The Committee makes no further comment.

Crimes (Amendment) Bill

Introduced: 4 October 2000
Second Reading Speech: 5 October 2000
House: Legislative Assembly
Minister: Hon R. Hulls MLA with the Hon. A. Haermeyer MLA.

Purpose

Content and Committee comment

Clause 2 the provisions in the Bill come into operation on the day after Royal Assent (the commencement day).

Extended definition of ‘rape’

Clause 4 provides an extended definition of rape by inserting new sub-sections (3) and (4) into section 38. The extended definition of rape will also carry a maximum penalty of level 2 imprisonment (25 years). The extended definition provides –

(3) A person (the offender) also commits rape if he or she compels a male person--

(a) to sexually penetrate the offender or another person with his penis, irrespective of whether the person being sexually penetrated consents to the act; or

(b) who has sexually penetrated the offender or another person with his penis, not to withdraw his penis from the offender or that other person, irrespective of whether the person who has been sexually penetrated consents to the act.

(4) For the purposes of sub-section (3), a person compels a male person (the victim) to engage in a sexual act if the person compels the victim (by force or otherwise) to engage in that act –

(a) without the victim's consent; and

(b) while being aware that the victim is not consenting or might not be consenting.

By virtue of new section 593(2), as inserted by clause 8 of the Bill, the amendments to section 38 apply only to offences alleged to have been committed after the commencement day.

The Committee notes the comments in the Second Reading Speech –

It is accepted that male rape is under-reported and under-recognised worldwide. It is also acknowledged that, for a variety of reasons, it is difficult for victims of rape to report their experiences.

The government is concerned to protect all victims of crime and encourages all victims of rape to come forward and seek assistance from the criminal justice system.

Whilst the traditional understanding of male rape (that is, being sexually penetrated by another person) is already provided for in the offence of rape, the extended definition of rape in this bill now provides for the situation where a man is compelled to penetrate another person against his will.

Currently, this behaviour can only be charged as the procuration of sexual penetration by threats or fraud, or indecent assault, each of which carries a maximum penalty of 10 years imprisonment. In line with all other conduct encompassed by the existing crime of rape, the conduct provided for in the extended definition of rape will also carry a maximum penalty of 25 years imprisonment.

The amendment acknowledges the invasive nature of this type of sexual assault and male victims of this type of sexual assault will now be acknowledged as true victims of rape.

Sexual penetration of a child under the age of 16

Clause 5 substitutes a new section 45 for the current sections 45 and 46. The effect will be to create a single indictable offence of sexual penetration of a child under the age of 16. The current provisions provide for 2 separate offences of –

• sexual penetration of a child under the age of 10 (s.45) and

• sexual penetration of a child between 10 and 16 (s.46).

The new provisions provide for 2 levels of aggravation within the one offence (new s.45) –

(a) where a court is satisfied beyond reasonable doubt that the child was, at the time of the offence, under the age of 10, to level 2 imprisonment (25 years maximum); or

(b) where a court is satisfied beyond reasonable doubt that the child was, at the time of the offence, aged between 10 and 16 and under the care, supervision or authority of the accused, to level 4 imprisonment (15 years maximum).

Where neither (a) nor (b) apply the offence carries a level 5 imprisonment (10 years maximum) penalty.

Circumstances where offence not applicable
If the child is aged between 10 and 16; and the persons taking part in the act are married to each other.

Consent not a defence unless
At the time of the alleged offence the child was aged 10 or older and the accused believed on reasonable grounds that the child was aged 16 or older; or the accused was not more than 2 years older than the child; or the accused believed on reasonable grounds that he or she was married to the child.

Effect of plea of ‘not guilty’ to circumstance of aggravation
An offender who pleads not guilty to an offence is to be taken to have pleaded guilty to the offence for the purposes of section 5(2)(e) of the Sentencing Act 1991¹ if he or she (i) took issue with a circumstance of aggravation; and (ii) did not take issue with any acts, facts, matters or circumstances relied upon by the prosecution to support a finding of guilt; and the circumstance of aggravation is not proved.

The Committee notes the comments in the Second Reading Speech –

Creating one offence of sexual penetration of a child under 16.

A legal loophole currently exists which can result in a person escaping conviction for the offence of sexual penetration of a child where there is uncertainty about whether the offence was committed before or after the child turned 10.

There are currently two separate offences for sexual penetration of a child -- one applies where the child is under 10 and the other where the child is aged between 10 and 16. Sometimes a child cannot recall whether the offence occurred before or after they turned 10. This is particularly the case where they have been subjected to many sexual offences.

If it is not known whether the child was under or over 10 years of age at the time of the offence, it will not be possible to prove the offence. This bill overcomes this problem by joining the two offences to create a new single offence of sexual penetration of a child under 16.

