condition in the permit that it does not come into effect until the covenant is removed or varied. Clause 10 inserts a new section 80(2) providing that an applicant cannot appeal to the Victorian Civil and Administrative Tribunal (VCAT) against such a condition.

Clause 10 amends a number of sections amongst them it inserts anew section 73(2) to provide that the responsible authority must not amend a permit if the amendment would allow a use or development which would result in a breach of a registered restrictive covenant.

Clause 12 inserts a new section 96A(4) which requires that a request for an amendment to the planning scheme must be accompanied by a copy of the covenant, if the land is burdened by a registered restrictive covenant.

Clause 13 inserts a new sections 96C(1)(g), 96C(2A) and (2B) requiring notice to be given to the owners of land benefited by a registered restrictive covenant, if the use or development would result in a breach of the covenant by placing a sign on the land which is the subject of the amendment which must state the place where a copy of the proposed permit may be inspected.

Clause 14 inserts new sections 96I(1A) and (1B) to provide that the Minister must not grant a permit if it would allow a use or development which would result in a breach of a registered restrictive covenant unless the amendment to which the permit applies provides for the variation or removal of the covenant; or a permit has been issued, or a decision made to grant a permit, to allow the removal or variation of the covenant.

96I(1B) provides that if the grant of the permit would allow a use or development which would result in a breach of a registered restrictive covenant, the permit must be granted subject to a condition that the permit is not to come into effect until the covenant is removed or varied.

Clause 15 inserts anew section 214 providing for transitional arrangements applying the new amendments made by the Bill to an application for a permit that was lodged but not determined by the responsible authority or planning authority or Minister before the commencement day; and a request or an application for an amendment to a permit that was lodged but not determined by the responsible authority or the Tribunal before the commencement day; and an application for review relating to a permit application that was made to the Tribunal but not determined before the commencement day; and an application for review made to the Tribunal after the commencement day in respect of a determination made before the commencement day by a responsible authority or planning authority or Minister in respect of a permit application.

The Committee makes no further comment.

Victims of Crime Assistance (Amendment) Bill

8.1

The Bill was introduced into the Legislative Assembly on 24 May 2000 by the Honourable Rob Hulls MLA with the Honourable John Brumby MLA. The Second Reading Speech was delivered on 26 May 2000.

The main purposes of the Bill are to –

• amend the Victims of Crime Assistance Act 1996 (the Act) to enable primary victims of acts of violence to be given a monetary award for significant adverse effects experienced or suffered by them and to increase the amounts that may be awarded to secondary and related victims in certain circumstances;
• amend the Sentencing Act 1991 to reform the process by which victims may recover compensation from defendants in criminal proceedings without having to commence civil proceedings.

Clause 2 The provisions in the Bill come into operation upon proclamation but not later than by 1 January 2001.

Clause 4 substitutes the purposes and objectives section of the Act (section 1) as follows –

(1) The purpose of this Act is to provide assistance to victims of crime.

(2) The objectives of this Act are--

(a) to assist victims of crime to recover from the crime by paying them financial assistance for expenses incurred, or reasonably likely to be incurred, by them as a direct result of the crime; and

(b) to pay certain victims of crime financial assistance (including special financial assistance) as a symbolic expression by the State of the community's sympathy and condolence for, and recognition of, significant adverse effects experienced or suffered by them as victims of crime; and

(c) to allow victims of crime to have recourse to financial assistance under this Act where compensation for the injury cannot be obtained from the offender or other sources.

(3) Awards of financial assistance (including special financial assistance) to victims of crime are not intended to reflect the level of compensation to which victims of crime may be entitled at common law or otherwise.

(4) The scheme provided by this Act is intended to complement other services provided by government to victims of crime.

Clause 5 extends the definition of ‘injury’ as including an exacerbation of mental illness or disorder and also inserts a new definition for "significant adverse effect" –

in relation to a victim of an act of violence, includes any grief, distress, trauma or injury experienced or suffered by the victim as a direct result of the act of violence but does not include any loss of, or damage to, property.

Clause 6 amends section 8 to provide that an award of ‘special financial assistance’ under section 8A are over and above any other entitlements that a primary victim has under the Act.

Clause 7 inserts a new section 8A concerning special financial assistance to primary victims for significant adverse effects suffered as a result of an act of violence. Acts of violence are to be characterised in 4 categories A, B, C and D as defined by the regulations. The regulations may –

• specify an act of violence or a class of act of violence as a category A, B, C or D act of violence; and
• prescribe a higher minimum or maximum amount in relation to a specified category of act of violence; and
• prescribe circumstances in which the prescribed higher minimum or maximum amount is applicable.

Clause 8 inserts a new section 10A to extend additional financial assistance in exceptional circumstances to certain secondary victims to assist them in their recovery. An example being a parent or guardians being injured witnessing an act of violence committed against one of their children.

Clause 9 amends section 12 dealing with assistance available to related victims and effectively allows the related victim pool ceiling of $100,000 to be exceeded in exceptional circumstances. The amendments also allow additional financial assistance to be available in exceptional circumstances to related victims to assist in their recovery.

Clause 10 amends section 16 to ensure that crimes compensation is a payer of last resort and amounts received by victims are offset against amounts received under the Act. The Victims of Crime Assistance Tribunal (the Tribunal) may reduce amounts under the Act where other compensation schemes are available to the victim such as WorkCover, the TAC or an insurance policy or superannuation scheme.

Clause 11 inserts a new section 27A dealing with information to be given by related victim applicants. The provision requires that in an application a related victim must set out in the application details of every other person whom the applicant believes may be a related victim of the act of violence; and every other person whom the applicant believes may allege that he or she is a related victim of the act of violence; and any person whom the applicant believes may apply in accordance with Division 4 of Part 2 (dealing with assistance for funeral expenses).

