Tuesday, 30 October 2001
Energy Legislation (Miscellaneous Amendments) Bill
Introduced: 17 October 2001
Second Reading Speech: 18 October 2001
House: Legislative Assembly
Minister introducing Bill: Hon. S. Garbutt MLA
Portfolio responsibility: Minister for Energy and Resources, Hon. C. Board MLC
Purpose
The Bill amends the Electricity Industry Act 2000 and the Gas Industry Act 2001.
The Bill provides complementary amendments to the Electricity Industry Act 2000 and the Gas Industry Act 2001 in relation to specific customer "safety net" provisions of those Acts, and in particular, to clarify the operation of the existing deemed contract provisions which arise in circumstances when a customer takes supply of electricity or gas without having entered into a contract with the relevant retailer, or cancels a contract for the supply and sale of electricity or gas within the relevant cooling-off period but continues to take supply of electricity or gas from the same retailer.
The Bill also amends the supplier of last resort provisions in the Electricity Industry Act 2000 and the Gas Industry Act 2001 to clarify that the tariffs, terms and conditions approved by the Office of the Regulator-General in relation to the supplier of last resort arrangements may also provide for ongoing supply following the end of the term of such arrangements.
The Bill also amends the Electricity Act 2000 by clarifying the current exemption from the operation of the cross-ownership rules under that Act for new generation facilities and by providing that, for the purposes of the Office of the Regulator-General Act 1994, the Electricity Industry Act 2000 is relevant legislation and the electricity industry is a regulated industry.
The Bill also amends the Gas Industry Act 2001 to clarify the scope of Orders in Council which may be made under section 68 of that Act, and to clarify the effect of, and power to make related determinations under that section; clarify the powers the Office of the Regulator-General when approving retail gas market rules submitted to it by VENCorp or a gas distribution company under the Act; and to provide that VENCorp may undertake activities relating to arrangements for competition in retail gas markets outside of Victoria.
Content and Committee comment
[Clauses]
[2]. Sections 1, 2, 3, 4, 6, 8, 11, 13, 14, 15, 17 come into operation on the day after Royal Assent. Sections 5, 7, 9 and 16 come into operation on 1 January 2002. The remaining provisions come into operation on proclamation but not earlier than by 1 January and not later than by 31 December 2002.
The Committee makes no further comment.
Introduced: 17 October 2001
Second Reading Speech: 18 October 2001
House: Legislative Assembly
Minister introducing Bill: Hon. R. Hulls MLA
Portfolio responsibility: Attorney-General
Purpose
The Bill amends the Judicial Remuneration Tribunal Act 1995 ("the Act") to provide for matters relating to the membership, functions and procedures of the Judicial Remuneration Tribunal ("the Tribunal or JRT").
The Committee notes the following comments from the Second Reading Speech –
This year marks the 300th anniversary of the Act of Settlement. The Act contains the foundation principles of our constitutional system of government, and further defines the relationship between the judiciary and the legislative and executive arms of government. It is an ancient piece of legislation that still resonates in the modern world.
The Bill will re-establish the constitutional relationship between the judiciary and the Parliament on issues of judicial salaries and allowances in line with Act of Settlement principles. It removes the current inappropriate relationship with the executive arm of government.
By so doing the Bill enhances judicial independence in Victoria and ensures that our courts and tribunals will continue to operate impartially and uphold our constitution and democratic principles.
In Victoria the remuneration of judicial officers is determined by the Judicial Remuneration Tribunal Act 1995. This Act establishes the Judicial Remuneration Tribunal (JRT) to inquire into and report on the remuneration of judges, masters, magistrates and tribunal members.
…
…the Bill will give the JRT a hierarchy of powers – determinative, recommendatory and advisory.
The first tier will give the JRT power to make determinations with regard to judicial salaries and allowances. These determinations will not be subject to disallowance except by either house of Parliament. This amendment will bring Victoria into line with the position adopted by the majority of other states.
The second tier will give the JRT recommendatory power in relation to conditions of service such as leave, travel entitlements and reimbursement of work-related expenses.
The Attorney-General will have the ability to accept or reject recommendations of the JRT. If the JRT's recommendations are not accepted or the Attorney-General intends to vary the recommendation, the Attorney-General must issue a statement to Parliament within 10 days of tabling the report containing the recommendation, giving reasons for varying the recommendation or not accepting it.
The third tier allows the Attorney-General to make specific references to the JRT for an advisory opinion on particular aspects of judicial remuneration.