The existing penalty structure has been retained. Where the child is aged under 10 at the time of the offence, a maximum penalty of 25 years imprisonment applies. Where the child is aged between 10 and 16 and was under the care, supervision or authority of the offender at the time of the commission of the offence, a maximum penalty of 15 years imprisonment applies. A maximum penalty of 10 years imprisonment applies in any other circumstance.

Where an accused pleads not guilty to the offence, it will continue to be a matter for the jury to determine any issue concerning whether:

Child Pornography

Clause 6 substitutes a new section 70(1) increasing the penalty for the possession of child pornography to a level 6 imprisonment (5 years maximum) penalty. The current section provides a level 7 (2 years maximum) penalty. By virtue of new section 593(3) as inserted by clause 8 of the Bill the new penalty only applies to offences alleged to have been committed after the commencement day.

Clause 7 makes transitional arrangements following the substitution of the one offence in the new section 45 for the previous 3 offences in section 45 and 46.

Clause 8 inserts a new section 593(5) of the Act providing that from any time on or after the commencement day a charge or presentment may be filed against a person for an offence against section 45 of this Act, as substituted by the Bill, irrespective of whether the offence is alleged to have been committed before, on or after the commencement day provided it is not alleged to have been committed before 5 August 1991.

Clause 9 makes consequential amendments to the Education Act 1958 relating to the restructuring of the offence in the new section 45 and the omission of the old section 46.

Clause 10 makes consequential amendments to the Sentencing Act 1991 to ensure that convictions under current sections 45 and 46 of the Act continue to be considered as serious sexual offences for the purposes of that Act.

The Committee makes no further comment.

Duties Bill

Introduced: 4 October 2000
Second Reading Speech: 5 October 2000
House: Legislative Assembly
Minister: Hon J. Thwaites MLA with the Hon. R. Hulls MLA.

Purpose

Content and Committee comment

Clause 4 provides that the Act is divided into Chapters, Parts and Divisions. This is the first Act since the passage of the Interpretation of Legislation (Amendment) Bill² to be divided into Chapters as well as Parts and Divisions.

Clause 5 the Act is to be read in conjunction with the Taxation Administration Act 1997 which provides for the administration and enforcement of the Act and other Victorian taxation laws.

Chapter 2 – Transactions concerning dutiable property

Clauses 7 to 69 the chapter deals with dutiable property and provides that a dutiable transaction may be effected or evidenced wholly in writing; or partly in writing and partly orally; or wholly orally as evidenced by whole or part performance. A dutiable transaction may be effected or recorded by any means, including electronic means.

The Chapter defines –

• what is "dutiable property";

• when liability for duty arises;

• who is liable to pay the duty; and

• when the duty must be paid.

The rates of duty are set out in Part 3 of the Chapter.

Concessions and exemptions from duty are set out in Part 5 of the Chapter.

Part 2 deals with what is ‘dutiable value’ of dutiable property that is the subject of a dutiable transaction and defines such terms as the "unencumbered value" of dutiable property.

Part 5 deals with exemptions and concessional rates of duty such as in a case of change of trustees and property passing to a beneficiary under a trust.

Division 2 deals with special exemptions for certain superannuation instruments and transfers from one complying superannuation fund to another.

Division 3 deals with other general exemptions and concessions such as –

• in respect to deceased estates, marriage and de facto relationship transfers, a religious, charitable or educational purpose;

• a corporation or body of persons established for a religious, charitable or educational purpose;

• and a friendly society, co-operatives that have as its primary activity the providing of any community service or benefit.

Exemptions for government bodies and diplomats

No duty is chargeable in respect of a transfer of dutiable property to –

(a) the Crown in right of Victoria; or

(b) a Council within the meaning of the Local Government Act 1989; or

(c) the Municipal Association of Victoria; or

(d) the Western Metropolitan Market Trust; or

(e) an authority within the meaning of the Water Act 1989; or

(f) any person on behalf of any of the above persons.

(2) No duty is chargeable in respect of a transfer of dutiable property to –

(a) the representative in Australia of the government of another country; or

(b) a foreign consul; or

(c) a trade commissioner of any part of the British Commonwealth.

The Division also deals with duties in respect to bankruptcies and winding-up situations.

Division 4 provides exemptions for certain Crown grants, public rights of way, government bodies and defence service homes.

Joint tenants and tenants in common

No duty is chargeable under this Chapter in respect of a transfer of dutiable property by joint tenants to themselves as tenants in common in equal shares, or by tenants in common in equal shares to themselves as joint tenants.

Transfers of farms to relatives or charities

No duty is chargeable in respect of a transfer of dutiable property if the Commissioner is satisfied as to certain matters referred to in clause 56.

Division 5 deals with pensioner and first home owner exemptions and concessions.