It is sufficient compliance with the provisions in the Act if, in circumstances in which the applicant knows of the existence of a person or class of persons of whom he or she would be required to give details under that sub-section but does not know their name or address, the applicant sets out in the application all matters within his or her knowledge that may enable the Tribunal to ascertain their name and address.

In this respect clause 19(2) repeals section 30 the effect of which will mean that failure to comply with notification under the new section 27A is not subject to a penalty.

Clause 12 amends section 32 to provide that the Tribunal may make an award without waiting for the outcome of related civil proceedings or a proceedings under Subdivision (1) of Division 2 of Part 4 of the Sentencing Act 1991.

Clause 15 inserts a new section 42A and deals with the right to inspect documents and the confidentiality of documents filed with the Tribunal.

Clause 16 amends section 43 to restrict publication of material provided to the Tribunal unless the Tribunal orders that it is in the public interest to allow publication.

Clause 18 amends section 60(1) to enable applicants to seek a variation of their award of special financial assistance.

Section 60(2) is also amended to allow child victims additional time to seek a variation of their award. Child victims will have 6 years to bring such an application after the award or up to the age of 24 years whichever is the longer period.

Clause 20 inserts a new section 77 and makes transitional provisions for the amendments made by the Bill. The major provisions in relation to acts of violence apply to injuries sustained after 1 July 2000. Some other provisions such as clauses 15, 16 and 18(2) apply at the commencement of the Act.

New section 77(3) and (4) also apply the provisions of the amended act to sexual offences as defined by section 3 of the Act committed against children before 1 July 2000 where the act occurred on or after 1 July 1997 and the applicant had not made an application under the former Act (Criminal Injuries Compensation Act 1983). Such an application may be made any time before 1 July 2002 or, at any time within 2 years after the person is committed or presented for trial (if that period ends on or after 1 July 2002) and, despite anything to the contrary in section 29, such an application is not out of time within the meaning of that section despite it not being made within 2 years after the occurrence of the act of violence.

Applications for pre-July 2000 child sexual assault claims determined before the commencement of the amendments made by the Bill may be re-opened and adjusted to make them consistent with the provisions of the amended Act. A variation application must be brought by 1 July 2002 or within 2 years of the alleged offender being committed, or directly presented, for trial.

New sections 77(8) and (9) provide that if the provisions of the Act do not commence on 1 July 2000 an applicant may still take the benefit of the provisions of the amended Act if the act of violence occurs on or after 1 July 2000.

New section 77(10) provides that for the purposes of section 77, if an act of violence occurs between two dates, one before and one on or after 1 July 2000, the act of violence is deemed to have occurred on or after 1 July 2000.

Clause 21 inserts a new subdivision (1) of Division 2 of Part 4 before section 86 headed ‘Compensation for pain and suffering etc’. The subdivision consists of new sections 85A to 85M.

Section 85A provides definitions including for "injury" including exacerbation of a mental illness or disorder, whether or not flowing from nervous shock; or pregnancy; or grief, distress or trauma or other significant adverse effect but does not include injury arising from loss of or damage to property.

"medical expenses" includes dental, optometry, physiotherapy, psychology treatment, hospital and ambulance expenses.

Section 85B allows a court to make a compensation order if a court finds a person guilty of an offence; or convicts a person of an offence it may, on the application of a person who has suffered any injury as a direct result of the offence, order the offender to pay compensation of such amount as the court thinks fit.

Such an order may be for pain and suffering experienced by the victim as a direct result of the offence; for some or all of any expenses actually incurred, or reasonably likely to be incurred, by the victim for reasonable counselling services as a direct result of the offence; for some or all of any medical expenses actually and reasonably incurred, or reasonably likely to be incurred, by the victim as a direct result of the offence; for some or all of any other expenses actually and reasonably incurred, or reasonably likely to be incurred, by the victim as a direct result of the offence, not including any expense arising from loss of or damage to property.

In making a compensation order the court may direct that the compensation be paid by instalments and that in default of payment of any one instalment the whole of the compensation remaining unpaid shall become due and payable.

Section 85C deals with the application for a compensation order and provides that an application must be made within 12 months after the offender is found guilty or convicted of the offence. The provisions also allow the prosecution to assist a victim to make an application.

Section 85D permits the court, if it is in the interests of justice to do so, to extend time for the making of an application under 85C.

Section 85E allows a party to an application to appear in person or be represented at the proceeding.

Section 85H provides that the court may take the financial circumstances of the offender into account but is not prevented from making a compensation order only because it has been unable to find out the financial circumstances of the offender.

Section 85I provides that a court must reduce compensation made under the Act by the amount of any award under the Victims of Crime Assistance Act 1996. However the State may make an application under section 87A of the Sentencing Act 1991 to the court to be compensated for part all of an amount paid under the Victims of Crime Assistance Act 1996.

Section 85J provides that a court must give reasons for its decision on deciding to grant or refuse an application for a compensation order or to refuse to hear and determine such an application.

Section 85K provides that each party to a proceeding must bear their own costs of the proceeding under the new subdivision unless the court otherwise determines.

Section 85L preserves the right to bring civil proceedings to recover damages for any expense or other matter so far as it is not satisfied by payment or recovery of compensation under the new subdivision.

Clause 22 amends section 3 dealing with the definitions and inserts the words ‘including grief, distress, trauma or other significant adverse effect’ after the word damage in the definition of the word ‘victim’.

The clause makes consequential amendments to section 86 by removing references to ‘pain and suffering’. The amended section 86 will thus deal only with compensation for property loss whereas pain and suffering loss is dealt with by the new subdivision introduced by clause 21 above.