Content and Committee comment
[Clauses]
[2]. The provisions in the Bill come into operation on proclamation but not later than 1 January 2002.
[5]. Amends section 4 of the Act to exclude current or former judicial officers of Victoria, the Commonwealth or any other State or Territory, or any person who holds an office or place of profit under the Crown, from being appointed as members of the Tribunal. However, the provision allows for the Commissioner of Public Employment to be eligible for appointment.
[6]. Substitutes section 11 and inserts new section 11A into the Act. New section 11 relates to the functions of the Tribunal, and provides that the Tribunal’s functions are to make determinations relating to salaries and allowances of holders of office; to make determinations relating to the remuneration of acting magistrates; and to make recommendations to the Attorney-General (or relevant Minister) relating to the conditions of service of holders of office and acting magistrates.
[7]. Inserts new subsection (1A) into section 12 of the Act, listing factors which the Tribunal must consider when making a determination or recommendation or giving an advisory opinion.
[8]. Substitutes section 13 of the Act to require the Tribunal to report to the Attorney-General (or relevant Minister) at intervals of not less than one and not more than two years in the case of determinations or recommendations.
[9]. Substitutes section 14 and inserts a new section 14A into the Act. The new section 14 requires the Attorney-General or other Minister to table a report from the Tribunal within 10 sitting days of Parliament after the report is received. The Attorney-General or other Minister must table a statement of any intended variations of recommendations or non-acceptance of recommendations contained in Tribunal reports within a further 10 sitting days of Parliament.
The new section 14A provides that determinations of the Tribunal may be disallowed by a resolution of a House of Parliament within 15 sitting days after the report is tabled. The Attorney-General or other Minister must give effect to Tribunal determinations unless they are disallowed by Parliament.
The Committee notes that determinations concerning judicial salaries and allowances may now only be disallowed by either House of Parliament. |
[12]. Makes consequential amendments to the Constitution Act 1975, the County Court Act 1958 and the Magistrates’ Court Act 1989.
The Committee makes no further comment.
Livestock Disease Control (Amendment) Bill
Introduced: 10 October 2001
Second Reading Speech: 11 October 2001
House: Legislative Assembly
Minister introducing Bill: Hon. J. Brumby MLA for Hon. K. Hamilton
Portfolio responsibility: Minister for Agriculture
Purpose
The Bill implements a framework for the National Livestock Identification Scheme ("NLIS") to allow the permanent identification of cattle and potentially other livestock species and for related matters concerning monitoring and control of livestock diseases by amending the Livestock Disease Control Act 1994 ("the Act").
Content and Committee comment
[Clauses]
[2]. Clause 15 (new section 94B) has a commencement date of 1 January 2005, if not proclaimed earlier. The other provisions will have a commencement date of 1 July 2002 if not proclaimed earlier.
[6]. Inserts a new section 9A requiring owners of cattle to tag, mark, brand or identify cattle in the manner specified by the Secretary. The Secretary must publish the requirements by means of a gazette notice.
[7]. Inserts a new section 9B concerning property of birth identification whereby a unique identification is issued in relation to a property where cattle or prescribed livestock is born, or where the cattle or prescribed livestock is normally kept, or will be kept. This property identification is to be used on approved tagging devices to enable traceback, and when reporting livestock movement in accordance with later provisions.
[9]. Substitutes section 10(1) and inserts a new 10(4) to require a licence from the Secretary before diseased livestock may be brought into Victoria.
[10]. Substitutes section 29(5) and extends the time of effect of a Ministerial Order which declares a control area from 60 days to 12 months and also allows a possible extension for a further 12 months.
[12]. Amends section 44(1)(c) to ensure that where a sewerage authority allows cattle to be situated on or to graze on land on which night soil or sewage has been deposited the cattle cannot be removed for slaughter without the Secretary’s approval.
[15]. Inserts a new section 94B implementing a new reporting requirement for the operator of an abattoir or knackery to keep certain records and notify the Secretary or a person nominated by the Secretary within 7 days or a specified time, of livestock slaughter or disposal.
[16]. Inserts new section 96B that requires the bona fides of the person selling livestock to be established to the agent selling the livestock. This requirement was previously contained in repealed section 38 of the Auction Sales Act 1958.
[17]. Inserts a new section 115A to provide for an identification notice in relation to diseased livestock to be issued by an inspector.
[18]. Allows a penalty infringement notice to be issued for certain new provisions inserted by the Bill.