Double duty for false or misleading statements

Clause 64 provides that if a person represents to a tax officer that duty is not chargeable, or that the person is entitled to a concession or refund of duty, because of this Division; and is convicted of an offence against section 57 of the Taxation Administration Act 1997 as a consequence the person is liable, by way of further penalty, to pay an amount equal to double the amount of duty that, but for the offence, would have been payable, less any amount of duty that the person did pay.

Division 6 deals with exemptions and concessions in relation to marketable securities.

Chapter 3 – Certain transactions treated as transfers

Clauses 70 to 103

This Chapter charges duty on certain transactions that are not dutiable transactions under Chapter 2.

Part 2 Division 1 deals with ‘land-rich’ private corporations. Division 2 concerns acquisitions of interests in private corporations. Division 3 deals with the charging of duty when liability arises. Part 4 deals with the allotment of shares by direction and how liability to pay duty arises.

Chapter 4 – Financial sector (transfers of business)

Clauses 104 to 109

A liability for duty charged by the Chapter arises when the dutiable property becomes the property of the receiving body and duty chargeable under this Chapter is payable by the receiving body.

Duty is not chargeable under this Chapter in respect of a transfer of dutiable property if the transfer is of a class that, under guidelines approved for the time by the Minister, is a class of transfer in respect of which duty is not chargeable.

Chapter 5 – Lease instruments

Clauses 110 to 124

The Chapter charges duty on a lease instrument, being an instrument that effects a lease (as defined by clause 111). The Chapter deals with how duty is charged on a lease; who is liable to pay duty; rates of duty; when the duty is payable, and leases that are exempt from duty.

Chapter 6 – Hire of Goods

Clauses 125 to 147

The Chapter charges duty on the hire of goods if the person hiring out the goods is a commercial hire business. A "commercial hire business" is defined as a person who hires out goods as a business whether or not the hiring out of the goods is the principal business or is ancillary to some other form of business, and whether or not any such principal or ancillary business is carried on wholly or partly outside Victoria.

A hire of goods may take any form. It is immaterial whether or not a hire of goods is effected or evidenced by an instrument in writing. The Chapter defines ‘goods’ and ‘hire of goods’; provides for exclusions and sets the rate of duty.

A commercial hire business must be registered under the Part.

Chapter 7 – Mortgages

Clauses 148 to 174

The Chapter charges duty on instruments that are mortgages. The Chapter defines ‘mortgage’ for the purpose of the Act and sets out who is liable to pay the duty, when liability arises, when duty must be paid, concessional rates for certain exempt mortgages.

Farm machinery and commercial vehicles

Mortgage duty is not chargeable on so much of an advance to a natural person for the acquisition of farm machinery or a commercial vehicle as secured by a mortgage.

Chapter 8 – Insurance

Clauses 175 to 213

The Chapter charges duty in respect of insurance. Part 2 deals with general contracts of insurance (defined by the Act) (whether or not it also effects other kinds of insurance). Part 3 charges duty on policies of life insurance. Part 4 charges duty in respect to the motor vehicle insurance contracts under the Transport Accident Act 1986.

The Chapter sets out the rate of duty, by whom and when the duty is payable. The Chapter sets out what contracts of insurance are exempt from duty.

Chapter 9 – Motor vehicle duty

Clauses 214 to 240

The Chapter charges duty on an application for registration of a motor vehicle under the Road Safety Act 1986 if the vehicle has not previously been registered under that Act; or the person in whose name the vehicle is to be registered differs from the person in whose name the vehicle was last registered under that Act.

The Chapter sets out who is liable to pay the duty, when duty is payable and the rate of duty. For the purposes of the Chapter, Part 2 also deals with the registration of used car dealers.

The Chapter also sets out the exceptions where duty is not payable under the Chapter.

Chapter 10 – Miscellaneous duties

Clauses 241 to 248

The Chapter deals with payment of duty on cattle, calves or cattle carcases and establishes the rate of duty; imposes and sets the rate of duty on the sale of sheep and goats; and imposes and sets the rate of duty on the sale of pigs.

Chapter 11 – General exemptions from duty

Clauses 249 to 251

No duty is chargeable in respect of a mortgage given to or executed by the Commissioner to secure the payment of tax as a result of the Commissioner postponing or extending the time for the payment of tax. Duty is not payable under an approved (by the Minister) bona fide corporate reconstruction.

Chapter 12 – Administration and Enforcement

Clauses 252 to 281

Deals with the use of stamps for payment of duty, refunds for spoilt stamps, ineffective instruments, and refunds and licences to deal in stamps.

An instrument that contains, gives effect to, or relates to, several distinct matters or transactions is to be separately and distinctly charged with duty in respect of each such matter or transaction, as if each matter was expressed in a separate instrument.

