Scrutiny of Acts and Regulations CommitteeAlert Digest No. 8 of 20003 October 2000Anglican Trusts Corporations (Amendment) Bill Children and Young Persons (Reciprocal Arrangements) Bill Electricity Industry Legislation (Miscellaneous Amendments) Bill Essential Services Legislation (Dispute Resolution) Bill Interpretation of Legislation (Amendment) Bill Land (St. Kilda Sea Baths) Bill Local Government (Restoration of Local Democracy to Melton) Bill Petroleum Products (Terminal Gate Pricing) Bill Plant Health and Plant Products (Amendment) Bill Project Development and Construction Management (Amendment) Bill Tattersall Consultations (Amendment) Bill Tertiary Education (Amendment) Bill Training and Further Education Acts (Amendment) Bill Water Industry (Amendment) Bill Whistleblowers Protection Bill Ministerial CorrespondenceAppendices1 – Index of Bills Reported 2000 2 – Committee Comments classified by Terms of Reference
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| The Committee notes that neither the Bill nor the Explanatory Memorandum give any information as to when section 21 of the Act will be proclaimed. Without such information it is not apparent to the Committee whether the provisions relating to legal representation of children introduced by the Bill, will be in force at the time the other provisions commence operation. Clause 7(4) provides that legal representation must be allowed in certain Schedule 2 matters, such as an application for an order transferring a child protection order or an application transferring a child protection proceeding. Schedule 2 will come into operation not later than by 1 July 2001, however as section 21(1) is not in force the legal representation contemplated by the addition of these matters to section 21(1) may not be operative. Given that legal representation for a child will be available under clause 6 of Schedule 2 for Administrative Transfers from the commencement of the provisions in the Bill, this would seem to the Committee to be an anomalous situation. The Committee considers that the Parliament should be provided with further information relevant to the important provisions concerning legal representation for children in legal proceedings concerning their welfare. The Committee will write to the Minister to seek clarification on this issue. |
Clause 4 inserts a new Division 10 in Part 3 of the Act relating to the transfer of child protection orders and proceedings. The new Division consists of a new section 126A which provides –
126A Schedule 2 sets out provisions relating to the transfer of child protection orders and proceedings between Victoria and another State or a Territory of Australia or between Victoria and New Zealand.
Clause 5 inserts Schedule 2.
Clause 1 sets out the purpose of the Schedule. Provides for the transfer of child protection orders and proceedings between Victoria and another State or a Territory of Australia or between Victoria and New Zealand so that children who are in need of protection may be protected despite moving from one jurisdiction to another; and so as to facilitate the timely and expeditious determination of court proceedings relating to the protection of a child.
Clause 2 provides for definitions in the Schedule and also provides that –
The Governor in Council, by Order published in the Government Gazette, may declare a law of a State (other than Victoria) to be a child welfare law for the purposes of this Schedule if satisfied that the law substantially corresponds to Part 3 of this Act.
The Governor in Council, by Order published in the Government Gazette, may declare a law of a State (other than Victoria) to be an interstate law for the purposes of this Schedule if satisfied that the law substantially corresponds to this Schedule.
The Governor in Council, by Order published in the Government Gazette, may declare an office or position in a State (other than Victoria) to be an office or position the holder of which is the interstate officer in relation to that State for the purposes of this Schedule.
An administrative transfer involves the Secretary to the Department of Human Services (the Secretary) transferring a child protection order interstate or to New Zealand. The Bill restricts when the Secretary can transfer the order, including a requirement that the Secretary in the receiving State must consent to the transfer of the order and there must be an equivalent order in the receiving State. Depending on the child protection order, the Secretary may not be able to transfer the order without the consent of a parent.
The Bill emphasises that the welfare and interests of the child must be given paramount consideration and that the child and his or her family must be encouraged to fully participate in the decision about the transfer of the child protection order, except to the extent that such involvement would be detrimental to the safety or well-being of the child.
The child may oppose such an order and is entitled to legal representation in relation to the application.
The Committee notes the comments in the Second Reading Speech –
The government has ensured that the Bill contains a simple method for a child to oppose an administrative decision to transfer a child protection order.
The Bill provides that if the secretary decides to administratively transfer the child protection order for a child of at least seven years of age, the child must be given notice of the decision and an outline of how to challenge it. The child must also have the opportunity to seek legal advice in relation to the proposed transfer of the order. The order cannot be administratively transferred if the child opposes the transfer.
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If the child opposed the administrative transfer of the child protection order, the Secretary to the Department of Human Services would need to decide whether it was appropriate to apply to the Children's Court for a judicial transfer of the child protection order. If the Secretary applied to the Children's Court, the court would decide whether it would be in the interests of the child to have the order transferred interstate.
A decision may be reviewed on its merits by the Victorian Civil and Administrative Tribunal (VCAT) or on certain grounds by the Supreme Court, within 28 days of the decision or such later day on which reasons are given or refused to be given by the VCAT. Neither VCAT or the Supreme Court may extend time limit for such a review.
The secretary may apply to the Children’s Court (the court) for a judicial transfer of a child protection order. The secretary could make such an application if he or she is unable to transfer the order administratively, or the secretary wanted to obtain an order in the receiving state which is not similar to the current order; or the secretary otherwise believed it would be more appropriate to apply to the Children's Court.
The court would determine what the order would become in the receiving state. If it is in the interests of the child, the order could be different to the order that exists at the time of the application to transfer.
The court may make an order which is different to the order that exists at the time of the transfer application in various situations. First, there may be an appropriate order in the receiving State which is not available in the sending State. Second, transferring the order interstate may mean that a different type of order is more appropriate to the proposed circumstances of the child and family in the receiving State. And third, circumstances may have changed since the original order was made and the transferred order should be a different type of order to reflect these changes.
A party may appeal, within 10 days, to the Supreme Court on a question of law from a final order made in the proceedings transferring or refusing to transfer a child protection order to a participating State. The Supreme Court may not extend time in which to appeal. Pending the hearing of an appeal, the Supreme Court may make interim orders.
The amendment made by clause 7(4) to section 21 of the Act will ensure that in judicial transfer proceedings a child is required to be legally represented. [Refer to Committee comments above.]
The Bill also provides that the secretary may apply to the court seeking the transfer of a child protection proceedings. If the court transferred a child protection proceeding, the court could grant an interim order which determines the powers and responsibilities of the parties on an interim basis. Where the interstate officer has consented to the transfer, the proceedings is then discontinued in the Victorian Children’s Court.
A party may appeal to the Supreme Court, on a question of law, from a final order transferring, or refusing to transfer a child protection proceeding. An appeal must be instituted within 3 working days after the day on which the order complained of was made. The Supreme Court may make an order staying any interim order that was made or may vary or revoke or extend the period of the interim order and may make any interim accommodation order pending the appeal. The notice of appeal operates as a stay of the transfer order. The Supreme Court cannot extend the time limit fixed for the commencement of such an appeal.
Part 4 deals with the registration and filing of interstate documents.
The Secretary may consent or refuse to consent to the transfer and the proposed terms of the child protection order to be transferred and the Secretary may consent or refuse to consent to the transfer of a child protection proceedings.
Clause 6 inserts a new section 63A into the Act to clarify that a child can be in need of protection where the conduct occurred wholly or partly outside Victoria. Section 63 currently listed the circumstances in which a child is in need of protection. New section 63A will provide –
For the purposes of this Act it does not matter whether the conduct constituting a ground referred to in section 63 occurred wholly or partly outside Victoria.
Clause 7 makes a number on consequential orders including the amendments to section 21 made by clause 7(4) concerning legal representation for matters provided by the new Schedule 2.
Clause 7(6) inserts a new section 264(4) clarifying that it is an offence to counsel or induce a child to be absent without lawful authority (for example from the place of an interim accommodation order or custody order) whether the conduct is carried out wholly or partially outside Victoria. It also provides that a person must not withdraw a child from the place in which the child has been placed under an order made under Schedule 2.
Clause 7(6) provides a protection against double jeopardy by inserting a new section 264(4) in the following terms –
264(4) If conduct constitutes an offence under two or more laws, a person who is convicted or found guilty or acquitted of the offence under a law referred to in paragraph (b) or (c) of sub-section (5) is not liable to be prosecuted for the offence under this section.
‘law’ in section 264(4) means ‘a law of another State or a Territory of Australia or a law of New Zealand.’
Clause 8 inserts a new clause 5A into Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 providing that the Tribunal cannot extend time limits in relation to a decision under Schedule 2 of the Act.
Clause 7 inserts a new section 279A(5) into the Act declaring that –
It is the intention of clauses 7, 13 and 18 of Schedule 2 to alter or vary section 85 of the Constitution Act 1975.
Clauses 7, 13 and 18 of Schedule 2 provide limitations periods for appeals to the Supreme Court from Administrative Transfers, Judicial Transfers and Transfers of Child Protection proceedings respectively. Each clause also provides that the Supreme Court may not extend the time limit in which an appeal may be instituted. The respective time limits being; 28 days after the decision of the Secretary; 10 days after the order complained of is made; and 3 days after the order complained of is made.
The Committee notes the comments in the Second Reading Speech –
Clause 7(7) of the Bill inserts a new section 279A(5) in the Children and Young Persons Act 1989. Section 279A(5) provides that it is the intention of clauses 7, 13 and 18 of Schedule 2 to the Children and Young Persons Act 1989 to alter or vary section 85 of the Constitution Act 1975.
The Bill inserts clause 7 into Schedule 2 to the Children and Young Persons Act 1989. Clause 7 limits the time during which a person can seek judicial review of a decision of the Secretary to transfer a child protection order under Schedule 2.
The Bill also inserts clauses 13 and 18 into Schedule 2 to the Children and Young Persons Act 1989. Clauses 13 and 18 limit the time during which a person can appeal to the Supreme Court from a decision of the Children's Court regarding the transfer of either a child protection order or proceeding.
These clauses reflect the view that there would be significant problems if an order or proceeding could be registered in the receiving state and then subject to an appeal in the sending state. If this occurred, there could be confusion regarding which court has jurisdiction in the case; confusion regarding the responsibilities of the respective departments; and instability for the child and the carers of the child.
The Bill addresses this concern in two ways.
First, the Bill provides that a child protection order or proceeding cannot be transferred interstate whilst a person could appeal against the transfer of the child protection order or proceeding.
Second, the Bill limits the time during which an appeal can be initiated against the transfer of a child protection order or proceeding. The appeal period is shorter for transfers of child protection proceedings because it is essential that transfers of child protection proceedings are expeditiously dealt with by the courts.
| The Committee is of the view that the proposed section 85 provision is appropriate and desirable in all the circumstances. |
The Committee makes no further comment.
Introduced: 6 September 2000
Second Reading Speech: 7 September 2000
House: Legislative Assembly
Minister: Hon. J. Brumby MLA with the Hon. L. Kosky MLA.
Purpose
The Bill provides for the regulation of the supply of the electricity industry in Victoria and substantially re-enacts the regulatory provisions of the Electricity Industry Act 1993.
Content and Committee comment
Clause 2 provides the commencement provisions. Sections 1 and 2 come into operation on the day after Royal Assent. Section 19(5) comes into operation on a day to be proclaimed. Section 83 comes into operation on a day to be proclaimed but not later than by 31 December 2001.
the remaining provisions of this Act come into operation on 1 January 2001.
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The Committee notes the comments in the Explanatory Memorandum that section 19(5) relates to the Snowy Hydro Company and as such cannot come into operation until the Snowy Hydro Corporatisation Act 1997 comes into force. The Committee noted the reasons for the commencement by proclamation clause in that Act in Alert Digest No.7 of 1997. The Committee accepts the necessity to utilise a commencement by proclamation provision in these circumstances. |
Clause 5 the Act has extra-territorial operation.
Clause 6 provides that the Act must be read and construed as one with the Electricity Industry (Residual Provisions) Act 1993 which is the new title for the Electricity Act 1993 (as re-named by the Electricity Legislation (Miscellaneous Amendment) Act 2000 - also covered by this report).
Clause 7 deals with the application of the Act to certain distribution, transmission and generation companies and provides –
(1) The Governor in Council, by Order published in the Government Gazette, may declare that a reference in specified provisions in Part 5 of this Act or specified provisions in another Act to a distribution company, transmission company or generation company does not include a reference to a specified distribution company, transmission company or generation company.
(2) A copy of an Order under sub-section (1) must be laid before each House of the Parliament on or before the sixth sitting day after it is made.
An Order under sub-section (1) is subject to disallowance by a House of the Parliament, and section 23 of the Subordinate Legislation Act 1994 applies as if the Order were a statutory rule. [Part 5 of the Act deals with powers of electricity corporations]
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The Committee notes that there is no commentary in the Explanatory Memorandum for the purpose and effect of clause 7 of the Bill. The Committee will write to the Minister to ensure that Parliament is advised accordingly. |
Part 2 – Regulation of Electricity Industry
The Part consists of clauses 8 to 49.
Clause 9 provides that the electricity industry is a regulated industry for the purposes of the Office of the Regulator-General Act 1994.
Clause 11 is a conferral of power on the Commonwealth and the Australian Competition and Consumer Commission (ACCC) by the Minister in relation to transmission pricing functions and powers that are otherwise exercised by the Office of the Regulator-General (ORG). The Minister may agree to confer certain powers on the ACCC. Such agreements are to be published in the Government Gazette.
Clause 12 provides that power is conferred on ORG to regulate prices in respect of prescribed goods and services and in respect of tariffs for sale of electricity.
Clauses 13 to 15 deal with the making, amendment and revocation of tariff orders by order of the Governor in Council published in the Government Gazette. Any order made expires on 31 December 2003.
Clauses 16 to 33 deal with licences to generate, supply, sell and transmit electricity.
Clause 16 provides that a person must not engage in the generation of electricity for supply or sale or the transmission, distribution, supply or sale of electricity unless the person is the holder of a licence authorising the relevant activity; or is exempted from the requirement to obtain a licence in respect of the relevant activity.
Clause 17 provides that the Governor in Council may by Order in Council published in the Government Gazette exempt a person from the requirement to obtain a licence in respect of the activity specified in the Order in Council.
Clause 28 requires that there be a customer dispute resolution scheme approved by the Office.
Clause 34 provides for the mechanism for appointment by ORG of an administrator in respect of a licensed activity if the contravention by a licensee of licensed conditions threatens the security of electricity supply.
Part 3 – Separation of Generation Transmission and Distribution sectors
Clause 68 sets out the definition of prohibited interests and provides that a person must not hold a prohibited interest. Clause 69 empowers the ORG to grant one temporary exemption of up to 6 months to allow a person to divest themselves of a prohibited interest. Clause 70 in order to determine whether a person has a prohibited interest the ORG may require persons to furnish information relating to certain interests in shares or holdings. Clause 71 if ORG determines that a person has a prohibited interest ORG may require that person to dispose of that interest. If the interest is not disposed of they may be forfeited to the State. A transaction that causes a person to have a prohibited interest is illegal and void. Clause 73 provides that ORG may terminate a persons licence if that person fails to comply with a determination of ORG relating to the persons prohibited interests.
Clause 74 provides that ORG may annul and declare null and void certain resolutions of a licensee where such a resolution was passed as a result of the admission of votes that should not, by virtue of a declaration of ORG have been admitted.
Clause 76 provides that an appeal lies to the Supreme Court against a determination of ORG.
Clause 77 provides that ORG must sell any shares forfeited to the State. Any money realised from such a sale are to be paid to the person from whom the shares were forfeited.
Part 4
The Part deals with the powers of the Victorian Energy Networks Corporation (VENCorp) in relation to the electricity industry and also provides the specific functions VENCorp is to perform with respect to management of electricity supply insufficiencies.