[19]. Amends the regulation making power in section 139 to allow for further implementation of the framework for NLIS with respect to the identification of livestock and the recording of livestock movement. The amendment also allows for the prohibition or regulation of the destruction or disposal of the means of identification of livestock.
| The Committee notes the regulation making powers and accepts that they are appropriate to give effect to the purposes of the legislation. |
The Committee makes no further comment.
Marine (Further Amendment) Bill
Introduced: 17 October 2001
Second Reading Speech: 18 October 2001
House: Legislative Assembly
Minister introducing Bill: Hon. P. Batchelor MLA
Portfolio responsibility: Minister for Ports, Hon. C. Broad MLC
Purpose
The Bill amends the Marine Act 1988 ("the Act") to –
- abolish the Marine Board of Victoria and create the Office of the Director of Marine Safety;
- provide the Minister with powers to establish advisory committees to advise the Minister and the Director on any marine safety related matters referred to the committees; and
- provide improved powers related to marine safety inspections and investigations; and
- provide improved powers for the effective administration of local ports; and
- provide improved powers for the control of marine pollution; and
- make other amendments to improve the operation of the Act.
Content and Committee comment
[Clauses]
[2]. Sections 1, 2, 18, 22, 23(1), 23(2), 24, 25, 26 and 29 come into operation on the day after Royal Assent. Parts 2 and 7 come into operation on 7 February 2002. The remaining provisions come into operation on proclamation but not later than 1 January 2003.
[5]. Substitutes for section 63 of the Act a new section that provides for the Director of Marine Safety within the Department of Infrastructure, and [6 and 7] amends section 65 and 66 of the Act to provide for additional functions and powers of the Director.
[8]. Substitutes sections 68-71 of the Act.
New section 69 provides for the Director to delegate in writing any powers conferred on the Director by or under the Act.
(1) The Director may delegate, in writing, any power conferred on the Director by or under this Act to –
(a) any employee of the Department of Infrastructure; or
(b) an officer or employee of the Victorian Channels Authority or of a local authority; or
(c) with the consent of the Minister, any other person or class of person.
(2) Despite sub-section (1), the Director must not delegate –
(a) the power to enter into agreements, leases or licences on behalf of the Crown; or
(b) the power of delegation conferred by this section.
(3) A delegation under this section may be conferred on the holder of an office or position or on a named person.
Parliamentary Committees Act 1968 – Section 4D(a)(ii) – makes rights, freedoms or obligations dependent upon insufficiently defined administrative powers The Committee notes the Director may only delegate to ‘any other person or class of person’ only with the consent of the Minister. However the Committee believes that the delegation is a departure from a defined delegation provision which ordinarily limits a delegation to a defined class of persons or persons with a defined qualification or office. The Committee will write to the Minister to seek further advice as to the reasons for including such a provision in this legislation. |
New section 70 imposes restrictions on whom the Director may authorise to carry out various functions under specific sections of the Act.
New section 71 provides for the Minister to establish Advisory Committees to advise the Minister or the Director on marine safety issues.
[9]. Inserts sections relating to the abolition of the Marine Board of Victoria.
New section 153 deals with the transfer of Board staff on terms not less favorable than prior to their transfer.
[10 to 16]. Provides for the Director to appoint inspectors for the purposes of the Act and to issue inspectors with identity cards, introduces the offence of impersonating an inspector and widens the functions and powers of inspectors. It also provides power for inspectors to request names and addresses and to identify owners or masters of vessels, extends the period for detaining vessels and deals with the processes by which vessels may be detained.
[12]. Amends section 83A(1) (offence to fail to comply with a request of an inspector) of the Act by inserting new offences relating to the obstruction of inspectors carrying out their duties.
[13]. Inserts new sections 83B-83D into the Act.
Section 83B enables an inspector to require a person to give the inspector the person’s name and address if the inspector believes on reasonable grounds that a person has committed an offence against the Act or the regulations. An inspector must inform a person that it is an offence not to comply with the section.
Section 83C enables an inspector to require a person to give the inspector information about the identity or location of the owner or master of a vessel for the purposes of an investigation.
Section 83D enables an inspector to apply to a magistrate for an order to extend the period for which a vessel may be detained under section 83.
[14]. Amends section 84(1B)(a) of the Act to increase from 72 hours to 14 days the period the Director may suspend a licence, certificate or registration, once the Director commences an investigation.
[15]. Inserts new sections 84A-84C into the Act.
Section 84A provides that the Victorian Civil and Administrative Tribunal may extend a period of a suspension imposed by the Director under section 84(1B).