An instrument that effects a dutiable transaction or is chargeable with duty under this Act is not available for use in law or equity for any purpose and may not be presented in evidence in a court or tribunal exercising civil jurisdiction unless it is duly stamped; or it is stamped by the Commissioner or in a manner approved by the Commissioner.

The Commissioner may impound any instrument that ought to be but is not stamped or is insufficiently stamped and may retain any impounded instrument until the duty or any interest or penalty tax, or all such amounts, have been paid.

The Supreme Court, on application by the Commissioner, may grant an injunction restraining a person who is required to be registered under this Act in respect of a business carried on by the person from carrying on such a business unless the person is so registered.

From time to time, the Governor in Council, by notice published in the Government Gazette, may direct that a fee or charge payable under an enactment to the State, a representative of the State or a court is to be paid in stamps, money or another prescribed manner.

If the Governor in Council directs that a fee or charge is to be paid in stamps, an instrument that evidences the payment of the fee is not available for use in law or equity for any purpose and may not be presented in evidence in a court or tribunal exercising civil jurisdiction unless it is duly stamped; or it is stamped by the person receiving the fee or charge in a manner approved by that person.

Chapter 13 – General

283. Regulations

(1) 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 that is necessary to be prescribed to give effect to this Act.

(2) A regulation may create an offence punishable by a penalty not exceeding 20 penalty units.

Chapter 14 – Repeals, Consequential Amendments and Transitional provisions

Clause 284 repeals the Stamps Act 1958.

Clause 285 provides that an Act specified in the heading to an item in Schedule 1 is amended as set out in that item.

Clause 286 provides for transitional provisions as set out in Schedule 2.

The Committee makes no further comment.

Fisheries (Amendment) Bill

Introduced: 4 October 2000
Second Reading Speech: 5 October 2000
House: Legislative Assembly
Minister: Hon. S. Garbutt MLA with the Hon. K. Hamilton MLA.

Purpose

Content and Committee comment

Purpose

Content and Committee comment

Clause 2 the provisions in the Bill come into operation on proclamation but not later than by 1 August 2001.

Clause 3 substitutes a new section 32 in the Act and provides that after considering a nomination for inclusion in the Heritage Register, the Executive Director may recommend to the Heritage Council that the place or object be included in the Heritage Register and the category or categories in which it should be included; or that the place or object should not be included in the Heritage Register.

If the Executive Director recommends to the Heritage Council that a place not be included in the Heritage Register, the Executive Director may refer the nomination to the relevant planning authority or the Minister administering the Planning and Environment Act 1987 for inclusion of the place in a planning scheme.

Clause 4 amends section 34 of the Act to provide that if the Executive Director recommends to the Heritage Council that a place or object be included in the Heritage Register, the Executive Director must give a statement to the owner of the place or object; and the nominator of the place or object; and the relevant municipal council.

The statement must advise the owner of his or her right to make a submission on the recommendation to the Heritage Council at any time within that period of 60 days; and the right to request a hearing in relation to that submission.

Clause 5 inserts a new section 34A and mirrors the intent of clause 4 where there is a statement of recommendation that a place or object should not be registered.

Clause 7 substitutes a new section 36 dealing with the obligations of the owner of a place or object to advise the Executive Director of any works that are being carried out in relation to the place or object at the time the statement is given; and any application for a planning permit or a building permit or for an amendment to a planning permit that has been made in relation to the place, but not determined at the time the statement is given; and any other activities that are being carried out or are proposed to be carried out in relation to the place or object at the time the statement is given.

Clause 8 substitutes a new section 38(1)(b) to provide that any person may make a written submission to the Council in relation to a recommendation of the Executive Director that a nominated place or object should not be included in the Heritage Register.

Clause 12 amends section 52(1) of the Act to provide that where the owner of a registered place or object enters into a contract of sale for the whole or any part of the place or object, must notify the Executive Director of the contract.

Clause 14 amends section 73 by inserting an additional section (1A) providing that in determining an application for a permit, the Executive Director may consider the extent to which the application, if approved, would affect the cultural heritage significance of any adjacent or neighbouring property that is subject to a heritage requirement or control in the relevant planning scheme; or included in the Heritage Register; and any other relevant matter.

Clause 15 inserts a new subsection (2) into section 84 of the Act. Section 84 is a delegation provision and after amendment (italics) will provide –

(1) The Executive Director, with the consent of the Minister, may, by instrument, delegate to the responsible authority for the area in which the place or object is situated any of the Executive Director’s functions under this Division in relation to that place or object other than this power of delegation.

Despite sub-section (1), a responsible authority, having first obtained the written consent of the Executive Director, may, by instrument, sub-delegate to an officer of the responsible authority any of the Executive Director's functions under this Division which have been delegated to the authority.