Load Shedding in situations of emergency supply shortage
Clause 80 VENCorp may enter into agreements with the holders of licences to distribute and supply or sell electricity to determine the arrangements to apply in respect of customer load shedding in circumstances where the available supply of electricity is, or is likely to become, less than is sufficient for the reasonable requirements of the community.
If VENCorp is unable to reach agreement with a licensee about load shedding arrangements within 6 months after VENCorp offers to enter into an agreement with the licensee for that purpose, the Minister may determine those arrangements.
Clause 81 if it appears to VENCorp at any time that the available supply of electricity is, or is likely to become, less than is sufficient for the reasonable requirements of the community, VENCorp may give directions to a licensee to shed customer load and may give directions to any person that are incidental to or consequential on a direction to a licensee. Such directions may require a licensee to shed customer load.
81(2)(e) provides that a direction has effect as if enacted in the Act.
Such a direction must be published in the Government Gazette as soon as possible after it is made and VENCorp may at any time by direction amend or revoke a direction made, or purportedly made.
81(5) provides that if a direction of VENCorp under sub-section (4) amending an earlier direction for the purpose of correcting a defect, mistake or omission includes the statement that the earlier direction is deemed to have been made as so amended; and is made not later than 3 months after the earlier direction was made the earlier direction is deemed to have been made as so amended.
81(6) the amendment, revocation or expiry of a direction does not affect the previous operation of the direction; or the validity of any action taken under the direction before the amendment, revocation or expiry; or any penalty or punishment incurred in respect of any failure to comply with the direction before the amendment, revocation or expiry or any proceeding or remedy in respect of the penalty or punishment.
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The Committee notes that clause 81(2)(e) and 96(3)(e) purport to allow directions to have a legislative character without Parliamentary scrutiny and without their being subject to disallowance by the Parliament. Further the Committee notes that by clause 82 it is an offence to fail to comply with a direction. The Committee is concerned that such directions may be regarded as legislative in character and as such may be in breach of section 4D(a)(v) of the Parliamentary Committees Act 1968 as representing a provision that insufficiently subjects the exercise of legislative power to parliamentary scrutiny. The Committee will write to the Minister to seek further clarification as to the intended operation of this section in view of section 4D(a)(v). |
Clause 82 deals with offences in relation to load shedding and provides –
(1) A person or body who is aware of a direction under section 81 must comply with the direction.
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(4) A person is deemed to be aware of a direction if VENCorp has caused--
(a) the direction to be published in a newspaper circulating throughout the area in which the direction applies; or
(b) details of the direction to be broadcast by means of radio or television transmission throughout the area in which the direction applies.
(6) In any proceedings for an offence against this section, if a direction was made in respect of part of a day and first broadcast on that day, it is sufficient defence for the defendant to prove that at the time of the commission of the offence, the defendant--
(a) did not know; and
(b) could not reasonably have known--
of the direction.
Penalty: in the case of a natural person, 10 penalty units; in the case of a body corporate, 240 penalty units.
The Committee notes the strict liability offence established by the deeming provisions of clause 82(4) once matters in clause 82(5) in respect to a certificate of broadcasting are established by the prosecution. The Committee further notes the reverse onus of proof provision providing a defence to this strict liability offence. Given the respective problems of proof for prosecution and defense respectively in proving relevant facts in issue, the Committee accepts the necessity for a strict liability offence and the reverse onus of proof for this offence. The Committee draws the provision to the Parliament’s attention. |
Immunity from suit
Clause 84 provides that –
A person acting in good faith in the execution of section 81 or any direction under that section is not liable to any action, claim or demand on account of any damage, loss or injury sustained or alleged to be sustained because of the operation of that section or of anything done or purporting to be done under that section or any direction under that section.
[Refer to section 85 Constitution Act 1975 statement.]
Part 5 – Powers of Electricity Corporations.
The Part deals with the powers of electricity corporations and provides for matters such as the compulsory acquisition (with the approval of the Governor in Council) of easements1 for power lines, land in the Latrobe area, the use of easements for telecommunications, authority for electricity corporations to enter on to land and do such things that are necessary for the purposes of the electricity supply. The provisions in this Part are all found in the same terms as in the Electricity Industry Act 1993.
Part 6 – Electricity Supply Emergency Provisions
Part 6 confers broad powers of direction on the Minister in circumstances where the Governor in Council declares by proclamation that the emergency powers provisions in Part 6 apply.
Clause 95 provides that if it appears to the Governor in Council that an event has occurred, or is about to occur, which may endanger an undertaking of a distribution company, a transmission company or a generation company or a person who supplies electricity to another person or materially affect the safe, economical or effective supply of electricity; or the available supply of electricity is, or is likely to become, less than is sufficient for the reasonable requirements of the community he may by proclamation declare that this Part is to apply. The proclamation must be published in the Government Gazette.
Clause 96 provides for the powers of the Minister while a proclamation is in force he may give any directions that the Minister thinks necessary to protect any undertaking of a distribution company, a transmission company or a generation company or a person who supplies electricity to another person; or ensure the safe, economical or effective supply of electricity; or ensure that the available electricity is fairly distributed to the community; or increase the available supply of electricity; or regulate the use of the available supply of electricity, having regard to the needs of the community.
Requisition of property
96(2)(d) amongst other things the Minister may requisition the use of property of any kind which is used, or may be used, for or in connection with the generation, supply or distribution of electricity; operate, use, dispose of, distribute, store, repair and maintain any such property; authorise a person specified in the notice to enter any land, building or structure used for or in connection with the provision of electricity; authorise a person specified in the notice to withdraw the supply of electricity from any consumer the person reasonably believes is in breach of any direction, provide, by direction, for any matter or thing incidental to the carrying into effect of the powers referred to in this section.
A direction must be published in the Government Gazette as soon as possible after it is made.
Clause 96(3)(e) provides that a direction has effect as if enacted in this Act.
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The Committee draws attention to this provision in the same terms as to clause 81(2)(e) above. |
If a direction of the Minister amending an earlier direction for the purpose of correcting a defect, mistake or omission includes the statement that the earlier direction is deemed to have been made as so amended; and is made not later than 3 months after the earlier direction was made the earlier direction is deemed to have been made as so amended.
Compensation
96(8) if the Minister requisitions the use of property the reasonable costs of compensating the owner of that property for the requisition and making good any damage resulting from the requisition must be determined by the Minister. If there is a dispute as to the Minister's determination, the Minister must refer the matter for arbitration by a single arbitrator under the Commercial Arbitration Act 1984. Requisitioned property that has not been disposed of must be returned as soon as it is safe to do so after the Governor in Council revokes a proclamation.
Offences
Clause 97 (1) deals with offences where a person is aware of a direction and does not comply with it. There is a general duty to do everything reasonably possible to ensure that electricity is not used on land or premises to which the electricity is supplied in contravention of a direction.
Deemed awareness
97(4) a person is deemed to be aware of a direction if the Minister has caused the direction to be published in a newspaper circulating throughout the area in which the direction applies; or details of the direction to be broadcast by means of radio or television transmission throughout the area in which the direction applies.
Defence to deemed awareness
97(6) provides –
In any proceedings for an offence against this section, if a direction was made in respect of part of a day and first broadcast on that day, it is sufficient defence for the defendant to prove that at the time of the commission of the offence, the defendant--
did not know; and (b) could not reasonably have known of the direction.
Penalties: 100 penalty units and in the case of a body corporate, 10,000 penalty units.
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The Committee notes the deemed awareness provisions in clause 97 and that they create a form of strict liability offence. The Committee notes the defence provided in clause 97(6). Given the respective problems of proof between prosecution and defence and the public policy purposes of these emergency provisions, the Committee does not consider they constitute an undue trespass to rights and freedoms in the terms of section 4D(a) of the Parliamentary Committees Act 1968. The Committee refers the provision for Parliament’s consideration. |
Clause 99 provides an immunity from suit in the following terms –
A person acting in good faith in the execution of this Part or any proclamation or direction under this Part is not liable to any action, claim or demand on account of any damage, loss or injury sustained or alleged to be sustained because of the operation of this Part or of any thing done or purporting to be done under this Part or any proclamation or direction under this Part.
[Refer to section 85 Constitution Act 1975 statement and report below]
Clauses 100 to 105 provide for standard enforcement powers found in many recent Victorian statutes.
Power of entry
Clause 100 deals with powers of entry. If an enforcement officer has reasonable grounds for suspecting that there is on any land or premises a particular thing that may be evidence of the commission of an offence against this Part, the enforcement officer may enter the land or premises; and search for the thing.
An enforcement officer must not enter land or premises under this section except with the written consent of the occupier of the land or premises; or under the authority of a search warrant.
Search warrants
Clause 102 provide for standard search warrant provisions. A search warrant must be issued in accordance with the Magistrates' Court Act 1989.
Announcement before entry
Clause 103 provides that before executing a search warrant, the enforcement officer named in the warrant must announce that he or she is authorised by the warrant to enter the land or premises; and give any person at the land or premises an opportunity to allow entry.
Emergency entry
The enforcement officer executing the warrant need not comply with the announcement provision if reasonable grounds exist to believe that immediate entry to the land or premises is required to ensure the safety of any person; or that the effective execution of the warrant is not frustrated.
Clauses 106 to 115 provides standard infringement notice provisions for penalties for a prescribed offence being a contravention of section 96 (breach of electricity emergency directions). Clause 106 provides that a ‘prescribed offence’ means an offence against section 97(7) constituted by the use of electricity by a person in contravention of a direction under section 96 of which the person is aware or is deemed under section 97 to be aware.
If the person pays the infringement penalty no conviction is to be taken to have been recorded against that person for that offence. The payment of an infringement penalty is not and must not be taken to be an admission of guilt in relation to the offence; or an admission of liability for the purpose of any civil claim or proceeding arising out of the same occurrence and the payment does not in any way affect or prejudice any such claim or proceeding.
The payment of an infringement penalty must not be referred to in any report provided to a court for the purpose of determining sentence for an offence.
Delegation power
Clause 116 provides the delegation provision in the following form –
The Minister may, by instrument, delegate to any person any function or power of the Minister under this Act, other than this power of delegation.
The Committee notes the wide power of delegation provision (other than the power of sub-delegation) and notes that it is in the same form as in the 1993 legislation. The Committee notes that in it’s scrutiny of the 1993 Act it expressed concern at the wide delegation power and then noted that that section (section 85 in the Electricity Industry Act 1993) may make rights, freedoms or obligations dependent upon insufficiently defined administrative powers. The Committee would prefer a delegation provision that was limited to a class or category of person possessing some objectively ascertainable qualification or attribute. The Committee will write to the Minister to refer the Committee’s concerns in respect to the re-enactment of this provision to the Minister for comment. |
Clause 117 limits liability for failure to supply electricity in essentially the same terms as under the previous Act. The clause provides that VENCorp, a distribution company, a transmission company or a retailer is not liable to any penalty or damages for not supplying electricity under any contract if the failure arises through accident, drought or unavoidable cause or for liability to any person for any partial or total failure to supply electricity arising through any cause that is not due to the fault of the corporation or the company.
Regulations
Clause 119 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 and the regulations are subject to disallowance by a House of the Parliament.
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The Committee accepts that the regulation making power is appropriate to give effect to the purposes of the legislation. |
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 118 deals with a limitation of the Supreme Court’s jurisdiction and declares that it is the intention of sections 84 and 99 to alter or vary section 85 of the Constitution Act 1975.
Sections 84 and 99 are immunity from suit provisions (see above) in Part 4 and 6 of the Act.
The Committee notes the Ministers section 85 Constitution Act 1975 statement –
Clause 118 of the bill states that it is the intention of sections 84 and 99 to alter or vary section 85 of the Constitution Act 1975.
Section 84 provides an immunity from suit for any person acting in good faith in the execution of section 81 of the bill or any direction under that section. Section 81 deals with situations where there is insufficiency of supply of electricity.
Section 99 provides an immunity from suit for any person acting in the execution of Part 6 or any proclamation or direction under that part. Part 6 deals with electricity supply emergencies.
The reason for limiting the jurisdiction of the Supreme Court with respect to these two sections is to give persons who act in the execution of section 81, or any direction under that section, or Part 6, or any proclamation or direction under that part, a degree of confidence that they can act without fear of litigation. This is necessary to ensure that in times of actual or anticipated emergency decisions are taken and acted on immediately and in the interests of and to the benefit of Victoria and Victorians as a whole.
The Committee is of the view that the proposed section 85 provisions are appropriate and desirable in all the circumstances. |
The Committee makes no further comment.
Introduced: 6 September 2000
Second Reading Speech: 7 September 2000
House: Legislative Assembly
Minister: Hon. J. Brumby MLA with the Hon. L. Kosky MLA.
Purpose
The main purposes of the Bill are to –
amend the Electricity Industry Act 1993 and renames that Act as a consequence of the Electricity Industry Act 2000; and
amend the Electricity Safety Act 1998 to improve the operation of that Act; and
make minor and consequential amendments to the Gas Industry Act 1994, the Office of the Regulator-General Act 1994 and the State Electricity Commission Act 1958 and other Acts.
The Committee notes the comments in the Second Reading Speech –
There are two Bills now before the house. They are the Electricity Industry Act 2000 and the Electricity Industry Legislation (Miscellaneous Amendments) Act 2000. The two Bills represent conjoint or cognate legislation. The existing Electricity Industry Act 1993 is to be renamed by these Bills as the Electricity Industry (Residual Provisions) Act 1993.
As part of its review of the legislative framework that governs the electricity industry and which was inherited from the previous government, this government has determined that it is appropriate to separate out into a new act the regulatory provisions required for the ongoing regulation of the electricity industry. Left behind in the Electricity Industry Act 1993 (which, as I said before, will be renamed as the Electricity Industry (Residual Provisions) Act 1993) will be the provisions which were, for the most part, used by the previous government to restructure the electricity industry in Victoria.
Content and Committee comment
Clause 2 deals with the commencement provisions –
sections 1, 2 and 13 come into operation on Royal Assent.
section 16 is deemed to have come into operation on 14 December 1995.
section 17 is deemed to have come into operation on 22 March 1994.
the remaining provisions of this Act come into operation on 1 January 2001.
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The Committee notes that sections 16 and 17 are retrospective provisions relating to the preservation of certain National Electricity easements. From the notes in the explanatory memorandum it appears that the provisions are needed to clarify the retention of these easements notwithstanding the extinguishment of a number of titles on 14 December 1995 and the transfer of land on 22 March 1994. When these events occurred there was no express savings of the respective easements as would normally have been necessary. The retrospective provisions remove any doubt that the easements were not intended to be extinguished. The Committee accepts that in these circumstances the retrospective provisions are acceptable. |
Part 2 – Amendments to the Electricity Industry Act 1993
Clause 3 amends the title of the Electricity Industry Act 1993 to the Electricity Industry (Residual Provisions) Act 1993.
The Part consists of clauses 3 to 20 and principally are transitional and consequential amendments. The amendments mostly involve either repeal of regulatory provisions that are henceforth to be contained in the Electricity Industry Act 2000 or the amendment of references in various other acts so that either 'Electricity Industry Act 2000' or 'Electricity Industry (Residual Provisions) Act 1993' is substituted for 'Electricity Industry Act 1993'.
Clause 20 introduces a new schedule 4 into the Electricity Industry Act 1993 which contains savings and transitional provisions. The Schedule includes a table of re-enacted provisions which enables a comparison between the former provision of the Electricity Industry Act 1993 and its successor provision in the Electricity Industry Act 2000.
Part 3 – Electricity Safety Act 1998
The Part amends the Electricity Safety Act 1998 mainly substituting Act or section references.
Part 4 – Gas Industry Act 1994
Makes Act reference amendments and clarify who may be directors of VENCorp.