Clause 24 provides transitional provisions providing that the new processes provided in clause 21 apply to applications made after the commencement of the provisions irrespective of when the offence occurred or the finding of guilt was made or the conviction was recorded.

Clause 25 makes consequential amendments to a number of Acts. [Refer to 8.4 for section 85 Constitution Act 1975 statement in respect to the consequential amendments made to the Accident Compensation Act 1985 and the Transport Accident Act 1986].

Clause 26 inserts a new section 252E in the Accident Compensation Act 1985 declaring that it is the intention of section 138B, as amended by clause 25 of the Bill, to alter or vary section 85 of the Constitution Act 1975.

Clause 27 inserts a new section 132C into the Transport Accident Act 1986 declaring that it is the intention of section 107A, as amended by clause 25 of the Bill, to alter or vary section 85 of the Constitution Act 1975.

The Committee notes the section 85 Constitution Act 1975 statement made in the Second Reading Speech –

I make the following statement under section 85 of the Constitution Act 1975 of the reason why section 252E of the Accident Compensation Act 1985, as inserted by clause 26 of this Bill, alters or varies section 85 of the Constitution Act 1975.

Clause 25 amends the new section 138B of the Accident Compensation Act 1985, as inserted by the Accident Compensation (Common Law and Benefits) Bill 2000.

This new section (as amended by this Bill) operates to prevent a court (including the Supreme Court) from making an order for the payment of compensation under Subdivision 1 of Division 2 of Part 4 of the Sentencing Act 1991 if the compensation relates to an injury or death in respect of which the person concerned has or may have an entitlement to compensation under the Accident Compensation Act 1985 and the relevant offence is against the Dangerous Goods Act 1985, the Occupational Health and Safety Act 1985, the Equipment (Public Safety) Act 1994 or any regulations made under any of those Acts.

The reason for this limitation of the jurisdiction of the Supreme Court is to give effect to government policy that, in the cases referred to, compensation under Subdivision 1 of Division 2 of Part 4 of the Sentencing Act should not be available.

I make the following statement under section 85 of the Constitution Act 1975 of the reason why section 132C of the Transport Accident Act 1986, as inserted by clause 27 of this Bill, alters or varies section 85 of the Constitution Act 1975.

Clause 25 amends the new section 107A of the Transport Accident Act 1986, as inserted by the Accident Compensation (Common Law and Benefits) Bill 2000. This new section (as amended by this Bill) operates to prevent a court (including the Supreme Court) from making an order for the payment of compensation under Subdivision 1 of Division 2 of Part 4 of the Sentencing Act 1991 if the compensation relates to an injury or death in respect of which the person concerned has or may have an entitlement to compensation under the Transport Accident Act 1986 and the relevant offence is against the Road Safety Act 1986 or any regulations made under that Act.

The reason for this limitation of the jurisdiction of the Supreme Court is to give effect to government policy that, in the cases referred to, compensation under Subdivision 1 of Division 2 of Part 4 of the Sentencing Act should not be available.

The Committee makes no further comment.

Chinese Medicine Registration Bill

9.1

The Bill was introduced into the Legislative Assembly on 5 April 2000 by the Honourable John Thwaites MLA with the Honourable Steve Bracks MLA. The Second Reading Speech was delivered on 6 April 2000.

The Committee considered this Bill in Alert Digest No 5 of 2000 on and wrote to the Minister on 2 May 2000. The Committee expressed concern at the delay of the long commencement of the provisions in the Bill (1 December 2002) provided in clause 2 of the Bill. The Minister’s response was received on 3 July 2000.

I write in response to your letter dated 2 May 2000 concerning the Chinese Medicine Registration Act 2000.

In response to your request for clarification concerning Clause 2 of the Act, I propose that the provisions which establish the Chinese Medicine Registration Board be proclaimed by 1^st December 2000. This will allow time for the positions on the Board to be advertised and the appointments made by Governor in Council. The provisions requiring registration of practitioners are proposed to be proclaimed by 30^th June 2001, to allow sufficient time for the "grandparenting" arrangements and accreditation procedures to be determined. The provisions amending the Drugs Poisons and Controlled Substances Act to establish a new Schedule 1 in the Poisons List and create a mechanism to control prescribing and dispensing of these substances are proposed to be proclaimed by December 2001. This is to allow sufficient time for work to be done to establish the list of herbs and conduct consultations with the profession and the Poisons Advisory Committee.

There are complex issues to be resolved concerning the following:

• Recognition of the qualifications of overseas trained practitioners.
• Accreditation of courses across Australia at certificate through to post graduate level.
• How other registration boards governing chiropractors, dental care providers, medical practitioners, nurses, optometrists, osteopaths, pharmacists and physiotherapists will administer the registration requirements for their practitioners.
• Establishment of a new Schedule 1 of the Poisons List which may well be adopted nationally within the Standard for Uniform Scheduling of Drugs and Poisons.

Dairy Bill

10.1

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.

The Committee reported on this Bill in Alert Digest No 6 of 2000 in respect to clause 2 concerning the commencement provision. The Committee wrote to the Minister on 23 May 2000 and received a response on 13 June 2000. In it’s letter to the Minister the Committee made the following comment –

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.

I refer to your letter dated 23 May 2000 in which you requested advice in relation to the commencement by proclamation clause of the Dairy Bill.

As noted in the Explanatory Memorandum, the decision to introduce the Bill was made following a poll of Victorian farmers which showed strong support for the deregulation of the dairy industry. The decision by dairy farmers and the Government was made on the basis that the $1.74 billion dairy industry adjustment package facilitated by the Commonwealth Government is available to dairy farmers. The availability of this package is dependent on each State repealing legislation regulating price and supply controls over market milk.