Section 84B sets out the actions the Director may take after completing an investigation under section 84 in relation to a person.
Section 84C provides that the Director may make public all or part of a report relating to an investigation under section 84.
[17]. Substitutes section 112 and inserts new sections 112A to 112I dealing with local authorities for designated ports.
New section 112C allows local authorities to delegate, in writing, any power conferred on it by or under the Act (other than the power of delegation) to any of its employees.
The Committee notes the delegation power and considers the delegation is sufficiently defined for the purposes of the Act. |
New section 112H provides that the Governor in Council may make regulations with respect to designated ports generally or with respect to a specified designated port. Penalties may be imposed by regulations but not exceeding 5 penalty units.
The Committee notes the regulation making powers and accepts that they are appropriate to give effect to the purposes of the legislation. |
[19]. Inserts a new section 38(1) into the Act to set out the additional actions that can be taken in the event of a pollution incident.
[28]. Inserts new sections 99A and 99B into the Act. Section 99A gives the Director power to order the removal of obstructions in navigable waters and section 99B gives the Director power to remove obstructions to navigation.
[31 and 32]. Provide additional amendments to the Act consequential on the abolition of the Marine Board and for consequential amendments to other Acts.
The Committee makes no further comment.
Melbourne City Link (Further Amendment) Bill
Introduced: 17 October 2001
Second Reading Speech: 18 October 2001
House: Legislative Assembly
Minister introducing Bill: Hon. P. Batchelor MLA
Portfolio responsibility: Minister for Transport
Purpose
This Bill amends the Melbourne City Link (Further Amendment) Act 2001 ("the Act") to –
- establish a further power to licence land for the purposes of the Project in particular, for the installation and operation of recharge wells for the purpose of minimising ground settlement;
- provide further information provisions in relation to tolled exempt vehicles; and
- establish the Office of Director, Melbourne City Link within the Department of Infrastructure.
Content and Committee comment
[Clauses]
[2]. The provisions in the Bill come into operation on proclamation but not later than 1 February 2003.
[4]. Inserts new sections 6A and 6B into the Act to establish the Office of Director, Melbourne City Link and to confer functions and powers on the Director.
[6]. Inserts new Part 2A into the Act to temporarily reserve specified land for public purposes, being in particular, the purposes of the Project, under section 4(1) of the Crown Land (Reserves) Act 1978 and to enable the issuing of licenses for the purposes of the Project.
New Section 20F excludes certain Acts from applying to the whole or any part of a licensed area.
The Committee notes the comments in the Second Reading Speech –
"The current powers and functions in the Melbourne City Link Act 1995 are insufficient to provide Transurban with a right to install and operate recharge wells for the duration of the concession period."
[7]. Amends section 73D(1) of the Act dealing with the information to be given in relation to registered vehicles.
[8]. Amends section 94 of the Act to confer on a licence holder the same protections and immunities as the Roads Corporation has under the Transport Act 1983 and at common law in relation to the construction, operation, maintenance, management and control of highways. The licence holder only has these protections and immunities in the carrying out of its functions under the Agreement, the Bill and the other legislation specified.
[9]. Amends section 96(3) of the Act to provide that no land tax is payable by the licence holder, amends section 96(4) to provide that licensed areas are not rateable land within the meaning of section 154 of the Local Government Act 1989 and amends section 96(5) to provide that service charges are not payable under section 221 of the Local Government Act 1989 in respect of licensed areas.
The Committee makes no further comment.
Petroleum (Submerged Lands) (Amendment) Bill
Introduced: 17 October 2001
Second Reading Speech: 18 October 2001
House: Legislative Assembly
Minister introducing Bill: Hon. S. Garbutt MLA
Portfolio responsibility: Minister for Energy and Resources, Hon. C. Board MLC
Purpose
The Bill amends the Petroleum (Submerged Lands) Act 1982 ("the Act") to mirror amendments previously made to the corresponding Commonwealth principal legislation the Petroleum (Submerged Lands) Act 1967 (Clth) by amending Commonwealth Acts. This is to honour the Offshore Constitutional Settlement dating from 1967, under which the Commonwealth and the States agreed that "the Commonwealth and States should endeavour to maintain, as far as practicable, common principles, rules and practices in the regulation and control of the exploration for and the exploitation of the petroleum resources in submerged lands."
The Bill –
- updates penalty provisions to bring them into line with the Commonwealth Act and adopts penalty units in lieu of fixed amounts;
- replaces gender specific terms with gender neutral terms;
- adopts the Geocentric Datum of Australia.