Part 5 – Office of the Regulator-General Act 1994
Amends the Office of the Regulator-General Act 1994 inserting a new definition for ‘Tariff’ and substitutes Act references.
Part 6 - State Electricity Commission Act 1958
Substitutes Act references and repeals a provision related to an easement.
Part 7 – Amendments to other Acts
Substitutes Act references in a number of Acts and repeals a number of spent provisions in Acts as a consequence of the enactment of this Bill and the related Electricity Industry Bill.
The Committee makes no further comment.
Introduced: 5 September 2000
Second Reading Speech: 6 September 2000
House: Legislative Council
Minister: Hon. C. Broad MLC.
Purpose
The purpose of the Bill is to amend the Electricity Industry Act 1993, the Gas Industry Act 1994, the Water Industry Act 1994, the Water Act 1989 and the Melbourne Water Corporation Act 1992 to provide for customer dispute resolution.
The Committee notes the comments in the Second Reading Speech –
The purpose of this Bill is to enable the establishment of an Essential Services Ombudsman. The Essential Services Ombudsman will provide a customer dispute-handling mechanism for utility industries that is independent, fair and cost effective.
This Bill fulfils a key government election commitment to establish an independent ombudsman to handle customer complaints and make rulings in relation to compensation in the utility industries. It represents an important part of the government's overall strategy to ensure that the introduction of competition and commercial provision into the delivery of these services is balanced by appropriate protections for customers. Utility services such as electricity, gas, water and sewerage are fundamental to the daily lives of all Victorians. The creation of the ESO complements other government initiatives including its customer protection framework for full retail competition in electricity and its proposal to establish an Essential Services Commission which will regulate the utility industries to ensure that they operate in the interests of consumers and society at large.
…
electricity, gas, and water customers can go to a 'one-stop shop' for dispute resolution, at no cost to themselves; the scheme is funded by the utility suppliers rather than the taxpayer, and provides a strong incentive for them to resolve any complaints speedily.
…
The Bill will therefore impose the requirement on relevant electricity, gas, and water businesses to be members of such a dispute resolution scheme as a matter of law.
The government also believes the ongoing effectiveness of the scheme should be subject to independent oversight to ensure that it continues to provide customers with an independent, effective and low cost dispute-resolution process. To this end, the government will retain -- and indeed strengthen -- the role of the independent Regulator-General in overseeing the scheme. The Bill provides that the Regulator-General certify that the scheme is operating in accordance with a number of specific criteria, including:
the scheme is accessible and there are no cost barriers to consumers for its use;
the scheme is independent from its members;
the scheme's decisions are fair and seen to be fair;
the scheme is accountable, by ensuring the publication of its decisions and information about complaints received; and
the scheme is operationally efficient and effective, by ensuring that the scheme undertakes regular reviews of its performance.
Content and Committee comment
Clause 2 the provisions in the Bill commence on proclamation but not later than by 1 July 2001.
Part 2
Clause 3 provides for the amendment of the Electricity Industry Act 1993 to require that the licences issued to the electricity retail and distribution businesses include an obligation to be members of a customer dispute resolution scheme approved by the Office of the Regulator-General, in accordance with specified criteria.
Part 3
Clause 4 provides for a parallel amendment to the Gas Industry Act 1994 in respect of the gas retail and distribution businesses.
Part 4
Clause 5 provides for amendment of the Water Industry Act 1994 to require that the licensees (the three metropolitan water retail businesses: South East Water, City West Water, and Yarra Valley Water) enter into a customer dispute-resolution scheme approved by the Office of the Regulator-General with regard to the specified criteria.
Part 5
Clause 6 provides for amendment of the Water Act 1989 to require that the 15 non-metropolitan and 3 rural water authorities (which do not operate under a licensing regime) enter into a dispute-resolution scheme approved by the Office of the Regulator-General in accordance with specified criteria.
Part 6
Clause 7 provides for amendment of the Melbourne Water Corporation Act 1992 to require the Melbourne Water Corporation to enter into a dispute-resolution scheme approved by the Regulator-General, in accordance with specified criteria.
The Committee makes no further comment.
Introduced: 17 August 2000
Second Reading Speech: 29 August 2000
House: Legislative Assembly
Minister: Hon. R. Hulls MLA with the Hon. L. Kosky MLA.
Purpose
The purpose of the Bill is to amend the Interpretation of Legislation Act 1984 (the Act) to –
enable Acts and subordinate instruments to be divided into Chapters;
enable subordinate instruments to incorporate by reference provisions of Commonwealth Acts or Commonwealth statutory rules without being tabled in the Parliament;
make headings to sections and certain other provisions in, or inserted by, a post-1 January 2001 Act or subordinate instrument form part of the Act or subordinate instrument;
clarify the status of examples, punctuation and other material printed in or with an Act or subordinate instrument;
provide definitions of certain expressions for the purposes of all Acts and subordinate instruments;
facilitate references to Australian Standards in Acts and subordinate instruments.
Content and Committee Comment
Clause 2 the provisions in the Bill come into operation on 1 January 2001.
Clause 4 amends sections 19 and 20 to allow Acts to be grouped by Chapters. This will enable a higher level of organisation in large and diverse Acts. Currently Acts are organised by Part, Division and Section.
Clause 5 amends section 32 of the Act to allow subordinate instruments (statutory rules and other like instruments) to incorporate Commonwealth Acts and statutory rules without the need to table the relevant Commonwealth Act or statutory rules in the Parliament.
The Committee notes the following passage from the Second Reading Speech –
Section 32 of the principal Act requires Commonwealth Acts or statutory rules incorporated in Victorian subordinate instruments to be tabled in both Houses of Parliament. This requirement is designed to ensure that any Commonwealth Acts or statutory rules incorporated into Victorian law are available for all to see. However, given the widespread availability of Commonwealth Acts and statutory rules in both paper and electronic forms, their tabling in Parliament when they are incorporated into Victorian subordinate instruments is considered redundant.
In respect to the ‘widespread availability of Commonwealth statutory rules’ the relevant Commonwealth provision is to be found in section 5 of the Statutory Rules Publication Act 1903 (Cth) –
5.(1) All statutory rules shall forthwith after they are made be sent to the Government Printer, and shall, in manner prescribed, be numbered, and (save as prescribed) printed and sold by him.
(3) Where any statutory rules are required by any Act to be published or notified in the Gazette, a notice in the Gazette of the rules having been made, and of the place or places where copies of them can be purchased, shall be sufficient compliance with that requirement.
(3A) Where a notice of statutory rules having been made is published in accordance with subsection (3), copies of the statutory rules shall, at the time of publication of the notice or as soon as practicable thereafter, be made available for purchase at the place, or at each of the places, specified in the notice.
| The Committee notes that the amendment will allow Victorian subordinate instruments to incorporate Commonwealth Acts or statutory rules without the need to table those Commonwealth Acts or statutory rules in the Parliament. The Committee notes the reasons in the Second Reading Speech why tabling Commonwealth Acts and statutory rules is considered redundant. The Committee considers that the question whether the incorporation by reference of Commonwealth Acts and statutory rules in Victorian subordinate instruments without the necessity of tabling is sufficient Parliamentary scrutiny is a matter for the Parliament to note and consider. However, the Committee notes that the Regulation Review Subcommittee will have access to Commonwealth incorporated Acts and statutory rules and retains the power to report to the Parliament and to recommend disallowance in appropriate circumstances. |
Clause 6 amends sections 33 and 34 to allow subordinate instruments to be grouped into Chapters. As with clause 4 this will allow diverse and large subordinate instruments to be organised at an additional level above Parts and divisions.
Clause 7 amends section 36 of the Act and deals with the status of headings, notes, punctuation, indexes as used in Acts and subordinate instruments. The amendments apply only to Acts and subordinate instruments made after 1 January 2001.
Sub-clause (4) amends section 36(3) of the act and makes it plain that endnotes do not form part of an Act or subordinate instrument.
Sub-clause (5) inserts new sections 36(3A) to (3E) to provide that examples, diagrams or notes and punctuation inserted in any Act or subordinate instrument after 1 January 2001 forms part of the Act or subordinate instrument. (3D) and (3E) provide that explanatory memoranda and indexes (printed after the endnotes) do not form part of an Act or subordinate instrument.
Clause 8 inserts a new section 36 dealing with examples provided at the foot of provisions in an Act or subordinate instrument. Examples are not exhaustive; and may extend, but not limit, the meaning of a provision. The amendment applies only to an Act or subordinate instrument if, (a) the Act is passed, or the subordinate instrument is made, on or after 1 January 2001; or (b) the example is inserted into an Act passed, or subordinate instrument made, before 1 January 2001 by an Act passed, or subordinate instrument made, on or after that date.
The Committee makes no further comment.
Introduced: 30 August 2000
Second Reading Speech: 31 August 2000
House: Legislative Assembly
Minister: Hon. S. Garbutt MLA with the Hon. B. Pike MLA.
Purpose
The main purpose of this Act is to provide for a power to lease land for the purposes of a car park at St. Kilda.
Content and Committee Comment
Clause 2 the Act comes into operation on the day after Royal Assent.
Clause 5 deals with the powers to lease the car park land for a term not to exceed 45 years provided that the Committee of Management has obtained the prior written approval of the relevant Minister.
The Committee makes no further comment.
Introduced: 5 September
2000
Second Reading Speech: 6 September 2000
House: Legislative Council
Minister: Hon. C. Board MLC.
Purpose
The Bill amends the Local Government Act 1989 (the Act) to provide for the holding of a general election of councillors for the Melton Shire Council on 13 October 2001. Subsequent elections will be held triennially. The term of this Council will thus be two and a half years.
Content and Committee comment
Clause 2 the provisions in the Bill, other than sections 5, 6 and 7, come into operation on the day after Royal Assent. Sections 5, 6 and 7 come into operation when the Council meeting required by section 249 of the Act (as inserted by clause 3) starts.
Clause 3 substitutes a new Division 3 for Division 3, 4 and 5 of Part 12 of the Act.
The new Division 3 consists of new sections 248 to 251 making provision for the election of councillors for the Melton Shire Council to be held on 13 October 2001. The Commissioners go out of office when the meeting of the Council required by section 249 starts.
Clause 6 revokes the Governor in Council Order appointing the Commissioners of Melton Shire.
Clause 7 repeals the Local Government (Governance and Melton) Act 1998.
The Committee makes no further comment.
Introduced: 6 September
2000
Second Reading Speech: 6 September 2000
House: Legislative Assembly
Private Member: Mr. R. Savage MLA with the Ms. S. Davies MLA.
Purpose
The purpose of this Act is to require the determination of terminal gate prices for petroleum products.
The Committee notes the comments in the Second Reading Speech –
This Bill is intended to achieve these purposes.
It requires oil companies to adopt terminal gate prices for petrol and diesel. Petrol and diesel would be available on a first-come, first-served basis, and prices could not be varied more than once in a 24-hour period. Prices would be available to distributors and retailers.
Under this Bill services provided beyond the terminal gate would be identifiable and costed separately from the price of petrol and diesel. These services include transport services, delivery services, the cost of providing credit and equipment, brand fees and the like. Importers and refiners would be required to provide the cost of each service to retailers or distributors.
There is a need to recognise that oil companies own a number of sites and that they are entitled to a commercial return on their investment in those sites.
The Bill enables oil companies to make that return but requires them to make available to retailers the rate of that return.
The Bill also addresses anomalies created by the fact that fuel is loaded at terminals at temperatures that are high when compared with the temperature at which it is stored in the ground. Because the volume of fuel reduces as it cools, retailers are paying for fuel they do not receive. This Bill addresses this anomaly by requiring suppliers to record the temperature at which fuel is loaded, but to charge for the volume that would have been loaded had the temperature been 15 degrees Celsius.
Content and Committee comment
Clause 2 the Bill comes into operation on a day to be proclaimed but not later than by 1 January 2001.
Clause 5 deals with the determination of terminal
gate price providing that a declared supplier must, within 14 days after
the commencement of this Act, determine a price "(the terminal gate
price)" per litre for the sale or supply of each declared class of
petroleum products sold or supplied by the declared supplier. A declared
supplier must not vary the terminal gate price of a declared class of
petroleum products more than once in any 24 hour period.
Penalty: 120 penalty units or 12 months imprisonment or both.
The terminal gate price for a declared class of petroleum products must include any discounts, rebates and price support provided by the declared supplier for the sale or supply of that class of petroleum products.
Clause 6 requires that a declared supplier must determine the actual temperature of any load of petroleum products at the time at which it is supplied by the declared supplier. Penalty: 120 penalty units or 12 months imprisonment or both and that a declared supplier must determine the volume of any load of a declared class of petroleum products supplied by the declared supplier as if the petroleum products had been supplied at a temperature of 15°C.
Clause 8 provides that a declared supplier must not sell or supply petroleum products of a declared class to a distributor or retailer at a price other than the current terminal gate price for that class of petroleum products. Penalty: 120 penalty units or 12 months imprisonment or both.
A declared supplier must determine the price of a load of petroleum products of a declared class on the basis of the volume of that load determined under section 6(2). Penalty: 120 penalty units or 12 months imprisonment or both.
A declared supplier must supply each load of petroleum products of a declared class to a distributor or retailer on a first-come, first-served basis. Penalty: 120 penalty units or 12 months imprisonment or both.
The Committee makes no further comment.
Introduced: 17 August 2000
Second Reading Speech: 29 August 2000
House: Legislative Assembly
Minister: Hon. K. Hamilton MLA with the Hon. R. Hulls MLA.
Purpose
The purpose of the Bill is to make miscellaneous amendments to the Plant Health and Plant Products Act 1995 (the Act).
Content and Committee Comment
Clause 2 the provisions in the Bill commence on proclamation but not later than by 30 June 2002.
Clause 3 amends section 1 by inserting an additional purpose in the Act – ‘(ba) facilitate the movement of plants, plant products, used packages, used agricultural equipment and soil within and into and out of Victoria’.
Clause 6 amends section 24(2) and provides for the provision of a plant health assurance certificate as an alternative to a plant health declaration and plant health certificate and provides for the details that need to be provided in the respective certificates.
Clause 7 allows for regulations to be made prescribing standards for the reconditioning of used packaging.
Clause 9 inserts new sections 43A to 43D and provides the Secretary of the Department the power to accredit persons to issue plant health assurance certificates about plants, plant products, used agricultural equipment, used packages or soil that is grown, produced, treated or tested in Victoria or is introduced or imported into Victoria. The new provisions prescribe the procedures to gain accreditation.
If the Secretary refuses to grant accreditation to an applicant, the Secretary must give the applicant a written notice stating, (a) the decision; and (b) the reasons for the decision; and (c) that the applicant may apply to the Secretary for reconsideration of the decision.
Inspection powers
Clause 10 extends the power of approved inspection services to audit persons accredited to issue assurance certificates. The Second Reading Speech indicates that the powers of inspection under the current legislation is considered defective in a number of respects. The amendments seek to remedy those areas of deficiency and are modeled on the Fair Trading Act 1999.
Clause 11 inserts a new section 52A dealing with search warrants, providing that an inspector, with the written approval of the Secretary, may apply to a magistrate for the issue of a search warrant in relation to particular premises, if the inspector believes on reasonable grounds that there is on the premises any documentary evidence that a person or persons may have contravened the Act. The provisions dealing with search warrants in the Magistrates’ Court Act 1989 apply.
New section 52B provides that an inspector executing the warrant must announce that he or she is authorised by the warrant to enter the premises; and if the inspector has been unable to obtain unforced entry, must give any person at the premises an opportunity to allow entry to the premises. An inspector need not comply with such an announcement if he or she believes, on reasonable grounds, that immediate entry to the premises is required to ensure the safety of any person; or that the effective execution of the search warrant is not frustrated.
New section 52C provides that a copy of the warrant is to be given to the occupier or person present (if applicable) at the premises.