Provision for the Bill to commence by proclamation is required because Victoria’s commitment to deregulate is contingent on the availability of the Commonwealth’s industry adjustment package. As this is dependent on all States repealing price and supply controls, it is possible that the Commonwealth package will not be available and the Government may decide not to proceed with deregulation. As noted in the Explanatory Memorandum, commencement by proclamation will ensure that the removal of Victoria’s price and supply controls only occurs if there is a similar commitment by all States to deregulate.

Commencement by proclamation will also enable an orderly transition process in winding up the Victorian Dairy Industry Authority’s operations and the transfer of food safety powers to the new dairy food safety authority.

I hope that this information will assist the Committee in determining the appropriateness of using a commencement by proclamation clause in the Dairy Bill.

Disability Services (Amendment) Bill

11.1

The Bill was introduced into the Legislative Assembly on 22 March 2000 by the Honourable Christine Campbell MLA with the Honourable Lyn Kosky MLA. The Second Reading Speech was delivered on 4 April 2000.

The Committee considered the Bill in Alert Digest No. 5 of 2000. The Committee wrote to the Minister on 2 May 2000 and received a response on 31 May 2000. The Committee wrote to the Minister seeking further clarification in respect to clause 6 of the Bill. The comment made by the Committee in the Alert Digest was –

The Committee considered the provisions in clause 6 inserting a new section 9(3)(b) into the Act. The Committee notes that in its present form proposed new section 9(3)(b) as inserted by clause 6 may abrogate the privilege against self-incrimination. The provision does not require the community visitor to give a warning to the person that the person’s answer may incriminate them and render them subject to a pecuniary penalty. The Committee does however note that an identical provision already exists in a similar health related Act the Intellectually Disabled Persons’ Services Act 1986. The Committee is however concerned to clarify the effect of the clause in respect to the privilege against self-incrimination.

The Committee resolved to write to the Minister to seek further information concerning the privilege against self- incrimination and the operation of the powers given to a community visitor pursuant to this clause.

You have sought clarification on the effect of clause 6 in respect to the privilege against self-incrimination. Clause 6 inserts a new section 9(3)(b) into the Act and provides –

that any member of the staff or management of a residential service provider, who -

(b) does not give full and true answers to the best of that person's knowledge to any questions asked by a community visitor in the performance or exercise of any power, duty or function under this Act; or is guilty of an offence against this Act and liable to a penalty of not more than 25 penalty units.

This clause mirrors a provision in the Intellectually Disabled Persons’ Services Act 1986 and may also be found in the Mental Health Act 1986 and the Health Services Act 1988.

The Community Visitors’ Program, managed by the Office of the Public Advocate, comprises members of the community appointed by Governor-in-Council who work as volunteers with responsibility to visit and inspect accommodation services and receive complaints from residents within disability, mental health and supported residential services.

A Final Report Evaluation of the Community Visitors’ Program concluded that the current community visitors’ programs provide impressive coverage of a wide number of services and offer safeguards and access for individual consumers’ issues not available elsewhere in the system. Without confidential access to community visitors, some important issues would not be reported or resolved. In addition, community visitors’ programs provide an independent point of reference for service providers and the Department of Human Services in the challenge to demonstrate service quality.

The policy reason for section 9(3)(b) is to ensure that vulnerable people are protected. It also aims to ensure that community visitors are given access to as much information as possible in the services that they are visiting. Community visitors' visits can take place in a context where residents' may be too disempowered to provide any information about the conditions in a service and therefore the only people from whom information can be obtained will be the staff and management.

If a staff member or manager stated to a community visitor that they refused to answer any questions on the basis that it would incriminate them, it would be open to them to argue that as a defence to the charge. It is therefore still open to a person to claim the privilege and have a court rule on whether that is permissible under the Act.

It is important to note that the privilege against self-incrimination should not be confused with the right to silence. If a person who claimed the privilege and refused to answer Community Visitors’ questions was then charged under section 9(3)(b), that person would of course retain the right to make a "no comment" record of interview in relation to the charge.

Education Acts (Amendment) Bill

12.1

The Bill was introduced into the Legislative Assembly on 15 March 2000 by the Honourable Mary Delahunty MLA with the Honourable Peter Batchelor MLA. The Second Reading Speech was delivered on 16 March 2000.

The Committee considered the Bill in Alert Digest No. 4 of 2000 and made the following comment–

The Committee resolved to write to the Minister to seek clarification whether it is intended that the saving provision made by new section 15ZL is intended to apply to both sub-paragraphs (a) and (b) of section 15T(5).

Thank you for your letters of [3 April 2000 and 7 June 2000] seeking clarification of the intended effect and ambit of section 15ZL of the above Bill. Your letter notes that section 15ZL authorises the Minister to continue to make Ministerial Orders under section 15T(5) of the Education Act 1958 as if section 15T had not been repealed.

Section 15T(5) enabled the Minister to make Orders in relation to –

(a) the salaries, allowances and conditions of employment of school council employees, and

(b) the disqualification of persons from being employed as a teacher if the person has been found guilty or convicted of a criminal offence within the meaning of section 35 (which deals with sexual offences against children).

The point on which clarification was sought was whether the ability to continue to make Orders under section 15ZL was intended to apply to both sub paragraphs (a) and (b) of section 15T(5).

In reply I advise that on 30 March 2000, legal advice was received which stated that clause 15ZK of the Bill preserved the existing terms and conditions of employment for non transferring employees until the employment agreement expired or otherwise ceased to have effect. The legal advice stated that the power to make Ministerial Orders under 15T(5) would be construed by the Courts in a way which did not interfere with the express words of clause 15ZK.