The Division the delegation power deals with applications, permits, exemptions and appeals.

Clause 17 inserts a new section 118A allowing the Executive Director to issue a permit for the use of historic shipwreck relics for the purposes of study, conservation or exhibition.

Clause 18 inserts a new section 126A providing that the Executive Director may issue a permit for the use of archaeological relics for the purposes of study, conservation or exhibition.

Search and Seizure Powers

Clause 20 inserts new sections 150A to 150D dealing with search warrants and powers of inspectors in respect to a residence. The current section 150 provides for powers of entry generally in respect to a building or land (not being a residence). Section 50 currently makes no provision for entry to a residence other than under section 150(2) which permits entry by consent in writing of the occupier.

New section 150A provides that a magistrate may issue a search warrant if satisfied, that there are reasonable grounds for suspecting that there is, or may be within the next 72 hours, a particular thing that may be evidence of the commission of an offence against this Act or the regulations.

The rules, forms and procedures found in the Magistrates' Court Act 1989 are to be observed with respect to search warrants issued under the Act.

New section 150B provides that before executing a search warrant, the inspector must announce that he or she is authorised by the warrant to enter the place and give any person at the place an opportunity to allow entry to the place. The inspector or a person assisting the inspector need not make a prior announcement if he or she believes on reasonable grounds that immediate entry to the place is required to ensure the safety of any person; or that the effective execution of the search warrant is not frustrated.

New section 150C provides that the inspector must-identify himself or herself to that person by producing his or her identity card for inspection by that person; and give to that person a copy of the execution copy of the warrant.

New section 150D provides that an inspector 150A may search inspect and take photographs (including video recordings), or make sketches, of the place or the thing; and inspect and make copies of, or take extracts from, the thing if it is a document.

Clause 22 inserts new section 159A dealing with confidentiality providing that an inspector must not, except as provided under the section, give to any other person, whether directly or indirectly, any information gained in the exercise of the powers as an inspector.

The Committee makes no further comment.

Mineral Resources Development (Amendment) Bill

Introduced: 4 October 2000
Second Reading Speech: 5 October 2000
House: Legislative Assembly
Minister: Hon. S. Garbutt MLA with the Hon. K. Hamilton MLA.

Purpose

Content and Committee comment

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 40 inserts a new section 132C and declares that it is the intention of sections 93(19A) and 93(19B) as inserted by clause 31; and of sections 93A, 93B and 93C as inserted by clause 32 to alter or vary section 85 of the Constitution Act 1975.

I make the following statements in respect of section 85 of the Constitution Act 1975 concerning the reasons why clauses 31 and 32 of the Bill, which respectively alter or amend section 93 of the Transport Accident Act 1986 and insert new sections 93A, 93B, 93C and 93D into that act, alter or vary section 85 of the Constitution Act 1975.

Clause 31 of the Bill inserts new subsections in section 93 of the Act to impose limited conditions on the determination of serious injury by a court, including the Supreme Court. These new subsections require that a determination of serious injury must be made on the balance of probabilities, and that the monetary thresholds and statutory maximum amounts of damages must be disregarded when making a serious injury determination.

These conditions, which have the effect of limiting the jurisdiction of the Supreme Court, are necessary to clarify the standard of proof required and the issues to be considered by the court in determining serious injury. The amendments are consistent with the requirements made of the court in respect of Workcover cases. The government believes that a consistent approach to these issues is highly desirable.

Clause 32 of the Bill inserts new sections in the act that mirror provisions in the legislation covering the Workcover scheme in relation to appeals concerning serious injury.

New section 93A has the effect of permitting an appeal as of right to the Court of Appeal from a decision granting or refusing leave made on an application under section 93 of the Act.  Without this amendment, an appeal to the Court of Appeal from such a decision could only be made by leave of the Court of Appeal.

New section 93B requires that, on the hearing of an appeal from a decision on an application under section 93, the Court of Appeal shall decide for itself whether the injury is a serious injury on the evidence and other material before the judge who heard the application and on any other evidence which the Court of Appeal may receive under any other act or rules of court.

New section 93C requires that the reasons given by the court -- which could be the Supreme Court -- in deciding an application under section 93 shall not be summary reasons but shall be detailed reasons which are as extensive and complete as the court would give on the trial of an action.

The Committee notes that the reference to new section 93D appears to be in error as that new section is inserted by clause 33. Further clause 33 is not referred to in clause 40 which declares which sections are intended to vary or alter the Constitution Act 1975. The Committee will draw the attention of the Minister to this matter. Otherwise the Committee is of the view that the proposed section 85 provision is appropriate and desirable in all the circumstances.

Accident Compensation Act 1985

Clauses 41 to 44 amend the Accident Compensation Act 1985.