The Bill mirrors amendments made by the following seven Commonwealth Acts to the corresponding Commonwealth principal legislation –
- Maritime Legislation Amendment Act 1994 No. 20, 1994
- Petroleum (Submerged Lands) Legislation Amendment Act 1994 No. 93, 1994
- Primary Industries and Energy Legislation Amendment Act (No. 2) 1995 No. 133, 1995
- Primary Industries and Energy Legislation Amendment Act (No. 2) 1997 No. 22, 1997
- Primary Industries and Energy Legislation Amendment Act (No. 1) 1998 No. 102, 1998
- Petroleum (Submerged Lands) Legislation Amendment Act (No. 1) 2000 No. 5, 2000
- Petroleum (Submerged Lands) Legislation Amendment Act 2001 No. 28, 2001.
This Bill restores the Petroleum (Submerged Lands) Act 1982 to mirror status with the equivalent Commonwealth Act in accordance with the Offshore Constitutional Settlement of 1967.
The Committee notes the comments in the Second Reading Speech –
The preambles of the Victorian and Commonwealth Petroleum (Submerged Lands) Acts summarise the constitutional settlement that these Acts implement.
The Acts provide for the exploration and exploitation of petroleum resources of submerged lands. By agreement between the Commonwealth and the States, the Commonwealth Act applies to waters beyond the territorial sea adjacent to the state and the Victorian Act applies to the territorial waters. It was further agreed that the breadth of those waters is 3 nautical miles.
It was also agreed that 'the Commonwealth and the States should endeavour to maintain, as far as practicable, common principles, rules and practices in the regulation and control of the exploration for and the exploitation of the petroleum resources’.
As Victoria administers matters in both the state coastal waters and the contiguous Commonwealth area, it is highly desirable to maintain the mirror status of the relevant Commonwealth and State legislation governing these areas.
Content and Committee comment
[Clauses]
[2]. Parts 1 and 3 commence on the day after Royal Assent. Part 2 [4 to 14] commences on proclamation but not later than 1 January 2003.
[6]. Inserts new sections 59A to 59K dealing with the grant and termination of infrastructure licences. Note: So as to maintain consistency of numbering with the Commonwealth Act there is no section 59I.
[11]. Inserts in section 134(1) a reference to section 59A (inserted by [6]) making it an offence to construct or operate infrastructure facilities except in accordance with a licence. Section 134 provides for forfeiture on conviction of certain offences.
[12]. Inserts a new section 140A which provides for an annual fee to be payable to the Minister by an infrastructure licensee. The fee is to be calculated in accordance with the regulations.
[15 and 70]. Amends the preamble and the Second Schedule to the Act to remove the reference to the Convention on the Continental Shelf signed at Geneva on 29 April 1958. This reference is no longer appropriate, as a new United Nations Convention on the Law of the Sea was adopted and signed by Australia in 1982.
[17]. Amends definitions in section 4 including to substitute the definition of "natural resources" to refer to the definition used in the United Nations Convention on the Law of the Sea.
[18]. Inserts a new section 6A providing that pipeline licences for conveying petroleum recovered from areas beyond Australian waters are to be subject to the obligations of Australia under international law.
[40]. Substitutes section 53 and inserts a new section 53A. The current section 53 provides that the term of a production licence is 21 years. The new section 53 provides that a production licence remains in force indefinitely. The new section 53A provides that the Minister may terminate a production licence if no operations for the recovery of petroleum have been carried on for a continuous period of at least 5 years.
[45]. Inserts a new section 67A which provides that the Minister may terminate a pipeline licence if the licensee has not carried out any construction work or used the pipeline under the licence for a continuous period of at least 5 years.
[58]. Amends section 115, 116 and 117. The amendments to section 115 insert a new sub-section (3) the effect of which is to provide increased protection against self-incrimination for affected persons. The new section 115(3) provides –
(3) However, any information furnished, answer given or document produced pursuant to the requirement, and any information or thing (including any document) obtained as a direct or indirect consequence of the furnishing of the information, the answering of the question or the production of the document, as the case may be, is not admissible in evidence against the person in any civil proceedings or in any criminal proceedings other than proceedings for an offence against section 117.
Section 117 provides that it is an offence to fail to provide information.
[67]. Inserts a new Part IIIA (Release of Information) and a new Part IIIB (Datums).
[68]. Amends section 152(4) to permit the regulations to impose fines up to 110 penalty units and up to 550 penalty units in the case of a company.