However, to clarify the matter, clause 15ZL was amended. It now expressly provides that the Minister may continue to make Orders under section 15T(5)(b) of the Education Act 1958.

Emergency Management (Amendment) Bill

13.1

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.

The Committee considered this Bill in Alert Digest No. 6 of 2000. The Committee wrote to the Minister on 23 May 2000 and received a response on 1 June 2000. The Committee expressed concern in respect to new section 21H, a delegation provision, in clause 6 of the Bill in the following terms –

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.

Thank you for your letter dated 23 May 2000 in relation to the Emergency Management (Amendment) Bill.

The Scrutiny of Acts and Regulations Committee has expressed concern in relation to the delegation power contained in Clause 6 (new section 21H) of the Bill. The Committee is concerned that the delegation power is expressed in sufficiently wide terms to enable sub-delegation.

The establishment of an Emergency Services Commissioner is a new position for Victoria and fulfils an election promise by the Bracks Government. The Commissioner will be responsible, among other things, for establishing and monitoring standards for the prevention and management of emergencies to be adopted by all emergency services agencies. The Commissioner in establishing and monitoring standards will need to obtain information from the emergency services agencies. Whilst the emphasis will be on a co-operation and co-ordinated with the agencies the Commissioner needs powers to underpin his role.

The wide role of the Commissioner, the significance of that role in dealing with matters of emergency management and the novel nature of the position are such that it is believed that a wide delegation power is necessary. The Commissioner will need to draw on expertise from a variety of sources to ensure that the standards which are set are reasonable and realistic but also stimulate improvement and enhance the operational performance of our emergency services. The important role of monitoring and ensuring accountability for the operational performance of the emergency services agencies towards the standards may also require the involvement of a range of sources. Delegation may be necessary to achieve these roles adequately.

I expect that the Commissioner would exercise any delegation power with care and appropriate oversight.

I note that the Commissioner is required to submit as part of the annual report of the Department a report on the Commissioner’s operations. I will require the Commissioner to provide details of any relevant delegations in his report.

I trust that the above information assists the Committee in its consideration of the Bill.

Equal Opportunity (Gender Identity and Sexual Orientation) Bill

14.1

The Bill was introduced into the Legislative Assembly on 12 April 2000 by the Honourable Rob Hulls MLA with the Honourable John Brumby MLA. The Second Reading Speech was delivered on 13 April 2000.

The Committee considered this Bill in Alert Digest No. 5 of 2000. The Committee wrote to the Minister on 2 May 2000 and received a response on 23 May 2000. The Committee expressed the following concerns –

Clause 6 amends section 66 of the Act by inserting "or with a gender identity" after the word "sex" to permit the exclusion of persons fitting that attribute from participating in competitive sports activities where strength, stamina or physique of competitors is relevant.

In the Committees consideration of the Bill it noted that the only exception dealt with by the Bill relates to ‘competitive sporting activity’. Following careful consideration of the possible ambit of the additional new attributes the Committee identified at least 3 circumstances where exceptions may be desirable or necessary to take into account a balancing of rights and freedoms of others. The Committee raises these concerns in the form of three questions , as follows –

1.Would a hotel contravene the Act if it excludes a trans-gender person from the ladies toilet?

2. Would a hospital contravene the Act if it refuses to admit a trans-gender person into a female ward?

3.Would the State contravene the Act if it refused a trans-gender offender sentenced to a term of imprisonment, a demand or request by the offender to be incarcerated in a female prison?

In the absence of any necessary or appropriate specific exemptions under the Act similar to the exemption relating to ‘competitive sporting activity, the Committee will write to the Attorney-General to clarify whether any persons rights and freedoms may be adversely affected by these provisions.

Transitional provisions

Clause 7 inserts a new section 224 into the Act and is a transitional provision providing that a complaint alleging discrimination on the basis of ‘sexual orientation’ can be brought whether or not the alleged incident took place before or after the provisions of the Bill come into operation, provided that no other complaint has been brought in respect to the alleged incident. Complaints already brought must be determined as if clause 5 had not come into operation.

Section 108(1)(c) of the Act provides that if the Commission considers that a complaint relates to an alleged contravention of the Act that took place more than 12 months before the complaint was lodged the Commission may decline to entertain the complaint.

The Committee notes that the transitional provisions in clause 7 may be interpreted as a retrospective provision and as such may contravene section 4D(a)(i) of the Parliamentary Committees Act 1968 as a possible trespass to rights and freedoms.

The Committee notes the Second Reading Speech, as is mindful of submissions made to the Committee that the provision may simply codify the existing state of the law, that is, it is presently unlawful to discriminate on the grounds or attributes of ‘sex’ and ‘lawful sexual activity’ in section 6 of the unamended Act and the amendment does no more than declare that position as separate attributes.

The Committee resolved to write to the Minister to clarify that this is so and that no retrospective liability is intended to arise.

I am writing in response to your letter of 2 May 2000 seeking clarification of clauses 6 and 7 of this Bill.

The need for additional exceptions was considered during the drafting of the Bill. It was decided that besides the area of competitive sport, the current exceptions would adequately cover any difficulties that may arise as a result of the amendment. For example the current section 82 of the Equal Opportunity Act 1995 provides that the prohibition of discrimination in the Act does not apply "in relation to the provision to people with a particular attribute of special services, benefits or facilities that are designed –

to meet the special needs of those people; or

to prevent or reduce a disadvantage suffered by those people in relation to their education, accommodation, training or welfare."

This means that it is not unlawful to provide services that meet the safety, privacy and other needs of women such as women-only toilets or hospital wards or prisons.

Therefore all people who are not women can be legally excluded from such services.

The new ground of gender identity does not change the fact that the law recognises only two sexes-male and female. Members of one sex can lawfully be excluded from services that are designed to meet the special needs of the other sex.