Clause 43 inserts a new section 2(7A) of the Accident Compensation (Common Law and Benefits) Act 2000 which amended the Accident Compensation Act 1985. New section 2(7A) amends the commencement provision of section 19 of that Act to the day after the Royal Assent of this Bill. Section 19 inserted a new section 134AG which allows the Governor in Council by Order to make legal costs orders applying to new section 134AB prescribing costs that may be recovered by a legal practitioner acting on behalf of a worker in any claim, application or proceedings under section 134AB.

[Refer to Alert Digest No. 5 of 2000 and to Minister’s Second Reading Speech of 13 April 2000 and to the section 85 Constitution Act 1975 statement below, concerning the further amendment to that provision].

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 44 inserts a new section 252E into the Accident Compensation Act 1985 and declares that it is the intention of section 134AG as amended by clause 43 of the Bill to alter or vary section 85 of the Constitution Act 1975.

The Committee notes the comments in the Second Reading Speech –

Section 19 of the Accident Compensation (Common Law and Benefits) Act 2000 was enacted earlier this year but has yet to come into effect. It inserts a new section 134AG into the Accident Compensation Act 1985 that, as originally enacted, empowers the Governor in Council to issue orders in council, known as legal costs orders, specifying the legal costs that may be recovered by a legal practitioner acting on behalf of a worker in respect of any claim, application or proceedings under new section 134AB and prescribing or specifying any matter or thing required to give effect to the legal costs order.

Clause 43 of this Bill amends section 19 of the Accident Compensation (Common Law and Benefits) Act 2000 by extending it to cover claims, applications or proceedings under section 135, 135A or 135B of the Accident Compensation Act 1985.

The government believes that it is highly desirable that there is a consistent approach to the recovery of legal costs by practitioners across all common-law claims, applications and proceedings, regardless of the particular sections of the Accident Compensation Act under which those proceedings have been brought.

New section 134AG and any legal costs order made under that section will have full force and effect notwithstanding anything to the contrary in the Legal Practice Act 1996, the Supreme Court Act 1986 or the County Court Act 1958 or in any regulation, rules, order or other document made under any of those Acts.

The reason for this limitation of the jurisdiction of the Supreme Court is that the government wishes to make provision for a more direct mechanism for regulating legal costs recoverable by a practitioner acting on behalf of workers in relation to the operation of the common-law provisions of the Accident Compensation Act.

With the support and assistance of the authority’s board of management, the government has put in place programs to control the administrative costs of the Workcover scheme and to control, and hopefully reduce, the total costs of benefits payments by reducing the numbers and severity of workplace injuries. Control of legal costs within the Workcover scheme is another essential component of the government’s overall program to minimise costs. Controlling all of Workcover’s costs is the key to Victoria having a fully funded scheme that combines adequate compensation to injured workers with low employer premiums.

The Committee is of the view that the proposed section 85 provision is appropriate and desirable in all the circumstances.

Clause 45 inserts a definition in section 3(1) of the Dangerous Goods Act 1985 for ADG Code meaning – the Australian Code for the Transport of Dangerous Goods by Road and Rail (Sixth edition or a later prescribed edition), as amended from time to time, and makes other consequential and transitional amendments.

The Committee makes no further comment.

Transport (Miscellaneous Amendments) Bill

Introduced: 3 October 2000
Second Reading Speech: 4 October 2000
House: Legislative Council
Minister: Hon. C. Board MLC.

Purpose

The purpose of the Bill is to –

• amend the Transport Act 1983;

• facilitate the investigation of railway accidents;

• generally improve the operation of that Act; and

• amend the Rail Corporations Act 1996 (the Act) to improve the operation of the access regime relating to rail and tram transport services.

Content and Committee comment

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

Part 2 – Transport Act 1983

Self-incrimination

Clause 3 substitutes a new section 129S in the Transport Act 1983 and provides –

(1) A person required to provide any information, to give any evidence, or to produce any document or thing, under this Subdivision or Subdivision 6 is not excused from providing the information, giving the evidence or producing the document or thing on the ground that the information, evidence, document or thing may tend to incriminate him or her.

(2) Any information provided, evidence given, or document or thing produced, by a person under this Subdivision or Subdivision 6 is not admissible against him or her in any proceedings, whether civil or criminal, nor can it be made the ground of any prosecution, action or suit against him or her other than in proceedings for perjury or giving false information.

The existing section 129S provides protection against self-incrimination without any form of limitation.