The Committee makes no further comment.
Retail Tenancies Reform (Amendment) Bill
Introduced: 9 October 2001
Second Reading Speech: 9 October 2001
House: Legislative Council
Minister introducing Bill: Hon. M. Thomson MLC
Portfolio responsibility: Minister for Small Business
Purpose
The Bill amends the Retail Tenancies Reform Act 1998 ("the Act").
Content and Committee comment
[Clauses]
[2]. The provisions in the Bill come into operation on the day after Royal Assent.
[3]. Amends the commencement section of the Act by adding a new sub-section (4) which provides that the Act is deemed to have been enacted as amended by clause 4 of the Bill. The Act came fully into operation on 1 July 1998.
The Committee notes the amendments made to the Act have retrospective effect and are designed to restore certainty in the operation of rent review clauses in retail leases following a ruling in the Victorian Civil and Administrative Tribunal. The retrospective operation to 1 July 1998 is to ensure the clarified provision applies from the commencement of the other provisions in the principal Act. |
[4]. Amends section 12(2) of the Act. The section limits the basis or formula on which a rent review under a retail premises lease may be made. Section 12(2)(a) currently provides that one possible basis or formula is a fixed percentage of the base rent.
In Khodr v Foo Qan Eng Holdings Pty Ltd (25 January 2001) the Victorian Civil and Administrative Tribunal construed the reference in section 12(2)(a) to "base rent" as a reference to the initial rent paid under the lease. The amendment removes the words "of the base rent" thus overcoming the effect of the Khodr decision and allowing, for example, a lease to provide for a fixed percentage increase throughout the term of the lease on the previous year's rent. A similar approach was taken under the Retail Tenancies Act 1986 as amended by the Retail Tenancies (Rent Review) Act 1991.
The amended section 12(2)(a) will thus be –
The basis or formula on which a rent review referred to in sub-section (1) is to be made must be one only of the following –
(a) a fixed percentage
of the base rent;
…
[5]. Amends section 52 of the Act to insert transitional provisions. The effect of these provisions is that the Bill will not affect proceedings determined or hearings concluded by the Victorian Civil and Administrative Tribunal before its passing or appeals from those matters. Retail premises leases entered into before the passing of this Bill that use a fixed percentage for rent review purposes have the effect they would have had if section 12(2) of the Retail Tenancies Reform Act 1998 had been amended as provided by this Bill at the time the lease was entered into. The intent is to ensure the validity of rent review provisions that were, for example, expressed as a fixed percentage of a previous year’s rental.
The Committee makes no further comment.
State Taxation Legislation (Amendment) Bill
Introduced: 10 October 2001
Second Reading Speech: 11 October 2001
House: Legislative Assembly
Minister introducing Bill: Hon. J. Brumby MLA
Portfolio responsibility: Treasurer
Purpose
The Bill amends the Duties Act 2000, the Land Tax 1958 and the Taxation Administration Act 1997.
Content and Committee comment
[Clauses]
[2]. The provisions in the Bill come into operation on the day after Royal Assent.
Duties Act 2000
[5]. Inserts a new provision in section 14 for the purposes of deeming a transfer of land to evidence any goods passing with the land and implements the policy that requires parties to only stamp one transfer form.
[9]. Substitutes section 36 relating to the exemption from duty that applies to property passing to beneficiaries of a trust. To be eligible, the beneficiaries are required to be beneficiaries when property is first vested in the trust and the relevant duty charged (if any) has been paid on the transfer of property into that trust.
Land Tax Act 1958
[14]. Inserts new sections 74 and 75 in the Act to ensure that the service of documents provisions of the Act are consistent with modern service requirements and with those found in the Taxation Administration Act 1997. The new section provides that the service of documents may be made by electronic means and the sections also clarify when the service of documents is deemed to be effective.
Taxation Administration Act 1997
[15]. Inserts new section 49A in the Act to enable the Commissioner to recover unpaid tax from persons acting as agents on the Commissioners behalf and provides the Commissioner with the capacity to make an application to the Supreme Court for an order requiring the agent to show cause why they should not provide an account upon oath of all tax payable and why that tax should not be paid.
[17]. Inserts a new section 73A to provide the Commissioner with the discretion to certify a matter to the Supreme Court where a person has, without reasonable excuse, failed to comply with a notice under section 73 (Power to require documents, information and things, and attendance). The Supreme Court has a discretion to inquire into a case where the Commissioner so certifies, and may order a person to comply with the relevant notice requirement within the period specified by the court. The Commissioner cannot certify a failure to the Supreme Court if the person to whom the failure relates has been charged with an offence for contravening section 73(8).