New section 52D deals with the seizure of documents not mentioned in the warrant.
Clause 13 inserts new sections 71A to 71D dealing with offences concerning certification.
New section 71A makes it an offence for any person who is not accredited to issue or use a plant health assurance certificate. New section 71B makes it an offence for a person to make false statements in a plant health certificate. New section 71C makes it an offence to make an unauthorised alteration on a certificate or declaration.
New section 71D deals with the release of information, to other relevant State and Territory authorities. A person employed under Part 3 of the Public Sector Management and Employment Act 1998 who is authorised by the Secretary either generally or in a particular case may communicate information that comes to his or her knowledge in the exercise of his or her powers or authorities or the discharge of his or her functions or duties under this Act or under any scheme or agreement between the States and Territories of the Commonwealth relating to the movement of material to which the Act applies.
Clause 14 makes various amendments to the regulation making powers found in section 72 of the Act. Regulations may be made for practices and procedures relating to reconditioning of used packages. It will also allow persons to be exempted from the application of the Act either partially or in whole or subject to conditions, restrictions or limitations.
New section 72(2A) will permit regulations to limit or restrict the persons or class of persons authorised or permitted by the Act to issue plant health declarations in relation to particular prescribed plant material or classes of prescribed plant material.
|
The Committee notes the amended regulation making power and accepts that they are appropriate to give effect to the purposes of the Act. |
The Committee makes no further comment.
Introduced: 17 August
2000
Second Reading Speech: 29 August 2000
House: Legislative Assembly
Minister: Hon. J. Thwaites MLA with the Hon. S. Bracks MLA.
Purpose
The purpose of the Bill is to amend the Project Development and Construction Management Act 1994 (the Act) to establish the Secretary to the Department of State and Regional Development as a body corporate, to provide for its powers and functions and the transfer of certain matters to it.
Content and Committee comment
Clause 2 the provisions in the Bill come into operation on 1 January 2001.
Clause 9 inserts a new Part 5A into the Act consisting of new sections 41A to 41F.
New section 41A provides that the Secretary to the Department of State and Regional Development is a body corporate under the name "Secretary to the Department of State and Regional Development" which, by that name has perpetual succession; has an official seal; may sue and be sued; may acquire, hold and dispose of real and personal property; may do and suffer all things that a body corporate may, by law, do and suffer. New section 41D provides that Secretary is subject to Ministerial control.
New section 41F is a delegation provision providing –
The Secretary to the Department of State and Regional Development may delegate in writing to any employee or class of employees of the Department of State and Regional Development any of the powers conferred on the Secretary to the Department of State and Regional Development under this Part or the regulations other than this power of delegation.
The Committee notes the delegation power conferred by section 41F and accepts that it is appropriate to give effect to the purposes of the Act. |
Clause 12 inserts a new Part 8 consisting of new sections 60 to 75. The new Part will provide for current assets and liabilities of the Secretary to the Department of Infrastructure to be transferred to the Secretary to the Department of State and Regional Development. Once the transfer has occurred the new body corporate will be the facilitating agency in relation to relevant designated projects.
New section 70 deals with proceedings pending in a court and the substitution of the Secretary to the Department of State and Regional Development as a party to those proceedings in lieu of the Secretary to the Department of Infrastructure.
The Committee makes no further comment.
Introduced: 6 September
2000
Second Reading Speech: 7 September 2000
House: Legislative Assembly
Minister: Hon. J. Pandazopoulos MLA with the Hon. J. Brumby MLA.
Purpose
The main purposes of the Bill are to –
provide for the lawful conduct of public lotteries, including football pools and competitions; and
repeal the Tattersall Consultations Act 1958; and
entitle the promoter under that Act to a public lottery licence for consultations and soccer football pools.
Content and Committee comment
Clause 2 the Act comes into operation on proclamation but not later than by 1 July 2001.
Clause 4 provides that the Act does not apply to a raffle, lottery or other activity authorised by or under the Gaming No. 2 Act 1997.
Clause 5 provides that the Act binds the Crown but does not make it liable for an offence.
Clause 7 provides that a licensee must make rules, not inconsistent with the Act, the regulations or the licence conditions, for or with respect to the conduct of each public lottery authorised by the licence. A licensee or an appointed subsidiary of a licensee must not conduct a public lottery unless lottery rules for the public lottery are in force. The Lottery rules for a public lottery, as in force when an entry to the public lottery is accepted, form part of the contract between the licensee and the player.
Clause 10 the Victorian Casino and Gaming Authority (the Authority) may disallow lottery rules in whole or part, by giving written notice to the licensee, if the Authority is satisfied that the rules are unfair to players, unreasonable or contrary to the public interest and for other reasons may refer the rules to the Minister if the Authority considers that the Minister ought to consider whether the rules should be disallowed.
The Minister may request the Authority to disallow lottery rules (whether or not they were referred to the Minister under sub-section (2)), if the Minister considers that the lottery rules are not in the public interest; or would result in the public lottery being of a different character from the public lottery authorised to be conducted by the licence.
Clause 11 a licensee or other person must not determine a public lottery by draw unless a person nominated by the Director of Gaming and Betting (the Director) supervises the draw.
Clause 13 a person must not knowingly accept an entry in a public lottery from a person under the age of 18 years.
Clause 14 a licensee must not provide credit to a player. This does not prohibit the use of a credit card for payment of a ticket in a public lottery.
Clause 15 a person must not guarantee or promise a prize or overstate the probability of winning such a prize greater than given by the licensee.
Clause 16 other than publishing the location or venue of sale of a winning ticket, a licensee or agent must not publish, or cause to be published, the identity of a person who claims a prize in a public lottery if the person has requested anonymity.
Part 3 – Public Lottery Licences
Clause 17 the Minister may determine the number and type of public lottery licences from time to time.
Clause 18 the Minister may issue a licence for the conduct of any one or more public lotteries except as provided by this section. The Minister must not issue a licence to conduct a public lottery that, in his or her opinion, is offensive or contrary to the public interest.
Clause 20 the Authority must cause to be carried out all investigations and inquiries that it considers necessary to enable it to report to the Minister on the application. A person the Authority is investigating in relation to a licence application is required to consent to having his or her photograph, finger prints and palm prints taken by the Authority and these must be referred to the Chief Commissioner of Police for due inquiry.
Clause 22 the Authority or the Secretary may require certain information and documents to be provided relevant to the application.
Clause 24 the Authority must give a written report to the Minister on each licence application, stating whether or not, in the Authority's opinion the applicant, and each associate of the applicant, is of good repute, having regard to character, honesty and integrity. The report may include recommendations the Authority thinks fit and must include the reasons for any findings or recommendations contained in it.
Clause 25 the Secretary to the Department of Treasury and Finance (the Secretary) must provide a written report to the Minister concerning each application. The report is to deal with the applicants financial resources and background. The report may include any recommendations the Secretary thinks fit must include reasons for any findings or recommendation contained in it.
Clause 26 after receiving the reports mentioned in clauses 24 and 25 the Minister may grant a licence only if satisfied that it is in the public interest to do so. If the Minister refuses a licence application, he or she must give written notice to the applicant.
Clause 30 provides for the payment of a premium in consideration for the licence. Clause 31 a licence cannot be transferred.
Clause 42 a licensee may surrender a licence by notice to the Minister. Such surrender only takes effect if the minister consents to the surrender.
Clause 43 sets out the grounds under which disciplinary action may be taken against a licensee including where the licensee has been found guilty of an offence against the Act, a gaming Act, a corresponding law, an offence involving fraud or dishonesty, whether or not in Victoria, the maximum penalty for which exceeds imprisonment for 3 months; the licensee has contravened a condition of the licence; the licensee has failed to discharge financial obligations to a player.
Clause 44 if the Authority or the Secretary considers that disciplinary action should be taken they are to give 28 days notice to the licensee to show cause why action should not be taken. The licensee may make submissions accordingly. After considering any submissions the Authority or Secretary must report to the Minister with recommendations under clause 45.
Clause 45 provides that disciplinary action may include censure, a fine of up to $500,000, amending, canceling or suspending the licence. On taking action the Minister may rely on the findings made under clause 44 and need not allow the licensee to make any further submissions.
Clause 46 a licence may be suspended pending criminal proceedings for a gaming related offence or for an indictable offence or an offence that, if committed in Victoria, would be an indictable offence, the nature and circumstances of which, in the opinion of the Minister, relate to the management or operation of a public lottery business.
Clause 50 the Authority may investigate a licensee or an appointed subsidiary of a licensee to help the Authority decide whether the licensee or subsidiary is a suitable person or body to conduct, or to continue to conduct, a public lottery.
Clause 51 provides that the Authority may, by written notice, require a licensee, an appointed subsidiary of a licensee or a person or body to –
provide the Authority or an inspector, in accordance with directions in the notice, any information relevant to the licensee, subsidiary or person that is specified in the notice; or
produce to the Authority or an inspector, in accordance with directions in the notice, any records relevant to the licensee's public lottery business, or to other matters specified by the Authority, that are specified in the notice and to permit examination of those records, the taking of extracts from them and the making of copies of them; or
attend before the Authority or an inspector for examination in relation to any matters relevant to the licensee's public lottery business, or to other matters specified by the Authority, and to answer questions relating to those matters.
Clause 51(2) provides that –
A person is not excused from complying with a notice under this section on the ground that compliance would tend to incriminate the person but, if the person, in writing given to the Authority, claims, before complying with the notice, that compliance would tend to incriminate them, information provided in compliance with the notice is not admissible in evidence against the person in criminal proceedings other than proceedings under this Act.
The Committee notes that the privilege against self-incrimination may be abrogated by this clause and that information may be used in proceedings under the Act, but not in any other criminal proceedings. The Committee notes that disciplinary action under clause 45 may include fines of up to $500,000 or cancellation of the licence. The effect of clause 51 is to allow the Authority to compel a licensee or an associated person to attend before the Authority or an inspector for examination and to answer questions relating to relevant licensing matters. The Committee notes the grounds for taking disciplinary actions in clause 43 and takes the view that many of the grounds could be adequately established by evidence from persons other than the licensee. The Committee notes that alternative self-incrimination legislative provisions such as that found in the section 133 of the Fair Trading Act 1999 limit such liability to production of documents only. Other legislative provisions such as in section 91V of the Estate Agents Act 1980, limit the liability for the answering of a question to proceedings in respect to the falsity of the answer. Further in light of the use of a more limited abrogation of the privilege in clause 78 of the Bill the Committee will write to the Minister to seek clarification concerning the need to use such a legislative prescription in this instance. |
Part 4
Clauses 52 to 59 make provision for minimum returns to players to be made on public lotteries conducted under licence. The Part also deals with supervision charges (a tax) to defray costs incurred in the administration of the Act and also deals with other taxation provisions related to lotteries.
Part 5
The Part provides for audits by the Auditor-General at the cost of the licensee. Clause 68 if a claim for a prize cannot be resolved the claimant may ask the Authority to review the licensee's decision on the claim. Clause 69 if a prize is not claimed within 12 months after the end of the public lottery in which the prize was won, the licensee must pay the amount of the prize in accordance with the Unclaimed Moneys Act 1962.
Clause 70 a licensee must inquire into a complaint; made by a person about the conduct of a public lottery; the conduct of an agent of the licensee in operations related to a public lottery; or a complaint referred to the licensee by the Authority.
Part 6 – Investigation and Enforcement provisions
Clause 71 provides that a person holding an appointment under Part 10 of the Gaming and Betting Act 1994 is an inspector for the purposes of this Act and that a member of the police force has the functions and powers of an inspector under this Act.
Clause 72 an inspector may enter and remain on premises where a public lottery is being conducted or the premises of a licensee at any time when the premises are open to the public; or with the consent in writing of the occupier.
Clause 74 an inspector has the power to require any person in possession of, or having control of, any equipment used in connection with a public lottery, or any records relating to a public lottery, to produce the equipment or records for inspection and to answer questions or provide information relating to the equipment or records, the seizure of any equipment or records; examine and test any equipment; and call to aid the assistance of a member of the police force.
Clause 74(1)(d) provides that an inspector may by notice in writing require –
(i) an executive officer or other representative of a licensee; or
any other person who is or has been associated with the conduct of a public lottery -
to attend before the inspector at a specified time or place and answer questions, or provide information, with respect to the conduct of a public lottery.
A person must not refuse or fail, without reasonable excuse, to comply with this requirement. [Refer to clause 78 – Protection against Self-incrimination.]
Search warrants
Clause 75 provides for the issue of search warrant according to the practices and procedures found in the Magistrates’ Court Act 1989.
Self-incrimination
Clause 78 provides –
(1) It is a reasonable excuse for a person to refuse or fail to answer questions or provide information that the person is required to answer or provide by or under this Part if the answering of the question or provision of the information would tend to incriminate the person.
(2) It is not a reasonable excuse for a person to refuse or fail to produce any equipment or records that a person is required to produce by or under this Part on the ground that the production of the equipment or records would tend to incriminate the person.
If the person claims, before producing the equipment or records, that production of the equipment or records would tend to incriminate them, the equipment or records are not admissible in evidence against the person in criminal proceedings.
The Committee notes the privilege against self-incrimination provision in clause 78 makes a distinction between the compulsion to make an admission of guilt through testimonial evidence, and the production of documents and equipment which are in the nature of real evidence and which are not testimonial in character. The Committee has commented on this form of modified self-incrimination provision on prior occasions, such as in respect to the Fair Trading Act 1999. The Committee accepts that there may be public policy reasons for modifying the privilege against self-incrimination in this manner in cases where offences of a commercial nature may be difficult to prove without the availability of documents records or equipment. The Committee draws Parliament’s attention to the provision. |
Destruction of finger and palm prints
Clause 84 provides for the destruction of finger prints and palm prints obtained by the Authority under this Act and any copies of them must be destroyed by the Authority as soon as the Authority has no further use for them. The Authority is to be considered to have no further use for them if they were obtained in connection with an application for a licence and the application is refused; or the licence in connection with which they were obtained is cancelled, surrendered or no longer in force.
Delegation by Authority
Clause 85 provides for a delegation of powers and functions by the Authority to members of the Authority in these terms –
The Authority may, by instrument under its official seal, delegate to the members of a committee of the Authority consisting of at least 3 members of the Authority any power of the Authority under this Act other than this power of delegation.
Clause 86 provides for a delegation by the Secretary to the Department of Treasury and Finance in these terms –
The Secretary may, by instrument, delegate to any person employed in the Department of Treasury and Finance any power of the Secretary under this Act other than this power of delegation.
The Committee considers the delegation powers in clauses 85 and 86 to be appropriately well defined to give effect to the purposes of the Act. |
Clause 87 provides the regulation making power –
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.
The Committee considers the regulation making power appropriate to give effect to the purposes of the Bill. |
Part 8
Provides for the repeal (with some saving transitional provisions) of the Tattersall Consultations Act 1958.
Clause 90 provides that the promoter is entitled to a licence under the Act for the conduct of consultations and soccer football pools until 30 June 2007, unless it is surrendered, cancelled or suspended earlier in accordance with the Act.
Clause 92 provides for licence exclusivity. The Minister cannot issue a licence under this Act authorising the conduct of a public lottery, other than an AFL footy tipping competition, to any person other than the promoter, if the licence would be in force at any time before 1 July 2004.
Part 9
The Part makes consequential amendments to related Acts.
The Committee makes no further comment.
Introduced: 17
August 2000 |
Purpose
The purpose of the Bill is to revise and correct the statute law of Victoria. The Bill repeals a number of spent Acts and spent provisions of Acts; corrects grammatical and spelling errors; updates references and makes other statute house-keeping amendments.