The Committee notes the comments in the Second Reading Speech –

That report³ was critical of the Victorian rail safety regime in the Transport Act in that, unlike the relevant legislation in other States, section 129S of the Act entitles a person to refuse or fail to give information if the giving of the information would tend to incriminate the person. No other State's legislation affords the same protection in response to requests for information during an investigation of a rail incident or accident. Instead, other States' legislation generally provides that self-incrimination is not a reasonable excuse for failing to give information, and that information given is not admissible in evidence against the person in any civil or criminal proceedings (other than proceedings arising out of the false or misleading nature of the answer). In response to this criticism, clause 3 of the Bill will amend section 129S to bring it into line with the legislation in other States.

The Committee notes new section 129S requires a person to give evidence and or provide information and documents notwithstanding any tendency to self incriminate the person giving the evidence or supplying the information or documents. The Committee notes that any self-incrimination is limited to proceedings for perjury or the giving of false information. The Committee also notes the policy reasons for this modification of the privilege against self-incrimination mentioned in the Second Reading Speech. The Committee draws Parliament’s attention to the provision.

Clause 4 amends section 129U of the Act to ensure that the person conducting an inquiry into a railway accident or incident has appropriate powers to ensure that all relevant material or information is investigated.

In conducting an inquiry, the person or body required to conduct the inquiry has the powers conferred by sections 14, 15, 16, 20, 20A and 21A of the Evidence Act 1958Πon a board appointed by the Governor in Council. In conducting an inquiry, the person or body required to conduct the inquiry, must act fairly and according to equity and good conscience without regard to technicalities or legal forms; and is not required to conduct the inquiry in a formal manner; and is not bound by rules or practice as to evidence but may inform herself, himself or itself in relation to any matter in any manner that he, she or it thinks fit.

ΠPower to send for persons and papers, examine under oath, punish for failure to attend or refuse to give evidence and privileges and immunities in relation to inquiries.

Detention and arrest

Clause 7 amends section 219AA of the Transport Act 1983 and inserts new sections 219AA(5), (6) and (6A) to clarify the circumstances in which an alleged offender may be detained, released into the charge of a member of the police force, or brought before a bail justice or a magistrate.

(5) If an alleged offender is arrested in respect of a summary offence, he or she may only be detained for so long as the reason for the arrest under sub-section (3) continues. The person detaining the alleged offender must release the alleged offender as soon as the reason ceases to exist, regardless of whether or not the alleged offender has been charged with the offence.

(6) If the person responsible for arresting an alleged offender is not a member of the police force or an authorised person, the person must give the alleged offender into the charge of a member of the police force or an authorised person as soon as is practicable after arresting the alleged offender (unless sub-section (5) applies).

(6A) If a member of the police force or an authorised person arrests an alleged offender or is given charge of an alleged offender, the member or authorised person must convey the alleged offender as soon as is practicable before a bail justice or the Magistrates' Court to be dealt with according to law (unless sub-section (5) applies).

Part 3 – Rail Corporation Act 1996

Clause 14 substitutes new sections 38O, 38OA, 38OB and 38OC in Part 2A (Access regime – rail infrastructure - financial and business information of operators).

New section 38OC deals with self incrimination and provides –

If a person is required to provide information or a document to the Office under this Part, it is a lawful excuse for the person to fail to comply with the requirement if compliance may tend to make the person liable to a penalty for any other offence.

Clause 16 inserts a new section 38PA into the Act providing a right to appeal against a disclosure notice. A person who is given a notice under section 38P(2)(c) or (d) and who is aggrieved by a decision of the Office to disclose information or the contents of a document may appeal against the decision under the relevant provisions of the Office of the regulator-General Act 1994.

The Committee makes no further comment.

Wrongs (Amendment) Bill

Introduced: 4 October 2000
Second Reading Speech: 5 October 2000
House: Legislative Assembly
Minister: Hon R. Hulls MLA with the Hon. A. Haermeyer MLA.

Purpose

The purposes of the Bill are to amend the Wrongs Act 1958 (the Act) with respect to the apportionment of damages in claims arising from breach of contract. The Bill is a result of the impact of the decision of the High Court of Australia in Astley v Austrust Limited.⁴ In Astley the High Court held ‘that an award of damages for breach of contract may not be reduced under apportionment of liability legislation such as the Wrongs Act 1936 (S.A.), s.27A(3)⁵ for contributory negligence where the plaintiff has sued in contract whether or not the plaintiff has or could have sued in tort’.

The Committee notes the comments in the Second Reading Speech –

Prior to the High Court's decision in Astley v. Austrust, the authoritative interpretation was that these provisions applied in cases of concurrent liability in tort and contract. The common law recognises that a person may owe a duty of care both in tort and in contract in a range of circumstances -- for example, in the relationship between an employer and an employee. Similarly, a professional adviser will usually be found to be concurrently liable for negligence in tort and breach of contract.

In Astley, the High Court held that the equivalent provisions in the South Australian Wrongs Act were not applicable to actions in contract. That decision is now the authoritative interpretation of the Victorian provisions.