The Supreme Court’s power to deal with a person for contempt of that court is unaffected. However, a person may not be liable for punishment more than once for failing to comply with an order under the section.
The Committee makes no further comment.
Transport (Alcohol and Drug Controls) Bill
Introduced: 17 October 2001
Second Reading Speech: 18 October 2001
House: Legislative Assembly
Minister introducing Bill: Hon. P. Batchelor MLA
Portfolio responsibility: Minister for Transport
Purpose
The Bill amends the Transport Act 1983 ("the Act") and will prohibit the carrying out of safety work while impaired by a drug; makes it a condition of rail safety accreditation to take reasonable steps to ensure that workers do not carry out safety work after consuming alcohol or while impaired by drugs; and to create a new offence to fail to comply with that new condition of accreditation.
The Committee notes the comments in the Second Reading Speech –
The Bill provides that it is an offence for rail safety workers to be impaired by drugs whilst undertaking rail safety work. In this context 'rail' refers to both tram and train operations and a rail safety worker is a person working in a transport operations role, in particular on or near tram or train tracks.
The relevant drugs will be specified by gazette and initially will be the same as those specified under the recent changes to the Road Safety Act and will include prescription drugs.
The Bill further provides that it is a condition of rail safety accreditation that an accredited company must ensure that their workers do not perform safety work after consuming alcohol or while being impaired by any other drug. The Bill also creates a new offence with substantial penalties, if an accredited rail organisation fails to comply with that new condition.
The Bill provides for a testing regime where authorised officers, nominated by the accredited organisations, will be able to conduct preliminary drug assessment tests to complement their existing ability to conduct preliminary breath tests on rail safety workers.
Under these changes drug tests will be authorised where there is a reasonable belief that a rail worker's ability to perform safety work has been impaired by a specified drug. Where that belief exists, the test may be performed before a worker commences safety work, while performing such work or up to 3 hours after completing safety work.
Police officers will also be authorised to perform drug impairment tests following an accident or following a rail operations 'incident' which involves a breach of tram or train safety rules or operating procedures and the tram or train operator specifically request the police to conduct the test. A positive drug test by police following an accident may result in a prosecution.
Content and Committee comment
[Clauses]
[2]. The provisions in the Bill come into operation on proclamation but not later than by 30 June 2002.
[6]. Inserts the definitions of "drug" and "substance" in section 93(1) of the Act and inserts a new sub-section (1AA) which allows the Minister to declare any substance to be a drug for the purposes of Division 2 of Part 6 by notice in the Government Gazette.
[7]. Inserts three new sub-sections in section 93 of the Act.
New sub-section (5A) provides for a presumption that a worker has performed safety work with a certain drug present in the blood if the presence of that drug is found in the body of a safety worker within three hours of the worker having performed safety work.
New sub-sections (6A) provides that where a drug is found to be present in a worker’s body it is not to be presumed that a drug was consumed after the carrying out of safety work unless the worker proves the contrary.
New sub-section (6B) provides that a worker is not to be taken to be impaired unless the behaviour or appearance of the worker is such that there is a reasonable suspicion that the worker is unable to perform safety work properly.
[8]. Amends section 94(1) to make it an offence for a worker to carry out safety work while impaired by a drug and to refuse to undergo an assessment for drug impairment under section 96A and to refuse to comply with a requirement under section 96B to provide a blood or urine sample for testing. The amendments set out the elements of proof in proceedings for an offence of performing safety work while impaired by a drug.
The Committee notes the comments in the Second Reading Speech –
"This part of the program* will be especially important because, unlike the similar road safety provisions, this Bill does not provide a defence to a drug impairment charge if the worker was following medical advice. This important difference is appropriate because of the substantial public safety ramifications of train and tram operations."
* Rail safety workers education program concerning awareness of new legal requirements, available in several languages to target high proportion of non-english speaking safety workers in the industry.
The Committee notes that unlike the identical drug offence provisions in section 49(3B) of the Road Safety Act 1986 there is no defence for the taking of non-prescription or prescription drugs on medical advice. Absent such a defence, the new offence becomes one of strict liability, where safety workers will be liable if non-prescription of prescription drugs impair their performance. The onus to be aware of Orders (specified by Gazette) declaring restricted medications will rest with the safety worker. The Committee notes the comments in the Minister’s Second Reading Speech and draws Parliaments attention to the provision. |
[9]. Provides that a person required to undergo a drug assessment under section 96A may be required to undergo a breath analysis test.