Transgender people may be female to male transgender as well as male to female.

However under the law transgender people will still be considered either male or female. It would not be unlawful to exclude a transgender person who is a man from services designed to meet the special needs of women.

The Committee should note that the new attribute of gender identity is intended to only offer protection from discrimination to people who legitimately identify as a member of their non-birth sex, such as people who undergo gender reassignment surgery or dress in the clothes of the other sex because they legitimately identify as a member of their non-birth sex. I made this clear in the Second Reading Speech for Bill when I said:

"This Bill…extends the protection against discrimination afforded by the [Equal Opportunity] Act to people whose gender identity does not match their physical sex at birth."

The Bill is not intended to offer protection from discrimination for people who do not identify as a member of the other sex but who may dress in the clothing of the other sex for ulterior motives, such as a man who seeks to gain access to women’s toilets for criminal purposes.

Taking the above into account, the answer to each of the three questions posed by the Committee is "only if the transgender person is a woman for the purposes of Victorian law."

The common law test for determining the sex of a person is not changed by this Bill.

Clause 7 is not intended to give rise to any retrospective liability. It is based on the fact that the current ground of lawful sexual activity prohibits discrimination against people on the basis of their sexuality. This was made clear in the Second Reading Speech that accompanied the Equal Opportunity Act 1995 and has been the meaning applied in cases that have considered the attribute.

Clause 7 was inserted to avoid the situation where a person who is discriminated against on the basis of his or her sexuality prior to the Bill coming into operation would be forced to lodge a complaint of lawful sexual activity discrimination even though the ground of sexual orientation had been included in the Equal Opportunity Act.

The Committee should note that clause 7 only relates to complaints of sexual orientation discrimination. Gender identity discrimination will only be unlawful from the date of proclamation of the Act. It appears from your letter that the Committee may believe that the new ground of gender identity will relate to some aspects of the current ground of sex. This is not the intention of the legislation.

Health Practitioner Acts (Amendment) Bill

15.1

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.

The Committee considered this Bill in Alert Digest No 6 of 2000 in context of its broader consideration of the Psychologists Registration Bill in the same Alert Digest. The Committee wrote to the Minister on 23 May 2000 and received a response from the Minister on 13 June 2000. The Committee made the following comment in relation to this Bill in its comments on clause 56(3) of the Psychologists Registration Bill –

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.

As you have noted, the Health Practitioner Acts (Amendment) Bill amends the Medical Practice Act 1994 and the Dental Practice Act 1999 but does not remove the section 85 provisions in those Acts relating to provisions which are identical to clause 56(3).

This Bill updates the Medical Practice Act and the Dental Practice Act to reflect modifications to the model of health practitioner legislation since those Acts were passed. Unlike the Chinese Medicine Registration Bill and the Psychologists Registration Bill, this Bill does not enact new legislation.

It was considered that the section 85 provisions in these Acts should not be removed so that all health practitioner registration Acts passed before Autumn 2000 sitting of parliament are consistent of this regard. This should avoid any inference that Parliament intended differential treatment in respect of health practitioner registration legislation passed before autumn 2000.

The Government will consider whether it is necessary to remove the section 85 provision from all health practitioner registration Acts. If it does so, it will ensure that the provisions are removed from all health practitioner registration Acts at the same time.

Psychologists Registration Bill

16.1

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.

The Committee considered this Bill in Alert Digest No 6 of 2000. The Committee wrote to the Minister in respect to clause 56(3) on 23 May 2000 and received a response on 13 June 2000. The Committee made the following comment in its letter to the Minister –

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 1968.²

The Committee will write to the Minister to seek clarification as to the intended application of clause 56(3) and why it was thought unnecessary to provide a section 85 provision in this instance

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.

Clause 56(3) of the Psychologists Registration Bill provides that:

No action for defamation lies against the Board or its members for giving a notice under [section 56].

Clause 56 imposes an obligation on the Board to notify designated people and bodies if a determination has been made which affects the registration of a psychologist.

As you have noted, apart from the Chinese Medicine Registration Bill, previous health practitioner registration Acts, on which this Bill is based, contain the equivalent of clause 56(3) and a provision which states that the equivalent provision is intended to alter or vary section 85 of the Constitution Act.

Clause 56(3) of the Chinese Medicine Registration Bill is identical to clause 56(3) of the Psychologists Registration Bill. Clause 56(3) does not in fact limit the jurisdiction of the Supreme Court. The provision only affirms the existing common law position that a person cannot be held liable for defamation if all that he of she has done is provide information which she or he is legally required to provide. Therefore, I believe that it is not necessary to specifically exclude the jurisdiction of the Supreme Court by complying with the requirements of section 85 of the Constitution Act.

It is open to a person aggrieved by a notification made by the Board to make an application to the Supreme Court. The Supreme Court must then consider whether or not the circumstances complained of fall within the notification provision of the legislation.

I am of the view that, although clause 56(3) is simply declaratory of the common law, it should nevertheless be included in the Chinese Medicine Registration Bill to be consistent with other health practitioner registration Acts. If those Acts contain the equivalent of clause 56(3), and it is not included in the Chinese Medicine Registration Bill, an argument may be raised that Parliament intended to deny to the Chinese Medicine Registration Board and its members the protection which the common law provides against defamation for people who provide information in accordance with their legal obligations.

This approach adopted in the Chinese Medicine Registration Bill was endorsed by Parliamentary Counsel and the Department of Justice. The Psychologists Registration Bill has followed the same approach.

Rail Corporations and Transport Acts (Amendment) Bill

17.1

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

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

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

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

Thank you for your letter 29 February 2000 concerning clause 36 of the Rail Corporations and Transport Acts (Amendment) Bill 1999.