The Bill contains retrospective provisions to correct a number of errors and inadvertent references. The purpose of the retrospective amendments is to correct, from the beginning, the provisions to ensure that the legislation is fully effective and is deemed always to have been fully effective from the intended original commencement of the provision.
Content and Committee comment
Clause 2 provides that other than the items specified in (a) to (za) (below), the provisions in the Bill commence on the day after Royal Assent.
The following items in Schedule 1 are deemed to have come into operation on the following dates –
| (a) Item 1.3
on 1 July 1997; (b) Item 2 on 15 June 1994; (c) Item 14 on 10 November 1998; (d) Item 19 on 3 December 1996; (e) Items 23.1 and 23.2 on 8 June 1999; (f) Item 26 on 10 November 1998; (g) Item 45 on 17 October 1995; (h) Item 46 on 22 May 1995; (i) Item 48 on 20 May 1997; (j) Item 50 on 22 April 1997; (k) Item 54 on 2 June 1994; (l) Item 56 on 6 June 1995; (m) Item 66.1 on 15 December 1998; (n) Item 70 on 1 December 1998; |
(o) Item 73.1
on 20 December 1994; (p) Items 77.3 and 77.4 on 17 May 1994; (q) Item 80 on 1 December 1998; (r) Item 84.2 on 1 January 1996; (s) Items 88.1, 88.2 and 88.3 on 20 June 1995; (t) Item 111.3 on 23 June 1992; (u) Item 114 on 11 June 1997; (v) Item 126 on 15 December 1988; (w) Items 128.1 and 128.2 on 16 May 1989; (x) Items 129.1 and 129.2 on 17 November 1998; (y) Item 135 on 18 November 1997; (z) Item 140.1 on 10 November 1998; (za) Item 142 on 17 May 2000. |
Clause 3 provides that Schedule 1 amends certain Acts in the manner specified in the items listed in that Schedule. The items correct references to Parts, sections, sub-sections and paragraphs, amend typographical, spelling and grammatical errors, update and amend cross-references to Acts and update and amend machinery of government nomenclature, and remove some spent provisions in Acts.
Items (a) to (za) – Retrospective amendments
(a) Item 1.3 retrospectively amends section 112(5) of the Accident Compensation Act 1985. The amendment substitutes "registered chiropractor or a registered osteopath" for "registered chiropractor and osteopath". The amendment should have been made at the time of the enactment of the Chiropractors Registration Act 1996 (the Act) and will allow that reference to be deemed to have commenced at the time the Act commenced on 1 July 1997.
The Committee notes that the retrospective application of this amendment is to correct an inadvertent omission in the Act. The Committee accepts that the amendment does not trespass unduly upon rights and freedoms within the meaning of section 4D(a)(i) of the Parliamentary Committees Act 1968.
(b) Item 2 retrospectively amends section 62(6) of the Accident Compensation (Amendment) Act 1994 (the amending Act) to insert the words "of the Principal Act" after "129G(16)" to put beyond doubt the intention of the section. The retrospective date, 15 June 1994, being the day on which the 1994 amending Act received the Royal Assent.
The Committee notes the fundamentally declaratory nature of the retrospective amendment is intended to put beyond doubt the original intention of the amending legislation. The Committee accepts that the amendment does not trespass unduly upon rights and freedoms within the meaning of section 4D(a)(i) of the Parliamentary Committees Act 1968.
(c) Item 14 retrospectively amends section 17 of the Building (Plumbing) Act 1998. In section 17 before "221ZZZE. Plumbing" substitute "For section 221ZZZE of the Building Act 1993 substitute--". The amendment removes any doubt that the original amendment was effective and is retrospective to 10 November 1998, the date of Royal Assent of the Building (Plumbing) Act 1998.
The Committee notes the retrospective amendment puts beyond legal doubt the original intention of the 1998 amending provision. The Committee accepts that the amendment does not trespass unduly upon rights and freedoms within the meaning of section 4D(a)(i) of the Parliamentary Committees Act 1968.
(d) Item 19 retrospectively amends section 58 of the Children's Services Act 1996 and corrects an inadvertent spelling error. The amendment substitutes "Children and Young Persons Act 1989" for "Children's and Young Persons Act 1989". The amendment is retrospective to 3 December 1996 being the date of Royal Assent of the 1996 Act.
The Committee notes that the retrospective amendment corrects an inadvertent error and removes any doubt that the original reference to the 1989 Act was effective. The Committee notes that the amending provision does not trespass unduly upon rights and freedoms within the meaning of section 4D(a)(i) of the Parliamentary Committees Act 1968. (e) Item 23.1 and 23.2 retrospectively correct two references in the Schedule of the Commonwealth Places (Mirror Taxes Administration) Act 1999. The amendments clarify the numbering in the Schedule and also correct a grammatical error. The amendments are retrospective to 8 June 1999 being the date of Royal Assent of the 1999 Act.
The Committee notes that the retrospective amendment corrects inadvertent errors and removes doubt as to the effectiveness of those provisions in the Schedule when they commence operation. The Committee notes that the amending provision does not trespass unduly upon rights and freedoms within the meaning of section 4D(a)(i) of the Parliamentary Committees Act 1968.
(f) Item 26 retrospectively amends section 3(2) of the Conservation, Forests and Lands (Miscellaneous Amendments) Act 1998 (the amending Act). The amendment corrects a cross-reference error in section 3(2). In that sub-section the cross-reference should have been to section 6 and not section 2. The amendment is retrospective to 10 November 1998 being the date of Royal Assent of the amending Act.
The Committee notes that the retrospective amendment corrects a cross reference error and removes doubt as to the effectiveness of the provisions. The Committee notes that the amending provision does not trespass unduly upon rights and freedoms within the meaning of section 4D(a)(i) of the Parliamentary Committees Act 1968.
(g) Item 45 retrospectively amends Item 8 of Schedule 1 of the Extractive Industries Development Act 1995 (the Act). The amendment corrects an inadvertent reference for "Forests Act 1988" and substitutes "Forests Act 1958". The provision is retrospective to 17 October 1995 being the date of Royal Assent of the Act.
The Committee notes the retrospective amendment corrects an inadvertent reference in Schedule 1 and removes doubt as to the effectiveness of the provision in that Schedule. The Committee notes that the amending provision does not trespass unduly upon rights and freedoms within the meaning of section 4D(a)(i) of the Parliamentary Committees Act 1968.
(h) Item 46 retrospectively amends section 31 of the Fences Act 1968 by removing the reference to "the Minister for Public Works". Section 67 (now repealed) of the Project Development and Construction Management Act 1994 purported to make that amendment but referred inadvertently to the Fences Act 1958 instead of the Fences Act 1968. To remove any residual doubt the retrospective amendment is made to delete the reference to the "Minister for Public Works" in section 31 of the Fences Act 1968. The amendment is retrospective to 22 May 1995 the date of Royal Assent of the 1994 Act.
The Committee notes the retrospective amendment removes all doubt as to the original intent to delete the reference to the Minister of Public Works in section 31 of the Fences Act 1968 purported to be made by section 67 (now repealed) of the Project Development and Construction Management Act 1994. The Committee notes that the amending provision does not trespass unduly upon rights and freedoms within the meaning of section 4D(a)(i) of the Parliamentary Committees Act 1968.
(i) Item 48 retrospectively amends section 46(b) of the Fire Authorities (Amendment) Act 1997 (the amending Act). That section amended section 70(1) of the Metropolitan Fire Brigades Act 1958. In section 70(1) the word "officer" appears twice and the amendment made by item 48 puts beyond doubt that the amendment made by the amending Act is made after the word "officer" where it appears a second time. The amendment is retrospective to 20 May 1997 the date of Royal Assent of the amending Act.
The Committee notes the amendment removes doubt as to the intended operation of section 46(b) of the 1997 amending Act. The Committee notes that the amending provision does not trespass unduly upon rights and freedoms within the meaning of section 4D(a)(i) of the Parliamentary Committees Act 1968.
(j) Item 50 retrospectively amends section 41(5) of the Fisheries (Further Amendment) Act 1997 (the amending Act). The Act amended section 151(5) of the Fisheries Act 1995 (the principal Act). The retrospective amendment removes doubt as to the original intended operation of section 41(5), that is, that it was to apply to "class of licence" wherever occurring in section 151(5)2 of the principal Act. The item is retrospective to 22 April 1997, the date of Royal Assent of the amending Act.
The Committee notes the amendment removes doubt as to the intended operation of section 41(5) of the 1997 amending Act. The Committee notes that the amending provision does not trespass unduly upon rights and freedoms within the meaning of section 4D(a)(i) of the Parliamentary Committees Act 1968.
(k) Item 54 retrospectively amends the Gaming and Betting Act 1994 (the Act) by amending a printing error in section 203(1). The amendment being that for the expression beginning "B is the amount certified" and ending with "the sum of" substitute "B is the amount certified by the Auditor-General as being the sum of". To remove any legal doubt the amendment is retrospective to 2 June 1994, the date of Royal Assent of the Act.
The Committee notes the amendment removes doubt as to the intended operation of section 203(1) of the Act. The Committee notes that the amending provision does not trespass unduly upon rights and freedoms within the meaning of section 4D(a)(i) of the Parliamentary Committees Act 1968. (l) Item 56 retrospectively amends section 38 of the Gas and Fuel Corporation (Repeal) Act 1995 (the amending Act). Section 38 of the amending Act is retrospectively amended as follows - before "62A" insert "After section 62 of the Gas Industry Act 1994 insert--". The retrospective amendment is to 6 June 1995, the date of Royal Assent of the amending Act.
The Committee notes the amendment to section 38 removes any doubt as to the effectiveness of the section. The Committee notes that the amending provision does not trespass unduly upon rights and freedoms within the meaning of section 4D(a)(i) of the Parliamentary Committees Act 1968. (m) Item 66.1 retrospectively amends section 133A(4) of the Land Act 1958 to correct a reference for "Director-General" and substituting "Secretary" instead. The correct reference should have been made by the Conservation, Forests and Lands (Miscellaneous Amendments) Act 1998 (the amending Act). The Item is made retrospective to 15 December 1998, the date of commencement of the amending Act.
The Committee notes that the retrospective amendment is a government nomenclature amendment that should have been made by the amending Act. The Committee notes that the amending provision does not trespass unduly upon rights and freedoms within the meaning of section 4D(a)(i) of the Parliamentary Committees Act 1968.
(n) Item 70 retrospectively amends section 8(1) of the Licensing and Tribunal (Amendment) Act 1998 (the amending Act) which amended the Motor Car Traders Act 1996 (the principal Act). The amendment removes doubt that the correct section reference was intended in the principal Act. The Item is made retrospective to 1 December 1998, the date of Royal Assent of the amending Act.
The Committee notes the retrospective amendment removes any doubt as to the effectiveness of the section. The Committee notes that the amending provision does not trespass unduly upon rights and freedoms within the meaning of section 4D(a)(i) of the Parliamentary Committees Act 1968.
(o) Item 73.1 retrospectively amends section 3(1) of the Livestock Disease Control Act 1994 (the Act). The amendment inserts the missing introductory words to section 3 as follows - before the definition of "appropriate Minister" insert "In this Act--". This item is retrospective to 20 December 1994, the date of Royal Assent of the Act.
The Committee notes the retrospective amendment inserts the missing words in the definitions section which were inadvertently omitted in the Act. The Committee notes that the amending provision does not trespass unduly upon rights and freedoms within the meaning of section 4D(a)(i) of the Parliamentary Committees Act 1968.
(p) Items 77.3 and 77.4 retrospectively make minor amendments to Schedule 1 of the Medical Practice Act 1994. The amendments to Schedule 1 are, (a) item 25.5 for "medical practitioner" substitute "medical practitioners" and, (b) item 38.19 for "medical practitioners" substitute "medical practitioner". The amendments are retrospective to 17 May 1994, the date of Royal Assent of the Act.
The Committee notes that the amendments remove doubt as to the effectiveness of the items amended in the Schedule. The Committee notes that the amending provision does not trespass unduly upon rights and freedoms within the meaning of section 4D(a)(i) of the Parliamentary Committees Act 1968.
(q) Item 80 retrospectively amends section 93GA(4) of the Melbourne City Link Act 1995 (the Act). The amendment corrects an inadvertent cross-reference in that section. The cross-reference in sub-section (4) should be to sub-section (3) and not to sub-section (2). This item is made retrospective to 1 December 1998, the date of Royal Assent of the Melbourne City Link (Amendment) Act 1998 (the amending Act). The amending Act inserted section 93GA into the Act.
The Committee notes that the retrospective amendment corrects an inadvertent cross-reference in a section of the Act inserted by an amendment made in 1998. The Committee notes that the amending provision does not trespass unduly upon rights and freedoms within the meaning of section 4D(a)(i) of the Parliamentary Committees Act 1968.
(r) Item 84.2 retrospectively amends section 10 of the Municipal Association Act 1907 (the Act) to put beyond doubt that the purported amendment made to the Act by section 28(4) of the Trade Measurement (Administration) Act 1995 (the amending Act) effectively removed the words "or the Weights and Measures Act 1958" from section 10 of the Act. The item is made retrospective to 1 January 1996, the date of the commencement of the original section 28(4) of the amending Act.
The Committee notes the retrospective amendment puts beyond doubt the removal of the reference that was intended to be removed by the amending Act. The Committee notes that the amending provision does not trespass unduly upon rights and freedoms within the meaning of section 4D(a)(i) of the Parliamentary Committees Act 1968.
(s) Items 88.1, 88.2 and 88.3 retrospectively amend sections 34 and 35 and Schedule 3 of the National Parks (Yarra Ranges and Other Amendments) Act 1995 (the amending Act). The amendments respectively are, (a) in section 34 after "Part III" insert "of the Principal Act", (b) in section 35 after "32C(1)" insert "of the Principal Act", and (c) in Schedule 3, in Part B, in paragraph (c)(ii) for "the land bordered in blue" substitute "land bordered blue". The retrospective amendments will put beyond doubt the original intention of the amending Act. The Items are retrospective to 20 June 1995, the date of Royal Assent of the amending Act.
The Committee notes the corrections sought to be made by the retrospective amendments to put beyond legal doubt the original intent of the amending Act. The Committee notes that the amending provisions do not trespass unduly upon rights and freedoms within the meaning of section 4D(a)(i) of the Parliamentary Committees Act 1968.
(t) Item 111.3 retrospectively amends section 50 of the Royal Melbourne Institute of Technology Act 1992 (the Act) to correct a typographical error. The amendment is that in section 50 for "the council or Phillip" substitute "the council of Phillip". The amendment is retrospective to 23 June 1992, the date of Royal Assent of the Act.
The Committee notes the correction seeks to remove any doubt as to the effective operation of section 50 of the Act. The Committee notes that the amending provision does not trespass unduly upon rights and freedoms within the meaning of section 4D(a)(i) of the Parliamentary Committees Act 1968.
(u) Item 114 retrospectively amends section 60(2) of the Sentencing and Other Acts (Amendment) Act 1997 (the amending Act). The amendment corrects an incorrect cross-reference and provides that in section 60(2) for "32(1)" substitute "31A(1)". The amendment seeks to remove doubt as to the original intent and effective operation of the amendment. The Item is retrospective to 11 June 1997, the date of Royal Assent of the amending Act.
The Committee notes the corrections sought to be made by the retrospective amendment to put beyond legal doubt the original intent of the amending Act. The Committee notes that the amending provision does not trespass unduly upon rights and freedoms within the meaning of section 4D(a)(i) of the Parliamentary Committees Act 1968.
(v) Item 126 retrospectively amends Part A of the Schedule of The Constitution Act Amendment (Electoral Reform) Act 1988 (the Act). The amendment to be made is that in Part A of the Schedule, in item 2 after "Vital State Projects Act" insert "1976". The retrospective amendment seeks to do no more than to correctly refer to the Vital State Projects Act 1976. The amendment is retrospective to 15 December 1988, the date of Royal Assent of the Act.