The High Court's decision now means that if a plaintiff can frame their claim solely in contract, their own contributory negligence will not be a factor. Although the plaintiff may have been guilty of contributory negligence, they will be entitled to recover 100 per cent of their loss.

That outcome is plainly unfair. Whilst it might be thought that the effect of this decision is limited to litigants, there is a wider negative impact. If higher damages are awarded against individuals, the result is likely to be higher insurance premiums for all.

The High Court acknowledged in its judgment that governments may wish to respond by amending the legislation.

Content and Committee comment

Clause 2 the amendments in the Bill come into operation on Royal Assent (the commencement day).

Clause 4 inserts a new definition of ‘wrong’ in section 25 of the Act to include a breach of contract that is concurrent with a duty of care in tort.

Clause 5 inserts a new section 26(1) into the Act and amends the apportionment provisions to clarify that a court should reduce a plaintiff’s damages arising from a wrong, if the plaintiff is guilty of contributory negligence. This is the fundamental clarification contained in the Bill and is intended to place Victorian litigants in the position they were in prior to the High Court's decision.

Clause 6 contains a number of consequential amendments that are required following the changes made in clauses 4 and 5.

Clause 8 inserts a new section 28AA by way of transitional provisions and provides that the amendments made by sections 4, 5 and 6 must be taken to apply to wrongs that occurred before the commencement day as if those amendments had been in force when the wrong occurred.

The Part of the Act, as in force before the commencement day continues to apply to a wrong about which a court has, before that commencement, given judgment or made a decision (including a judgment or decision about liability only), whether or not an appeal has been made against that judgment or decision before that commencement, or is made on or after that commencement; or the persons responsible for the damage have, before that commencement, entered into an agreement to settle claims arising from the wrong (including an agreement about liability only).

The Committee notes the comments in the Second Reading Speech –

Clause 8 is the other important provision in the Bill. It sets out how the Bill will take effect. The difficult question where a clarifying amendment is made is whether the amendment should have retrospective effect. Importantly, the government sought the views of the legal profession on this issue and they support the form of clause 8.

Clause 8 provides that the clarifying amendments made in clauses 4, 5 and 6 apply to wrongs that occurred prior to the commencement of this Bill. However, the new provisions will not apply where a court has given judgment in a matter or where the parties themselves have agreed to settle a matter. This is an appropriate response and will ensure that the effect of the High Court's decision is quarantined as much as possible.

The Committee notes the clarifying nature of the amendments made by the Bill in the sense that they state the law in Victoria as it was thought to exist prior to the High Court ruling in Astley v Austrust Limited. The Committee therefore considers the transitional arrangements provided in new section 28AA are an appropriate response to the substantive amendments made by the Bill by clauses 4, 5 and 6.

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 7 inserts a new section 27 into the Act declaring that it is the intention of section 26, as amended by clause 5 of the Bill to alter or vary section 85 of the Constitution Act 1975.

The Committee notes the comments in the Second Reading Speech –

I now wish to make a statement under section 85 of the Constitution Act 1975 as to the reasons for altering or varying the operation of that section. Clause 7 of the Bill inserts a new section 27 in the principal act, which states that it is the intention of section 26, as amended by this Bill, to alter or vary section 85 of the Constitution Act 1975.

Clause 7 of the Bill has been included to satisfy the requirements of section 85 of the Constitution Act 1975 in respect of changes to the jurisdiction of the Supreme Court effected by section 26 of the Wrongs Act 1958, as amended by clauses 5 and 6 of this Bill.

As already outlined, the purpose of these provisions is to ensure fairer outcomes where a plaintiff is guilty of contributory negligence. But for these amendments, the Supreme Court would be obliged to apply the High Court's decision in Astley v. Austrust and the common law. Plaintiffs would receive inequitable and unfair awards. With the passage of this Bill, the Supreme Court will be required to reduce the damages recoverable to the extent the court thinks just and equitable having regard to the plaintiff's share in the responsibility for the damage.

It is necessary to limit the jurisdiction of the Supreme Court in this way to ensure the fairer outcome to which I have referred.

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.

Footnotes
1	Section 5(2)(e) provides that in sentencing an offender a court must have regard to whether the offender pleaded guilty to the offence and, if so, the stage in the proceedings at which the offender did so, or indicated an intention to do so.
2	To commence on 1 January 2001.
3	Australian Safety Bureau report to the Secretary to the Department of Infrastructure concerning a train collision in Ararat on 26 November 1999.
4	(1999) 197 CLR 1.
5	The South Australian equivalent to s.26 of the Wrongs Act 1958 (Vic).
6	Formerly the Subordinate Legislation Subcommittee (a subcommittee of the Scrutiny of Acts and Regulations Committee).

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26 October 2000 ©Parliament of Victoria