[10]. Inserts three new sections, 96A, 96B and 96C, which set out procedures for identifying drug impairment for safety workers.
New section 96A provides that an authorised officer may, in certain circumstances, require a safety worker who is about to commence safety work or is performing safety work to undergo an assessment of drug impairment.
A drug assessment must be carried out by a person authorised by the Secretary of the Department of Infrastructure or by a member of the police force who is authorised by the Chief Commissioner of Police in accordance with procedures specified in the Government Gazette.
Provision is made for the assessment of drug impairment to be video-recorded unless the prosecution satisfies the court that a video-recording has not been made because of exceptional circumstances.
If the person is subsequently charged, a copy of the video-recording must be served on the defendant. The video-recording can only be used for the purpose of establishing that the assessment of drug impairment was carried out in accordance with the specified procedures. A number of evidentiary provisions are included with respect to a drug assessment.
New section 96B provides for a person who has undergone an assessment of drug impairment and who, in the opinion of the authorised officer or member of the police, may be impaired by a drug or drugs, to be required to provide a sample of blood and/or urine to a registered medical practitioner or approved health professional.
The section also provides that it is an offence for a person to hinder or obstruct the taking of a blood or urine sample.
The new section further provides that no legal action lies against a registered medical practitioner or approved health professional for taking a blood or urine sample providing there was a reasonable belief that the sample was required to be furnished. If the person is subsequently charged, a copy of the written report on the assessment of drug impairment must be served with the summons, or within 7 days after charging if a summons is not issued.
[16]. Amends section 102 of the Act to allow regulations to be made under the Act with reference to the methods and conditions to be used for collection of urine samples, the methods to be used by analysts in determining the presence of a substance in a blood or urine sample and the methods of taking, transmission, safe-keeping, delivering and analysis of urine samples used in drug testing.
The Committee notes the regulation making powers and accepts that they are appropriate to give effect to the purposes of the legislation. |
[17]. Inserts a new section 102A in the Act to provide for the disallowance of Orders declaring substances to be drugs and notices specifying drug impairment assessment procedures.
[19]. Amends section 117 of the Act to add a new sub-section (4A) which makes it a condition of rail safety accreditation that a person who has been accredited to ensure that a worker who is about to carry out safety work or carries out safety work for that person does not have more than the prescribed amount of alcohol in his or her blood and is not impaired by a drug.
[20]. Inserts new sub-sections (2) and (3) in section 118 of the Act. Section 118(2) makes it an offence to breach the new condition of accreditation in proposed [19].
Report to the Parliament pursuant to section 4D(b)(i) and (ii) of the Parliamentary Committees Act 1968 concerning a repeal alteration or variation of section 85 of the Constitution Act 1975
[21]. Inserts a new section 255D into the Act to declare that it is the intention of section 96B(5) (as inserted by clause 10) to alter or vary section 85 of the Constitution Act 1975 so as to prevent legal action being taken against a registered medical practitioner or an approved health professional as a result of the taking of a sample of blood or being furnished with a sample of urine.
Clause 21 of the Bill inserts a new section 255D into the Transport Act which states that it is the intention of section 96B(5) of the Transport Act (as inserted by clause 10 of the Bill) to alter or vary section 85 of the Constitution Act 1975.
The effect of proposed sections 255D and 96B(5) is to confer an immunity on registered medical practitioners and approved health professionals (defined to include registered nurses) to prevent legal proceedings being brought against them in the Supreme Court for taking blood samples and/or being furnished with urine samples from safety workers suspected of being impaired by a drug while carrying out, or about to carry out, safety work.
These provisions have the same effect as similar provisions inserted into the Road Safety Act by the Road Safety (Amendment) Act 2000 which introduced the offence of driving a vehicle while impaired by a drug and the procedures for assessing whether a driver was, while driving, impaired by a drug.
The reason for the variation of the Supreme Court's jurisdiction is that the immunity is necessary to ensure that the drug control measures proposed by this Bill are workable by enabling registered medical practitioners and approved health professionals to carry out the procedures to take blood samples and/or to be furnished with urine samples, which are necessary to detect drugs in the body of a safety worker, without the fear of litigation by safety workers disgruntled at being tested.
The Committee has examined the proposed section 85 of the Constitution Act 1975 clause and notes the Minister’s statement in the Second Reading Speech and accepts that the provisions are consistent with the purposes of the Bill. |
The Committee makes no further comment.