The Committee notes the corrections sought to be made by the retrospective amendment is to put beyond legal doubt the correct reference in the Act to the Vital State Projects Act 1976. The Committee notes that the amending provision does not trespass unduly upon rights and freedoms within the meaning of section 4D(a)(i) of the Parliamentary Committees Act 1968.
(w) Item 128.1 and 128.2 retrospectively amends two items in Schedule 2 of the Transfer of Land (Computer Register) Act 1989 (the Act). The amendments are, (a) in Schedule 2, in item 50(a) for "said lands or affecting" substitute "said lands or otherwise affecting", and (b) in Schedule 2, in item 56(c)(i) for "certifiate" substitute "certificate". The amendments correct minor grammatical and spelling errors in the Act and remove any doubt as to their legal effectiveness. The amendments are retrospective to 16 May 1989, the date of Royal Assent of the Act.
The Committee notes the minor grammatical and spelling error corrections sought to be made by the retrospective amendments to put beyond legal doubt the original intent of the amending Act. The Committee notes that the amending provisions do not trespass unduly upon rights and freedoms within the meaning of section 4D(a)(i) of the Parliamentary Committees Act 1968.
(x) Items 129.1 and 129.2 make retrospective amendments to the Schedule of the Transfer of Land (Single Register) Act 1998 (the amending Act). The amendments are, (a) in the Schedule, in item 15 for "the Registrar-General" substitute "Registrar-General", and (b) in the Schedule, in item 42, for "section 3, in the definition", substitute "section 4(1), in paragraph (d) of the definition". The amendments correct minor errors and remove doubt as to the legal effectiveness of the amending Act. The items are retrospective to 17 November 1998, the date of Royal Assent of the amending Act.
The Committee notes the corrections sought to be made by the retrospective amendments to put beyond legal doubt the original intent of the amending Act. The Committee notes that the provisions do not trespass unduly upon rights and freedoms within the meaning of section 4D(a)(i) of the Parliamentary Committees Act 1968.
(y) Item 135 retrospectively amends section 2(1) of the University Acts (Further Amendment) Act 1997. The amendment is that after section 2(1) insert "(1A) Section 78 is deemed to have come into operation on 10 December 1996". The Item thus retrospectively inserts a retrospective commencement date for section 78. Section 78 made a statute law revision amendment to the University Acts (Amendment) Act 1996 as follows —
78. Statute law revision
In sections 28 and 29 of the University Acts (Amendment) Act 1996, for "Deakin University Act 1964" substitute "Deakin University Act 1974".
The retrospective amendment does no more than update a reference to the Deakin University Act 1974.
The Committee notes the correction sought to be made by the retrospective amendment does no more than to refer to the correct short title of an Act. The Committee notes that the amending provision does not trespass unduly upon rights and freedoms within the meaning of section 4D(a)(i) of the Parliamentary Committees Act 1968.
(z) Item 140.1 retrospectively amends the Victorian Plantations Corporation Act 1993. The amendment is that, in section 6 for "Director-General or Secretary to the Department of Natural Resources and Environment" substitute "Secretary". Section 17(2) of the Conversation, Forests and Lands (Miscellaneous Amendments) Act 1998 (the amending Act) attempted to make that amendment, but was ineffective in that the amendment referred to the Department by an incorrect name (the Department of Conservation and Natural resources instead of the Department of Natural Resources and Environment). The item is retrospective to 10 November 1998, the date of Royal Assent of the amending Act.
The Committee notes the corrections sought to be made by the retrospective amendment put beyond legal doubt the original intent of the amending Act. The Committee notes that the amending provision does not trespass unduly upon rights and freedoms within the meaning of section 4D(a)(i) of the Parliamentary Committees Act 1968.
(za) Item 142 retrospectively amends the Vocational Education and Training Act 1990. The amendment to be made is that in section 91AB(1) for "employer" (where secondly occurring) substitute "employee". The Item retrospectively corrects an inadvertent error made by section 5 of the Vocational Education and Training (Council Membership) Act 2000 (the amending Act). The item is to be retrospective to 17 May 2000 the date of commencement of section 5 of the amending Act.
The Committee notes the corrections sought to be made by the retrospective amendment put beyond legal doubt the original intent of the amending Act. The Committee notes that the amending provision does not trespass unduly upon rights and freedoms within the meaning of section 4D(a)(i) of the Parliamentary Committees Act 1968.
The Committee accepts that the statute law revision amendments made by items 1 to 146 in Schedule 1 are appropriate and necessary in the circumstances. |
Clause 4 provides that the 114 Acts (the Acts) listed in Schedule 2 are to be repealed. The Acts to be repealed are grouped by the year of their passage and their number. There are 32 Acts from 1995, 22 Acts from 1996 and 60 Acts from 1997. The Acts are amending Acts in character. The amendments having been incorporated in the principal Acts the Acts serve no further useful purpose remaining on the Victorian statute books.
The last major statute law revision of this type occurred in March 1999 when 250 Acts were removed from the Victorian statute book by the Statute Law Revision (Repeals) Act 1999. [Alert Digest No.1 of 1999].
The Committee accepts that the statute law revision repeal of Acts listed in Schedule 2 are appropriate in the circumstances. |
Other Statute Law Revision matters
The Committee notes that in respect to the Petroleum Act 1998 the then Minister undertook to amend section 252(2)(f). The Committee’s concerns and the Minister’s response were published in Alert Digest No.1 of 1999.
Section 252(2)(f) provides –
The regulations may provide in a specified case or class of case for the exemption of people or things from any of the provisions of this Act, whether unconditionally or on specified conditions, and either wholly or to such extent as is specified.
The Minister undertook to delete the words ‘this Act’ and substitute the words ‘the regulations’. The Committee’s concerns were, that the provision constitutes an inappropriate delegation of legislative power within the meaning of section 4D(a)(iv) of the Parliamentary Committees Act 1968.
The Committee recommends that the Minister for Energy and Resources advise the Parliament whether section 252(2)(f) of the Petroleum Act 1998 will be amended as foreshadowed by the then Minister in his letter to the Committee on 24 November 1998. |
Unproclaimed Acts – Appendix 3
The Committee provides information to the Parliament pursuant to section 4D(a)(iv) of the Parliamentary Committees Act 1968 concerning unproclaimed Acts. They are listed in Appendix 3.
The Committee has consistently maintained that an unjustified or unexplained commencement by proclamation provision represents an improper delegation of legislative power within the meaning of pursuant to section 4D(a)(iv) of the Parliamentary Committees Act 1968. The Committee notes that there are at least 3 Acts passed prior to 1997 that remain unproclaimed. The Committee will write to the Attorney-General to request further information for any reasons why the Acts listed in Appendix 3 and any other Acts passed prior to 1997 remain unproclaimed. The Committee will write to the Attorney-General to seek further information concerning unproclaimed Acts. |
The Committee makes no further comment.
Introduced: 6 September
2000 |
Purpose
The purpose of the Bill is to amend the Tattersall Consultations Act 1958 (the Act) to adjust taxation rates. *Note Saving sections 6, 6AA and 6AAA, the Public Lotteries Bill (see below) repeals the Act by proclamation not later than by 1 July 2001.
Content and Committee comment
Clause 2 the provisions in the Bill commence on the day after Royal Assent.
Clause 3 substitutes a new section 6(1) in the Act to make an adjustment to the tax rate applicable to lottery sales arising from the introduction of the Goods and Services Tax (GST). The change follows from a taxation ruling from the Australian Tax Office.
Clause 4 amends section 6AA of the Act to provide that the 10 cent subscription levy where a ticket is not issued does not apply to the sale of lottery products in non-Victorian jurisdictions. This covers sales such as telephone and Internet sales outside Victoria.
Retrospective provision
Clause 5 provides that the new taxation arrangements introduced by clause 3 apply from the time the GST was introduced on 1 July 2000. The clause provides that under and over payments by Tatersall will be adjusted.
The Committee notes the comments in the Second Reading Speech –
The amendment will be retrospective to 1 July 2000. This is because Tattersalls has been paying GST on the commission component since that date. This will involve reimbursing Tattersalls for the difference between the tax rate that they have been paying and the reduced rate. The period of the reimbursement will be from 1 July 2000 to the day on which the Bill receives Royal Assent. The Bill contains a provision providing for a standing appropriation for this amount.
The Committee notes the retrospective application of this provision to the commencement of the Goods and Services Tax on 1 July 2000. The Committee notes the comments in the Second Reading Speech that the amendment will involve a reimbursement to Tattersalls. The provision appears to be beneficial to Tattersalls and in those circumstances the Committee does not report adversely on its retrospective application. |
The Committee makes no further comment.
Introduced:
17 August 2000 |
Purpose
The main purpose of the Bill is to amend the Tertiary Education Act 1993 (the Act), to –
repeal the provisions relating to voluntary student unionism; and
make further provision about non-academic fees, subscriptions and charges.
Content and Committee comment
Clause 2 the provisions in the Bill come into operation on the day after Royal Assent.
Clause 3 repeals sections 12C, 12D, 12E and 12F of the Act which prevent a tertiary education institution requiring membership of a student organisation and which limit the purpose for which compulsory non-academic fees may be used for. The clause also amends section 12G and will provide that all fees collected by the institution to be paid to an organisation of students will be held in trust by the governing body of the institution.
The clause also amends the regulation making power as a consequence of the repeal of section 12F.
Clause 4 substitutes a new section 12J to deal with transitional arrangements relating to money collected before the repeal of section 12F. Such monies may be used as if the constraints imposed by section 12F had not been in place.
Clause 5 makes minor statute law revision amendment in section 15(2) of the Act for ‘college’ substitute ‘institution’.
The Committee notes the following passages from the Second Reading Speech –
This Bill will not make membership (of a student organisation) compulsory; it will simply remove the imposition by government of a constraint on the councils' prerogative.
This is consistent with the principle of subsidiarity -- that is, that authority to make determinations should rest with the most local jurisdiction possible. In this instance, the university or institute council.
…
The Bill does not repeal section 12H of the Act, which makes it an offence to persuade or attempt to persuade another person to become a member of a student organisation by threats, intimidation or deception. The intent of the original Act was to have effect in situations where membership is voluntary to prevent criminal or inappropriate pressure being applied to manipulate students into becoming members if they did not wish to do so. This intention remains. However, the government's objective with this Bill is not to prevent a council requiring students to be members, and if necessary enforcing that requirement if they believe requiring membership to be desirable.
…
The amendments proposed in this Bill would remove the provisions which prevent governing bodies from requiring students to be members of a student organisation and repeal the sections limiting the range of services which can be supported from compulsory non-academic fees.
…
The provisions which require that money collected for student organisations be passed on to those organisations, and which require audited statements of the uses of revenue from compulsory fees are retained. Also retained is section 12H which makes it an offence to persuade or attempt to persuade a person to be a member of an organisation by threats, intimidation, or deception.
Some members of the Committee expressed concern that the amendments proposed by the Bill raised the issue of the right of freedom of association for an individual to choose whether or not to become a member of a student organisation and how their financial contributions are applied and distributed. Other members expressed the view that individuals derive rights from the collective responsibilities of members in an education institution and that there were thus competing rights to be weighed in consideration of whether there was an undue trespass of the rights and freedoms of an individual when balanced against the rights and freedoms of that community. After lengthy discussion and deliberation the Committee was unable to adopt a unanimous comment for the purposes of this report to the Parliament whether there was an undue trespass to rights and freedoms within the meaning of section 4D(a)(i) of the Parliamentary Committees Act 1968. The Committee therefore accepts, that the question whether the council of a university or tertiary institution should have a discretion to require a student to belong to a student organisation constitutes an undue trespass to rights and freedoms is a question for the Parliament to consider and determine. The Committee draws Parliament’s attention to the provisions. |
The Committee makes no further comment.
Introduced: 6 September
2000 |
Purpose
The main purpose of the Bill is to –
amend the Adult, Community and Further Education Act 1991 (the Act) to provide for the establishment of adult education institutions and their governing boards; transfer the staff employed in the Department of Education, Employment and Training in the administration or provision of adult multicultural education services to an adult education institution to be known as Adult Multicultural Education Services which is to be governed by a body corporate to be known as the Board of Adult Multicultural Education Services; make other miscellaneous amendments;
repeal the Council of Adult Education Act 1981 and to transfer the staff, property and liabilities of the Council of Adult Education established under that Act to an adult education institution established under the Adult, Community and Further Education Act 1991 to be known as the Centre for Adult Education to be governed by a body corporate to be known as the Board of the Centre for Adult Education;
repeal the Employment Agents Act 1983.
Content and Committee comment
Clause 2 provides the commencement provisions. Sections 1, 2, 9, 10 and 14(2) come into operation on the day after Royal Assent. The remaining provisions come into operation on proclamation but not later than by 1 December 2001.
Clause 4 inserts in section 1 of the Act the new additional purpose of the Act in relation to th establishment of adult education institutions.
Clause 6 amends section 10 to allow for Ministerial guidelines or directions relating to the operation of adult education institutions, including matters relating to the employment of staff by those Councils or those governing boards.
Section 10(3) (as amended) will provide that the Board, the governing board of an adult education institution and a Regional Council must observe and give effect to any guidelines or direction issued under the section when exercising its functions or powers under the Act.
Clause 11 inserts a new Part 4 consisting of new sections 44 to 49 and sections 49A to 49L providing for the establishment, powers and functions of adult education institutions and their governing boards.
New section 44 establishes an adult education institution to be called Adult Multicultural Education Services (AMES). The AMES Board is the governing body and is constituted as a body corporate by Order in Council. The AMES Board has the functions and powers conferred on it by the Act and by Order in Council made under the Act.
New section 45 establishes an adult education institution to be called the Centre for Adult Education (the CAE). The Board of the CAE is the governing body and is constituted as a body corporate by Order in Council. The CAE Board has the functions and powers conferred on it by the Act and by Order in Council made under the Act.
New section 46 provides that the Governor in Council may, on the recommendation of the Minister, by Order published in the Government Gazette create, abolish, amalgamate or change the names of adult education institutions.
New section 47 provides that the Governor in Council may, on the recommendation of the Minister by Order establish amalgamate, abolish, change the name of, or make further provision in respect of the governing boards of adult education institutions.
New sections 48 and 49 sets out the powers and functions of the governing board of an adult education institution.
New section 49A deals with the accountability of governing boards.
New sections 49B and 49C deal with Board membership (not less than 9 and not more than 15 persons at least half to be appointed by the Minister) and terms and conditions of office of Board members. A person who is a member of Parliament must not be appointed or elected to be a member of a governing board. The Minister may remove a member appointed by the Minister at any time.
New section 49E sets out the reserve powers of the Minister where the Minister is satisfied that the governing board of an institution is inefficiently or incompetently managing the institution; or is failing to comply with its performance agreement; or has failed to comply with any provision of the Act, a guideline issued by the Minister or any directions given to the governing board by the Minister or an Order in Council establishing the governing board.
New section 49J the Minister may object to the appointment of a person as institution director of a governing body.
Clause 12 inserts a new Part 6 (new sections 53 to 66) into the Act dealing with transitional provisions.
New section 53 provides that the new Part 6 is to have extra-territorial effect outside the State and outside Australia.
New section 56 and 57 provides that any staff transferred to AMES under the Part must be transferred on the same terms and conditions as existed before the transfer including superannuation entitlements.
New section 58 deals with the power to determine future terms and conditions on employment of transferred staff.
New section 59 provides that the person who, immediately before the relevant date, held office as the Director of AMES in the Department of Education Employment and Training is deemed to be appointed to the office of Director of AMES subject to the terms and conditions of that appointment immediately before the relevant date.