As you are aware, this Bill was introduced by the former Government into Parliament. The then Opposition opposed the Bill.

The Department of Infrastructure has prepared a statement (attached) which sets out the history of clause 37 and the provisions of the Public Transport Competition Act 1995 which it amends.

I trust the information in the attached statement meets your requirements.

CLAUSE 37 OF THE RAIL CORPORATIONS AND TRANSPORT ACTS (AMENDMENT) BILL 1999

1. Clause 37 of the Rail Corporations and Transport Acts (Amendment) Bill 1999 (the RCTA Bill) amended section 37 of the Public Transport Competition Act 1995.

2. The Public Transport Competition Bill was introduced into Parliament by the then Minister for Public Transport, the Hon Alan Brown MP in May 1995. The main purpose of the Bill was to improve the operation of road-based public transport by providing for the accreditation of operators and implementing a system of service contracts for certain types of transport service. Clauses 36 and 37 of the Bill provided that –

36. No compensation payable

(1) No compensation is payable to any person in respect of or as a consequence of any decision of the Secretary under this Act—

(a) to give or refuse to give an accreditation in relation to any kind of road transport passenger service;
(b) to impose a condition on an accreditation;
(c) to vary the kind of road transport passenger service to which an accreditation relates;
(d) to vary or revoke a condition of an accreditation or impose a new condition;
(e) to give a temporary accreditation;
(f) to renew or refuse to renew an accreditation;
(g) to consent or refuse to consent to the surrender of an accreditation;
(h) to exercise a power under section 20;
(i) to suspend an accreditation under section 22;
(j) to enter into or not to enter into a service contract with any person;
(k) not to renew a service contract;
(l) to vary, suspend or cancel a service contract;
(m) to prohibit a person from driving a vehicle.

(2) No compensation is payable to any person in respect of or as a consequence of, and no proceedings of any kind may be brought in respect of, the expiry by force of section 39(6) of a contract for the provision of transport services or requiring a person who holds a commercial passenger vehicle licence for every vehicle operated by that person for the purposes of a road transport passenger service to be accredited in accordance with Part 2 to operate that service.

37. Supreme Court—limitation of jurisdiction

It is the intention of this section to alter or vary section 85 of the Constitution Act 1975 to the extent necessary to prevent the Supreme Court awarding compensation in respect of or as a consequence of any decision referred to in section 36(1) or any matter referred to in section 36(2) or entertaining proceedings referred to in section 36(2).

3. The jurisdiction of the Supreme Court is set out in section 85 of the Constitution Act as follows–

85. Powers and jurisdiction of the Court

(1) Subject to this Act the Court shall have jurisdiction in or in relation to Victoria its dependencies and the areas adjacent thereto in all cases whatsoever and shall be the superior Court of Victoria with unlimited jurisdiction.

(3) The Court has and may exercise such jurisdiction (whether original or appellate) and such powers and authorities as it had immediately before the commencement of the Supreme Court Act 1986.

(4) This Act does not limit or affect the power of the Parliament to confer additional jurisdiction or powers on the Court.

(5) A provision of an Act, other than a provision which directly repeals or directly amends any part of this section, is not to be taken to repeal, alter or vary this section unless—

(a) the Act expressly refers to this section in, or in relation to, that provision and expressly, and not merely by implication, states an intention to repeal, alter or vary this section; and

(b) the member of the Parliament who introduces the Bill for the Act or, if the provision is inserted in the Act by another Act, the Bill for that other Act, or a person acting on his or her behalf, makes a statement to the Council or the Assembly, as the case requires, of the reasons for repealing, altering or varying this section; and

(c) the statement is so made—

(i) during the member's second reading speech; or

(ii) after not less than 24 hours' notice is given of the intention to make the statement but before the third reading of the Bill; or

(iii) with the leave of the Council or the Assembly, as the case requires, at any time before the third reading of the Bill.

(6) A provision of a Bill which excludes or restricts, or purports to exclude or restrict, judicial review by the Court of a decision of another court, tribunal, body or person is to be taken to repeal, alter or vary this section and to be of no effect unless the requirements of sub-section (5) are satisfied.

4. In accordance with section 85(5) of the Constitution Act above, the Minister for Public Transport stated in his second reading speech in relation to clauses 36 and 37–

5. In its Alert Digest No 6 of 1995, the Scrutiny of Acts and Regulations Committee (SARC) stated in relation the Minister's statements–

The Committee is of the view that no party should have the right to block the intention of the legislation to terminate the contracts but the legislation should enable the Supreme Courts to entertain claims for compensation. In the all circumstances the Committee is unable to say the clause 37 is appropriate and desirable. The Committee has written to the Minister.

6. The response of the then Minister, recorded in SARC's Alert Digest No 9 of 1995, was–

6.3 The Minister responded by way of letter dated 9 June 1995. The relevant extract is set out:-

Thank you for your letter of 22 May about the Public Transport Competition Bill. I have noted the matters raised by the Committee.

As you will be aware the Government has decided to defer the passage of the Public Transport Competition Bill until the Spring Sittings of Parliament. This will enable further consultation with interested parties to take place in addition to that which has occurred to date. It is also the Government's intention to consider the future operation of school buses in tandem with consideration of changes to route buses.

The Hon. Geoff Craige MLC, my Parliamentary Secretary will lead a team of Parliamentarians who will conduct regional forums to which both operators and local Members of Parliament will be invited. These forums will enable Government to explain the proposed reforms to operators and to seek their feed-back first hand.

The matters raised by the Committee and the views obtained from the regional forums will be considered before the debate on the Bill resumes in Spring.