New sections 61 and 62 deals with the transfer of property, rights and liabilities and gifts or trusts of the Council of Adult Education (the Council) when that body is dissolved.
New section 63 deals with the transfer of the Director and the staff of the Council who respectively become the Director and staff of the Centre of Adult Education on the same terms and conditions and superannuation entitlements that applied to them before their transfer.
New sections 64 and 65 provides for the transfer of land owned by the Council to the Centre and the Registrar of Titles is empowered to make the necessary amendments to the Register.
Clause 13 inserts a new Schedule into the Act listing the 2 Adult Education Institutions –
Adult Multicultural Education Services
Centre for Adult Education
Clause 14 repeals the Council of Adult Education Act 1981 and the Employment Agents Act 1983.
The Committee makes no further comment.
Water Industry (Amendment) BillIntroduced:
6 September 2000 |
Purpose
The purposes of the Bill are to –
provide for the power for Melbourne Parks and Waterways to surrender all its land to the State; and
provide for functions, powers, rights and liabilities of Melbourne Parks and Waterways to be transferred to the State; and
repeal provisions of the Water Industry Act 1994 establishing Melbourne Parks and Waterways; and
make further amendments to other Acts and to repeal the Wattle Park Land Act 1991.
make adjustments to some of the administrative arrangements for park management.
Content and Committee comment
Clause 2 provides the commencement provisions in the Bill –
sections 10, 35(1), 36, 37, 38, 41, 43 and 52 and this Part come into operation on the day after the day on which this Act receives the Royal Assent.
sections 51(1) and 55 are deemed to have come into operation on the day on which section 5 of the National Parks (Amendment) Act 1998 came into operation (15 April 1999).
the remaining provisions of this Act come into operation on a day or days to be proclaimed but not later than by 1 December 2001.
Retrospective provisions
Clause 51(1) (in Part 6 of the Bill) amends section 18(1) of the Crown Land (Reserves) Act 1978 by removing a reference to the Director of Parks and Wildlife as a person who may have a Crown land reserve placed under their control and management.
Clause 55 (in Part 7 of the Bill) amends section 62(1A) of the Forests Act 1958 and substitutes the Secretary to the Department of Natural Resources and Environment (the Secretary) for the Director of National Parks and Wildlife (the Director), and also substitutes the description of certain land that is deemed to be protected land under that Act. These amendments were not made on 15 April 1999 when the Secretary took over the statutory functions of the Director and this amendment is retrospective to that date. The provision ensures that the protected public land was always accurately described.
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The Committee notes the comments in the explanatory memorandum concerning the retrospective provisions. The amendments appear to correct machinery of government measures not impinging on rights and freedoms within the meaning of section 4D(a) of the Parliamentary Committees Act 1968. |
Part 2
The Part makes amendments to the Water Industry Act 1994. The amendments for the most part remove references to Melbourne Parks and Waterways (MPW) and make other transitional machinery of government changes.
Clause 23 inserts new Parts 7 and 8 into the Water Industry Act 1994.
New Part 7 makes transitional provisions for MPW to be abolished and for its rights, property and assets to vest in the State. Liabilities and debts are transferred to the State and the State is substituted in legal proceedings and in contracts and agreements. A reference in any Act to MPW becomes a reference to the State.
New Part 8 comprising new sections 188 to 190 deal with land at Wattle Park. New section 188 repeals the Wattle Park Land Act 1991.
The land shown in Schedule 3 (clause 23) is surrendered to the Crown and is deemed to be unalienated land of the Crown, freed and discharged from all trusts, limitations, reservations, restrictions, encumbrances, estates and interests; and the land is deemed to be permanently reserved under section 4(1) of the Crown Land (Reserves) Act 1978 for public purposes, being in particular the purposes of conservation, recreation, leisure and tourism and the reservation may be dealt with in accordance with that Act.
New section 190 provides that the Part does not affect the status or continuity of any interest in, licence or right affecting, or arrangement or agreement relating to the Wattle Park Chalet; or any golf course or tennis court on the land set out in Schedule 3. On the coming into operation of the Part the Minister is substituted as a party for MPW in any lease, licence, agreement or arrangement.
Part 3
The part makes amendments to the Water Act 1989. The amendments are consequential to the abolition of MPW.
Part 4
Makes amendments to the Conservation, Forests and Lands Act 1987.
Clause 33 amends section 11 of the Conservation, Forests and Lands Act 1987 inserting further delegation powers as section 11(3AA) and 11(3C) providing –
(3AA) The Minister, by instrument, may delegate any of the Minister's powers, functions or duties under Division 4 of Part 4 of the Water Industry Act 1994 to Parks Victoria or an employee of Parks Victoria for the purpose of the performance or exercise by Parks Victoria or an employee of Parks Victoria of that power, function or duty in the course of carrying out duties under any agreement or arrangement relating to the management of waterways land (within the meaning of the Water Industry Act 1994) by Parks Victoria.
(3C) The Secretary, by instrument under seal, may delegate any of the Secretary's powers, functions or duties under regulations made under section 136, 149 or 184(2) and (3) of the Water Industry Act 1994 to Parks Victoria or an employee of Parks Victoria for the purpose of the performance or exercise by Parks Victoria or an employee of Parks Victoria of that power, function or duty in the course of carrying out duties under any agreement or arrangement relating to the management of reservoir parks land or waterways land (within the meaning of the Water Industry Act 1994) by Parks Victoria.
The Committee notes that the delegation provisions are appropriately defined and limited. |
The Part makes amendments to the Melbourne and Metropolitan Board of Works Act 1958.
The Part amends the Crown Land (Reserves) Act 1978 including the retrospective provision in clause 51(1) noted above.
Clause 48 amends section 5(4) by inserting additional purposes for which the Minister may compulsorily acquire land within the metropolitan area for the purposes of section 153A of the Water Industry Act 1994. This will enable land to be acquired for the purposes of public parks and public recreation.
Makes consequential amendments to a number of other Acts including the retrospective provision in clause 55 noted above.
The Committee makes no further comment.
Introduced: 30 August
2000
Second Reading Speech: 31 August 2000
House: Legislative Assembly
Minister: Hon. R. Hulls MLA with the Hon. B. Pike MLA
The purpose of the Bill is to –
encourage and facilitate disclosures of improper conduct by public officers and public bodies,
protect persons making those disclosures and others from reprisals,
provide for the matters disclosed to be properly investigated and dealt with and for other purposes.
Clause 2 provides the commencement provisions. Sections 1, 2, 114, 119 and this section come into operation on the day on which this Act receives the Royal Assent. The remaining provisions of this Act come into operation on 1 July 2001.
Clause 3 provides for important definitions used throughout the Act.
‘corrupt conduct’ includes the misuse of information or material acquired in the course of the performance of their functions as such (whether for the benefit of that person or body or otherwise); or a conspiracy or attempt to engage in corrupt conduct referred to in the definition section.
‘detrimental action’ includes action causing injury, loss or damage; and intimidation or harassment; and discrimination, disadvantage or adverse treatment in relation to a person's employment, career, profession, trade or business, including the taking of disciplinary action;
‘improper conduct’ means corrupt conduct; or a substantial mismanagement of public resources; or conduct involving substantial risk to public health or safety; or conduct involving substantial risk to the environment, that would, if proved, constitute a criminal offence; or reasonable grounds for dismissing or dispensing with, or otherwise terminating, the services of a public officer who was, or is, engaged in that conduct;
‘public body’ is widely defined and includes an Agency within the meaning of the Public Sector Management and Employment Act 1998, the Chief Commissioner of Police, a company all the shares or a majority of the shares in which are held by the State or another public body.
‘public officer’ includes a member of Parliament; a member of the police force; a protective services officer appointed under Part VIA of the Police Regulation Act 1958; a person who is employed in the office of the Chief Commissioner of Police and who is not a member of the police force; the holder of an office established by or under an Act to which the right to appoint is vested in the Governor in Council or a Minister; a member of the teaching service within the meaning of the Teaching Service Act 1981.
Exclusions of certain persons and bodies
Clause 4 lists the bodies and persons excluded from the operation of the Act. They include –
a court, board, tribunal, commission or other body presided over by a judge, magistrate or legal practitioner presiding as such by virtue of a statutory requirement and appointment;
a judge of the Supreme Court or of the County Court;
a master of the Supreme Court or of the County Court;
a magistrate;
a member of the Victorian Civil and Administrative Tribunal;
the Director of Public Prosecutions;
the Auditor-General;
the Ombudsman;
the Electoral Commissioner;
an officer of the Parliament or an employee within the meaning of the Parliamentary Officers Act 1975;
a judicial employee within the meaning of section 51 of the Public Sector Management and Employment Act 1998.
Part 2 – Disclosure of Improper Conduct
Clauses 5 to10
Who can make a disclosure?
A natural person who believes on reasonable grounds that a public officer or public body has engaged, is engaging or proposes to engage in improper conduct in their capacity as a public officer or public body; or has taken, is taking or proposes to take detrimental action in contravention of section 18 may disclose that improper conduct or detrimental action in accordance with this Part.
To whom is the disclosure made?
a disclosure may be made to the Ombudsman; or if the disclosure relates to a member, officer or employee of a public body, that public body.
if a disclosure relates to a member of Parliament it must be made to the President of the Legislative Council, if the member is a member of the Legislative Council; or the Speaker of the Legislative Assembly, if the member is a member of the Legislative Assembly.
a disclosure that relates to a councillor must be made to the Ombudsman.
a disclosure that relates to the Chief Commissioner of Police must be made to the Ombudsman or the Deputy Ombudsman.
a disclosure that relates to any other member of the police force may be made to the Ombudsman; or the Deputy Ombudsman; or the Chief Commissioner of Police.
How is a disclosure made?
A disclosure may be made orally or in writing; and must be made in accordance with the prescribed procedure. A person may make an anonymous disclosure.
What if the identity of the perpetrator is unknown?
A person may make a disclosure under this Part even if the person cannot identify the person or body to whom or which the disclosure relates.
What about a disclosure about past conduct?
A person may make a disclosure under this Part about conduct that has occurred before the commencement of this section.
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The Committee notes that a person may disclose conduct that has occurred before the commencement of the Act. The Committee has previously noted the distinction between legislation having a prior effect on past events and legislation basing future action on past events. The former may be considered an infringement on rights and freedoms within the meaning of section 4D(a)(i) of the Parliamentary Committees Act 1968. In the later case the Committee accepts that the provision has future operation only, even if the improper conduct on which it may depend has taken place in the past. |
Legal professional privilege.
Nothing in the Act entitles a person to disclose information that is the subject of legal professional privilege.
Part 3 – Protection of Whistleblowers
Immunity from prosecution
Clause 14 provides for an immunity from liability in the following terms –
A person who makes a protected disclosure is not subject to any civil or criminal liability or any liability arising by way of administrative process (including disciplinary action) for making the protected disclosure.
Confidentiality provisions do not apply
Clause 15 provides that a person who makes a protected disclosure does not by doing so commit an offence under section 95 of the Constitution Act 1975 or a provision of any other Act that imposes a duty to maintain confidentiality with respect to a matter or any other restriction on the disclosure of information; or breach an obligation by way of oath or rule of law or practice or under an agreement requiring him or her to maintain confidentiality or otherwise restricting the disclosure of information with respect to a matter.
Statutory defence of absolute privilege
Clause 16 provides that there is a defence of absolute privilege in a defamation proceedings in respect of the making of a protected disclosure.
No immunity in respect of persons own corrupt conduct
Clause 17 a person’s liability for his or her own conduct is not effected by the person’s disclosure of that conduct under the Act.
Clause 18 provides a protection from reprisals (detrimental action) against a person making a protected disclosure. The clause defines what is detrimental action. Penalty: 240 penalty units or 2 years imprisonment or both.
Statutory tort protection for whistleblower subject to detrimental action
Clause 19 a person who takes detrimental action against a whistleblower is liable in damages to that person.
Clause 20 a whistleblower may apply to the Supreme Court for an order requiring the person who has taken any detrimental action to remedy that action; or an injunction to stop an occurrence or further occurrence of such action.
Clause 21 the Supreme Court may grant a remedy for detrimental action or grant an injunction or an interim order or interim injunction.
Clause 22 other than for official purposes, such as criminal or disciplinary proceedings, it is an offence to disclose confidential information revealed in a protected disclosure nor reveal the identity of the person making the protected disclosure or the person(s) against whom a disclosure is made.
Clause 23 if the Ombudsman determines that a disclosure is not a public interest disclosure then further disclosures are not protected under the Act.
Part 4 – Ombudsman must determine whether disclosure is a public interest disclosure
Clause 24 the Ombudsman must determine whether the disclosure is a public interest disclosure.
Clause 26 certain complaints about police (if the complaint amounts to a public interest disclosure under the Act) are to be investigated under the Act and not the Police Regulation Act 1958.
Clause 27 if the disclosure under clause 26 does not amount to a public interest disclosure the complaint may be dealt with under the Police Regulation Act 1958 or the Ombudsman Act 1973.
Clause 30 if a public body concludes that a disclosure is not a public interest disclosure the public body must notify the person who made the disclosure of that conclusion; and advise the person that he or she may request the public body to refer the disclosure to the Ombudsman for a determination as to whether it is a public interest disclosure.
Clause 31 a person making a disclosure which a public body has determined is not a public interest disclosure, can require the public body to refer the matter to the Ombudsman.
Clause 32 the Ombudsman must within a reasonable time, notify the public body that referred the disclosure under section 31 of the determination as to whether a disclosure is a public interest disclosure.
Clauses 33 to 37 deal more fully with the question of determining whether a disclosure in relation to members of the police force is a public interest disclosure and the procedures and processes applying in such cases.
Part 5 – Investigations by the Ombudsman
Clause 38 sets out the Ombudsman's functions under the Act. Including the power to determine whether disclosures are public interest disclosures, investigate and monitor public body and Chief Commissioner investigations.
Clause 40 the Ombudsman may decide not to investigate a disclosed matter if it is frivolous or vexatious, or if the person making the disclosure had had knowledge for more than 12 months of the disclosed matter and failed to give a satisfactory explanation for the delay in making the disclosure. The Ombudsman must notify the person making the disclosure of his or her decision not to investigate the disclosed matter; and give reasons for that decision.
Clause 41 the Ombudsman may refer a matters for investigation otherwise than under the Act for example to the Chief Commissioner of Police, the Auditor-General, or a prescribed public body or the holder of a prescribed office.
Clause 48 the Ombudsman may request the Chief Commissioner of Police to make available members of the police force to assist the Ombudsman in the investigation of a disclosed matter. Clause 49 the Ombudsman may request a prescribed public body to make available staff to assist the Ombudsman in the investigation of a disclosed matter.
Clauses 51 and 52 investigations are to be private and no hearing is required to be held for the purposes of an investigation of a disclosed matter. However the Ombudsman may hold a hearing at his or her discretion.
Legal representation
Clause 53 the Ombudsman may determine whether or not any person may be represented by a legal practitioner or otherwise at a hearing in an investigation by the Ombudsman of a disclosed matter.
Clause 54 deals with how evidence may be given for the purposes of an investigation concerning a disclosed matter. The Ombudsman has the powers of a Royal Commissioner to send for documents and examine witnesses under oath
Clause 55 deals with the power to require answers and information to be given by members of the police force, in certain investigations of a disclosed matter relating to a member of the police force. The section provides –
(1) Without limiting section 54, in an investigation of a disclosed matter relating to a member of the police force, the Ombudsman may direct a member of the force to give any relevant information, produce any relevant document or answer any relevant question.
(2) A member of the police force who does not comply with a direction under sub-section (1) commits a breach of discipline under section 69 of the Police Regulation Act 1958.
(3) Except in proceedings for perjury, for a breach of discipline under section 69 of the Police Regulation Act 1958 or for failure to comply with a direction, any information or answer that is given, or document that is produced, pursuant to a direction under sub-section (1) is not admissible in evidence before any court or person acting judicially.
The Committee notes that provisions in clause 55 appear to abrogate the privilege against self-incrimination. The section would appear to subject a member of the police force to disciplinary action for refusing to answer questions or provide information or documents. Pursuant to section 76 of the Police Regulation Act 1958 such a breach of discipline may render a police officer liable to a fine of up to $4,000 or dismissal from the force. Further the Committee notes that such failure is an offence for failure to comply with a direction under the Act and also in respect of perjury. Whilst the Committee appreciates that there may be public policy reasons for this modified form of privilege against self-incrimination it will write to the Minister to seek further clarification as to why a police officers rights and freedoms should de dealt with in the manner contemplated by the proposed legislation. |
Confidential information
Clause 56 provides that it is not an offence to provide information for the purpose of an investigation by the Ombudsman of a disclosed matter that would otherwise be subject to confidentiality restrictions. The Crown cannot claim privilege in relation to such an investigation. However clause 10 does exempt material that is subject to legal professional privilege.
Certain documents exempt from operation of the Act
Clause 57 a person is not required or authorised by this Part to furnish any information or answer any question that relates to –
(a) any deliberation or decision of the Cabinet; or
(b) the deliberations of any committee consisting of members of Parliament if the committee is formed for the purpose of advising Ministers in respect of their deliberations; or
(c) any deliberations in private of –-
(i) a Parliamentary Committee or Specific Purpose Committee within the meaning of the Parliamentary Committees Act 1968; or
(ii) a committee consisting of members of Parliament established by resolution of either the Legislative Council or the Legislative Assembly, or the resolution of both the Legislative Council and the Legislative Assembly.
(2) A person is not required or authorised by this Part to provide or inspect a document that is an exempt document under section 28 of the Freedom of Information Act 1982 [i.e. Cabinet documents].
Search and entry powers
Clause 58 provides that the Ombudsman or any officer of the Ombudsman authorised by him or her for that purpose may at any reasonable time enter any premises occupied or used by a public officer or public body in their capacity as such; and inspect those premises or anything for the time being in them or on them.
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The Committee notes that these search and entry powers mirror the provision already existing in section 21 of the Ombudsman Act 1973 and that they are limited to search and entry of premises occupied by a public officer or a public body. The Committee notes that the terms ‘public officer’ and ‘public body’ are clearly defined in the Act. The Committee accepts the search and entry provisions are appropriate and are an exception to the normal requirement of entry by way of consent or judicial warrant. |
Person to be given a chance to comment before Ombudsman reports
Clause 59 in the course of an investigation, if it appears to the Ombudsman that there may be grounds for making an adverse report, the Ombudsman must before making the report, give the person or body an opportunity to comment on the matter.
Clause 60 provides that a person must not wilfully obstruct, hinder or resist the Ombudsman in the exercise of his or her powers, or wilfully fail to comply with any lawful requirement of the Ombudsman or, make a statement the person knows to be false or misleading in a material respect to the Ombudsman knowingly mislead or attempt to mislead the Ombudsman.
Clause 61 provides that the Ombudsman must not, in any report make any comment adverse to any person unless that person has been given an opportunity of being heard in the matter and their defence is fairly set out in the report.
Action after an investigation
Clauses 62 to 67 detail the action that may be taken after an investigation of a disclosed matter and the recommendations that may be made by the Ombudsman.
If the Ombudsman considers that insufficient steps have been taken within a reasonable time he or she may make a report to each House of Parliament.
Clause 67 the Ombudsman must inform the person who made disclosure to be informed of the result of the investigation or other action taken.
Part 6 – Investigations of disclosures referred to public bodies.
Clause 68 provides that a public body must establish procedures to facilitate the making of disclosures under Part 2; and for investigations of matters disclosed in public interest disclosures; and for the protection of persons from reprisals by the public body or any member, officer or employee of the public body because of disclosures.
Ombudsman’s guidelines
Clause 69 the Ombudsman must prepare and publish guidelines for procedures to facilitate the making of disclosures to public bodies under Part 2; and for investigations under this Part of matters disclosed in public interest disclosures; and for the protection of persons from reprisals by public bodies or members, officers or employees of public bodies because of disclosures.
Clause 72 a public body must investigate every disclosed matter that the Ombudsman has referred to the body to be investigated under this Part and a public body must refer the investigation of a disclosed matter to the Ombudsman if the public body considers its own investigation is being obstructed.
Clause 74 a person making a disclosure may require the Ombudsman to investigate the matter if the public body fails to investigate the matter; or the person is dissatisfied with the manner in which the public body is carrying out an investigation of the matter; or the person is dissatisfied with the steps taken by the public body after the investigation of the matter; or the public body fails to take steps in accordance with section 81 (actions that must be taken by a public body).
Clauses 75 to 77 if the Ombudsman is not satisfied with an investigation of a disclosed matter by a public body, the Ombudsman may take over the investigation. The Ombudsman may commence a new investigation; or complete the investigation; or refer the investigation back to the public body to investigate with recommendations about the future conduct of the investigation; or refer the matter to another public body to investigate.
Clause 79 to 83 deals with an investigation by a public body under the procedures established for the body. On completion of the investigation the body may take disciplinary proceedings or refer the matter to an appropriate authority. The body must report the findings to the Minister and take all steps to ensure that all remedial and preventative action is taken.
Part 7 – Investigations of disclosures referred to the Chief Commissioner of Police
Clauses 84 to 95 provides that the Chief Commissioner of Police must investigate every disclosed matter relating to a member of the police force that the Ombudsman has referred to the Chief Commissioner of Police to be investigated under this Part.
If a disclosed matter has been referred to the Chief Commissioner of Police to be investigated under this Part, the person who made the disclosure may request the Ombudsman to investigate the disclosed matter for the same types of reasons as listed in section 74.
If the Ombudsman is not satisfied with an investigation of a disclosed matter by the Chief Commissioner of Police under this Part, the Ombudsman may take over the investigation. In this event the Ombudsman may commence a new investigation; or complete the investigation; or refer the investigation back to the Chief Commissioner of Police to investigate with recommendations about the future conduct of the investigation; or refer the matter to another public body to investigate.
If a request is made or an investigation is taken over by the Ombudsman, the Ombudsman may also inquire into the conduct of the investigation by the Chief Commissioner of Police.
Power to require answers and information from members of the police force
Clause 90 provides that the Chief Commissioner of Police has power to require answers or information etc form members of the police force in certain investigations. The section provides –
(1) In an investigation of a disclosed matter relating to a member of the police force under this Part, the Chief Commissioner of Police may direct a member of the police force to give any relevant information, produce any relevant document or answer any relevant question.
(2) A member of the police force who does not comply with a direction under sub-section (1) commits a breach of discipline under section 69 of the Police Regulation Act 1958.
(3) Except in proceedings for perjury, for a breach of discipline under section 69 of the Police Regulation Act 1958 or for failure to comply with a direction, any information or answer that is given, or document that is produced, pursuant to a direction under sub-section (1) is not admissible in evidence before any court or person acting judicially.
The Committee notes that provisions in clause 90 appear to abrogate the privilege against self-incrimination. The section would appear to subject a member of the police force to disciplinary action for refusing to answer questions, provide information or documents to the Chief Commissioner of Police. The Committee notes that pursuant to section 76 of the Police Regulation Act 1958 such a breach of discipline may render a police officer liable to a fine of up to $4,000 or dismissal from the force. Further the Committee notes that such failure is an offence under the Act for failure to comply with a direction and also in respect to perjury. Whilst the Committee appreciates that there may be public policy reasons for this modified form of privilege against self-incrimination it will write to the Minister to seek further clarification as to why a police officers rights and freedoms should de dealt with in the manner contemplated by the proposed legislation. |
Within a reasonable time after completing an investigation of a disclosed matter under this Part, the Chief Commissioner of Police must inform the person who made the disclosure of the findings of the investigation and the steps (if any) taken under section 92.
The Chief Inspector must make a report to the Ombudsman on the findings of the investigation and the steps taken (if any).
If the Ombudsman disagrees with the steps taken by the Chief Commissioner the Ombudsman may refer the matter to the Police Minister. The Minister may then give further directions or may refer the matter to the Director of Public Prosecutions.
Part 8 – Investigations about Members of Parliament
Clauses 96 to 101 provides that if a person makes a disclosure to the President of the Legislative Council or the Speaker of the Legislative Assembly in respect to a Member of Parliament, the President or the Speaker may refer the disclosure to the Ombudsman for investigation. The Ombudsman must, within a reasonable time, notify the President of the Legislative Council or the Speaker of the Legislative Assembly of the determination in respect of the disclosure. After determination by the Ombudsman the Speaker or the President may refer the matter to the Ombudsman for investigation and the Ombudsman must investigate the disclosure and must report the findings of the investigation to the President of the Legislative Council or the Speaker of the Legislative Assembly.
| The Committee notes that by clause 6 of the Bill a disclosure that relates to a member of the Victorian Parliament must be made to the President of the Legislative Council or the Speaker of the Legislative Assembly (the Presiding Officers). The Committee notes that the Presiding Officers retain a discretion whether to refer a matter to the Ombudsman for investigation and also leave the question of any action that may arise as a consequence of the findings of such an investigation to the discretion of the respective Presiding Officer. |
The Part deals with annual reports in the Ombudsman Act 1973 and reports by councils relating to officers and employees of councils under the Local Government Act 1989.
Clause 106 provides that a person must not knowingly provide false information under this Act, intending that it be acted on as a public interest disclosure.
Clause 107 deals with the protection of the Ombudsman and officers employed by the Ombudsman. [Refer to section 85 Constitution Act 1975 statement below.]
Clause 108 with some limited exceptions, information is not admissible as evidence (if given by a party) in legal proceedings if it was obtained or received by the party in the course of or as a result of a public interest disclosure or its investigation.
Clause 109 exempts certain documents from the application of the Freedom of Information Act 1982 to the extent to which the document discloses information in relation to a disclosure or is likely to lead to the identification of a person who made a disclosure, or is likely to lead to the identification of a person against whom a disclosure is made.
Clause 110 is a section 85 Constitution Act 1975 declaration provision (see below).
Clause 112 provides that the Governor in Council may make regulations for or with respect to any matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act.
| The Committee notes the regulation making power and considers it to be appropriate to give effect to the purposes of the Act. |
Clause 113 substitutes a new section 29(3) of the Ombudsman Act 1973 to mirror the provisions of section 107(4) noted above.
Clause 114 inserts a new section 29A into the Ombudsman Act 1973 exempting certain documents in the possession of the Ombudsman from release under the Freedom of Information Act 1982.
Clause 115 is a section 85 Constitution Act 1975 declaration provision (see below).
Clause 116 inserts a new paragraph (ab) in section 69(1) of the Police Regulation Act 1958. The effect of this is to make it an offence to fail to comply with a direction under sections 55 and 90 of the Act. Section 55 and 90 deal with the power of the Ombudsman and the Chief Commissioner of Police respectively, to require answers or information to be given by a member of the force. Section 69 lists the matters which constitute a breach of discipline.
Clause 119 inserts a new section 86TA into the Police Regulation Act 1958 exempting certain documents relevant to a disclosure, in the possession of the Ombudsman or Deputy Ombudsman from release under the Freedom of Information Act 1982. The insertion mirrors the amendment made by clause 114 to the Ombudsman Act 1973.
1. Clause 110 declares that it is the intention of section 107 of the Act to alter or vary section 85 of the Constitution Act 1975.
Clause 107(1) provides an immunity whether on the ground of want of jurisdiction or any other ground in any civil or criminal proceedings for actions taken in good faith by the Ombudsman, the Deputy Ombudsman and any officer of the Ombudsman.
Clause 107(2) and (3) no civil or criminal proceedings may be brought against the Ombudsman, the Deputy Ombudsman or any officer of the Ombudsman in respect of any act without the leave of the Supreme Court and the Supreme Court may not give leave unless it is satisfied that there is substantial ground to believe that the person to be proceeded against has acted in bad faith.
Clause 107(4) provides that no order may be made either restraining or compelling the Ombudsman from carrying out an enquiry, an investigation, reporting on an investigation or making a recommendation in respect to an investigation.
Clause 107(5) the Ombudsman, the Deputy Ombudsman and any officer of the Ombudsman may not be called to give evidence in any court or in any legal proceedings or before the Police Appeals Board in respect of any matter coming to his or her knowledge in the exercise of his or her functions under this Act.
2. Clause 113 substitutes a new section 29(3) of the Ombudsman Act 1973 to mirror the provisions of section 107(4) noted above.
Clause 115 provides that after section 30 of the Ombudsman Act 1973 insert a new section 30A which declares that it is the intention of section 29(3) of the Ombudsman Act 1973, as substituted by section 113 of the Whistleblowers Protection Act 2000, to alter or vary section 85 of the Constitution Act 1975.
The Committee notes the comments in the Second Reading Speech –
I make the following two statements under section 85(5) of the Constitution Act 1975 of the reasons why it is the intention of the Bill to alter or vary section 85 of that act.
Clause 110 of the Bill states that it is the intention of clause 107 of the Bill to alter or vary section 85 of the Constitution Act 1975. Clause 107 is modelled on section 29 of the Ombudsman Act 1973 which has protected the Ombudsman in the exercise of general jurisdiction under the Act for over 25 years.
Clause 107 protects the Ombudsman, Deputy Ombudsman and officers of the Ombudsman from legal liability for actions taken in good faith under the Bill.
Where it is alleged that an act was done in bad faith, civil or criminal proceedings may be brought against those persons only with leave of the Supreme Court, which must be satisfied that there is substantial ground to believe that the person to be proceeded against has acted in bad faith. Clause 107(4) prohibits the bringing or granting of restraining orders against the Ombudsman or Deputy Ombudsman in relation to the carrying out of responsibilities under the Bill.
These provisions are required to ensure that the Ombudsman and Deputy Ombudsman are not frustrated in fulfilling their important functions under the Bill by constant applications to the courts. They operate to appropriately protect the Ombudsman, Deputy Ombudsman and staff of the office in the exercise of their powers under the Bill, so long as those powers are exercised in good faith. The protection is vital to promote the conducting of fearless investigations.
Clause 107(5) provides that neither the Ombudsman, Deputy Ombudsman nor any of the officers of the Ombudsman may be called to give evidence in relation to matters which have come to their knowledge in the exercise of functions under the Bill. This provision reaffirms the confidential nature of public interest disclosure investigations which is critical to balance the broad investigative powers that the Ombudsman, Deputy Ombudsman and staff members enjoy.
Clause 115 of the Bill inserts a new section 30A into the Ombudsman Act 1973. Proposed section 30A provides that it is the intention of section 29(3) of the Ombudsman Act 1973, as substituted by clause 113 of this Bill, to alter or vary section 85 of the Constitution Act 1975. Proposed section 29(3) re-enacts the existing section 29(3) to make similar provision to clause 107(4) of the Bill. Section 29(3) prohibits the bringing or granting of restraining orders against the Ombudsman in relation to the carrying out of responsibilities under the Ombudsman Act 1973.
Again, this provision is required to ensure that the Ombudsman is not frustrated in fulfilling his or her functions by constant applications to the courts.
| The Committee is of the view that the proposed section 85 provisions are appropriate and desirable in all the circumstances. |
The Committee makes no further comment.
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The right of one person to make use of the land of another, such as right of way, a right to natural light, a right to flow of air or water and a right to support (for a building). |
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The Explanatory Memorandum of the Bill incorrectly refers to section 150(5) of the principal Act. The reference should be to section 151(5) of the principal Act. |
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Source – Office of Chief Parliamentary Counsel. |
Scrutiny
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