7. The Committee recorded in its Third Annual Report, November 1996, at page 35–

• that "In the event, the Minister did not make any changes in respect of the section 85 provision."; and
• in the schedule to its report that the "C'tee is unable to say the Section 85 provision is appropriate and desirable in all the circumstances."

8. Clause 36 and 37 of the RCTA Bill provided that –

"(2) It is the intention of section 36(1A) to alter or vary section 85 of the Constitution Act 1975.".

9. Clause 35 of the Bill amended the Public Transport Competition Act 1995 to empower the Director of Public Transport to make some of the decisions that the Secretary could make under the Act. As a result of these amendments section 36 and 37 of the Public Transport Competition Act 1995 now provide that–

(1) No compensation is payable to any person in respect of or as a consequence of any decision of the Secretary under this Act—

(a) to give or refuse to give an accreditation in relation to any kind of road transport passenger service;
(b) to impose a condition on an accreditation;
(c) to vary the kind of road transport passenger service to which an accreditation relates;
(d) to vary or revoke a condition of an accreditation or impose a new condition;
(e) to give a temporary accreditation;
(f) to renew or refuse to renew an accreditation;
(g) to consent or refuse to consent to the surrender of an accreditation;
(h) to exercise a power under section 20;
(i) to suspend an accreditation under section 22;
(j) to enter into or not to enter into a service contract with any person;
(k) not to renew a service contract;
(l) to vary, suspend or cancel a service contract;
(m to prohibit a person from driving a vehicle.

(1A) No compensation is payable to any person in respect of or as a consequence of any decision of the Director under this Act—

(a) to enter into or not to enter into a service contract with any person;
(b) not to renew a service contract;
(c) to vary, suspend or cancel a service contract.

(2) No compensation is payable to any person in respect of or as a consequence of, and no proceedings of any kind may be brought in respect of, the expiry by force of section 39(6) of a contract for the provision of transport services or requiring a person who holds a commercial passenger vehicle licence for every vehicle operated by that person for the purposes of a road transport passenger service to be accredited in accordance with Part 2 to operate that service.

37. Supreme Court—limitation of jurisdiction

(1) It is the intention of this section to alter or vary section 85 of the Constitution Act 1975 to the extent necessary to prevent the Supreme Court awarding compensation in respect of or as a consequence of any decision referred to in section 36(1) or any matter referred to in section 36(2) or entertaining proceedings referred to in section 36(2).

(2) It is the intention of section 36(1A) to alter or vary section 85 of the Constitution Act 1975.

10. The then Minister for Transport, the Honourable Robin Cooper MP stated in his Second reading Speech (Hansard 6 May 1999) in relation to clauses 36 and 37 of the RCTA Bill –

The power of the secretary to enter into service contracts with bus operators under part 3 of the Public Transport Competition Act 1995 is extended to the Director of Public Transport. A consequential amendment is the statement contained in clause 37 of the bill, that it is the intention of section 36(1A) of the Public Transport Competition Act, proposed to be inserted by clause 36 of the bill, to alter or vary section 85 of the Constitution Act 1975. In the same way as the Public Transport Competition Act already limits the liability of the secretary with respect to the private bus contract arrangements under the act, this amendment extends the limitation of the Supreme Court jurisdiction to the Director of Public Transport when he exercises those contracting powers instead of the secretary. The limitation of jurisdiction provision covers the director if he makes a decision to enter or not to enter or renew a bus contract or decides to vary, suspend or cancel a bus contract. I wish to make a statement under section 85(5) of the Constitution Act of the reasons for altering or varying that section. Proposed new section 36(1A) of the Public Transport Competition Act is intended to alter or vary section 85 of the Constitution Act 1975 to the extent necessary to prevent the Supreme Court from awarding compensation in relation to an act described in that section. The proposed new section relates to actions taken by the Director of Public Transport in relation to bus contracts. It prevents claims for compensation when the director is acting in the course of his duties under the Public Transport Competition Act relating to bus contracts. The usual duration of bus contracts is 10 years, and the legislative protection in the act requiring lengthy notice to operators to vary, suspend or cancel contracts together with the process of contract negotiation, are more than adequate to protect the interests of bus companies and provide a fair mechanism for implementing necessary contractual change. Further, the provisions of new section 36(1A) as proposed to be inserted by clause 36 of the bill will ensure finality in the bus contract process so that continued service to the public can be assured.

11. As clauses 36 and 37 were consequential amendments to the amendments in the Bill which gave the Director to make many of the decisions of the Secretary in respect of which no compensation was payable under the Act as passed in 1995, the limitation of the Supreme Court's jurisdiction was justified essentially on a similar basis as that given in 1995.

Accident Compensation (Common Law and Benefits) Bill

18.1

The Committee notes that it has not yet received a response to its request of 2 May 2000 for further information from the Minister on this Bill. The Committee will write a further letter to seek an early response to its concerns.

 

National Parks (Amendment) Bill

19.1

The Committee notes that it has not yet received a response to its request of 23 May 2000 for further information from the Minister on this Bill. The Committee will write a further letter to seek an early response to its concerns.

 

Footnotes
1	A restrictive covenant is an agreement creating an obligation contained in a deed and one that forbids or restricts the commission of some act such as the use of certain premises for a stipulated purpose. A registered restrictive covenant is one that is registered or recorded in the Register under the Transfer of Land Act 1958 or registered under section 6 of the Property Law Act 1958 before 1 January 1999
2	Section 4D(b)(iii) provides that the Committee is to report to the Parliament where a provision in a Bill does not repeal, alter or vary section 85 of the Constitution Act 1975, but where an issue is raised as to the jurisdiction of the Supreme Court, as to the full implications of that issue.

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Last update 25/8/2000 ©Parliament of Victoria