The Bill amends the Health Services Act 1988 (the Act) in relation to the supply of goods and services to health or related services, including public hospitals, and establishes Health Purchasing Victoria (HPV).

[6]. Amends section 42 of the Act providing the Secretary power to issue a direction to a public hospital requiring it to appoint HPV as its agent for the purposes of obtaining or purchasing goods and services. The direction can stipulate the conditions on which the hospital must appoint HPV as agent.

[7]. Amends section 58 of the Act to permit the Minister to exercise the powers in section 58 in relation to a public hospital that fails to comply with an HPV direction or a purchasing policy. Section 58 allows the Minister to censure a registered agency, suspend admission of patients to the agency, recommend to the Governor in Council that an administrator of the agency be appointed or recommend to the Governor in Council that the agency be closed.

[8]. Inserts a new Part 6 into the Act comprising new sections 129 to 134N.

New section 129 establishes Health Purchasing Victoria (HPV) and provides that it is a body corporate with perpetual succession which may sue and be sued in its corporate name, may acquire, hold and dispose of real and personal property, and may do and suffer all things that a body corporate may do and suffer.

New section 131 sets out the functions of HPV including to supply and facilitate access to the supply of goods and services to public hospitals and other health or related services.

New section 132 sets out the powers of HPV.

New section 134A provides that HPV can exempt a public hospital or class of public hospitals from the requirement to comply with a purchasing policy.

New section 134D provides for the membership of HPV. The Governor in Council may also appoint up to 2 additional members who have expertise which the Minister believes is relevant to the functions of HPV. New section 134E sets out the terms and conditions of members of HPV.

New section 134F relates to the removal, resignation or vacancy in the office of an HPV member.

New section 134I relates to direct or indirect conflicts of interest of HPV members and prohibits improper use of any information acquired as a member of HPV to obtain a direct or indirect advantage.

New section 134K is a delegation provision –

HPV may, by instrument, delegate to a member or an employee of HPV any of its powers except – (a) the power to make, amend or revoke purchasing policies under section 134; (b) this power of delegation.

New section 134L gives the Minister power to issue directions to HPV about any of its functions or powers, including directions which set limits or controls on the extent to which HPV can expend and borrow money and enter into contracts and joint ventures.

The new section 134L also gives the Secretary the power to issue directions to HPV regarding the terms and conditions on which HPV employs staff.

New section 134N relates to contracts for goods or services entered by public hospitals before 1 July 2001. A public hospital will not be required to comply with an HPV direction or purchasing policy to the extent that the direction or policy is inconsistent with a pre-1 July contract. However, a public hospital will not be able to vary such a contract or exercise an option to extend or renew such a contract on or after 1 July 2001 unless HPV provides written consent.

The Committee makes no further comment.

The Bill amends the Road Safety Act 1986 (the Act), the Marine Act 1988 and other Acts related to alcohol and drugs enforcement. The Bill –

[3]. Inserts a definition of "accompanying driver offence" into section 3(1) of the Act.

[4]. Amends section 48 of the Act. A new section 48(1AAA) to provide that, for the purposes of the alcohol and drug provisions of the Act, an instructor (other than a commercial instructor) is to be taken to be in charge of the vehicle when accompanying a learner driver. New section 48(1AB) provides that a person who is actually driving or in charge of a vehicle remains subject to the alcohol and drug provisions of the Act despite the fact that an accompanying driver is present.

[5]. Amends section 49 of the Act to alter the method of expressing blood alcohol concentration for driving offences. Presently, section 49 prohibits blood alcohol concentrations of "more than" the prescribed level.

Note In the Supreme Court case of Blanksby v Barnes [1998] 2V.R. 164, the Court held that, as the Act expresses prescribed blood alcohol concentration with two decimal places, readings to the third decimal place should be disregarded. Under this interpretation, a person is not in breach of the provisions even though that person's blood alcohol concentration (BAC) is more than the prescribed amount unless the excess is   01 or more. Thus a reading of   059 would be interpreted as a reading of   05. To redress this situation, the proposed amendments alter the definitions of offences under section 49 by replacing references to a BAC of "more than" the prescribed level with references to a BAC of the prescribed level itself, or higher. This means that the relevant offence is committed if a BAC is at the prescribed level of   05.

[6]. Also amends section 49 of the Act to fix a penalty for an "accompanying driver offence", that is, for a breach of the alcohol or drug provisions committed by a person instructing a learner driver but who is not a commercial instructor. The amendments will prescribe a penalty of up to 5 penalty units ($500).

[7]. Makes consequential amendments amends section 50 of the Act, dealing with the cancellation of driving licences or permits of persons found guilty of certain alcohol and drug offences and their disqualification from obtaining further licences or permits. The purpose of the amendments is to express BAC, for these purposes, as being at the stated levels instead of as "more than" the stated levels as in [5] above.

[8]. Also amends section 50 of the Act so that a person who is found guilty of an "accompanying driver offence" is not subject to licence cancellation or disqualification under that section.

[9]. Inserts a new sub-section 53(1E) prescribing a BAC of zero for motor cyclists during the first year in which they are licensed to drive motor cycles. At present, a first year motor cyclist is not restricted to zero BAC if he or she holds a motor car licence and the zero BAC period has expired in relation to that licence. The clause also amends the expression of zero BAC to ‘any concentration of alcohol present in the blood of that person'.

[10]. Inserts a new section 53(1)(ab) into the Act to authorise police officers to administer a preliminary breath test to any person in a motor vehicle if the driver or person in charge does not hold a licence appropriate to that vehicle. The accompanying person may have committed an "accompanying driver offence". This new section will enable police to require other persons in the vehicle to undergo a preliminary breath test in the same way as the actual driver or person in charge.

[11]. Amends section 55 of the Act to enable breath analysis tests to be administered to a person who is undergoing an assessment for drug impairment.

[11(3)] amends section 55(9A) to enable a police officer to require a blood sample from a person who had undergone breath analysis under the preceding provisions where the person was unable to provide a sufficient breath sample or because the machine malfunctioned. Such blood samples could only be required on identical grounds to those under the existing alcohol provisions.

Note A health professional that takes a blood sample in accordance with section 55(9A) has immunity from suit under section 55(9E). This immunity from suit will also apply to a health professional who takes a blood sample for the purposes of a drug assessment under section 55(9A) as amended by clause 11(3). See also the notes to clause 16: It is intended that the amended section 55 will alter or vary section 85 of the Constitution Act 1975 in relation to the Supreme Court's jurisdiction.

A health professional that takes a blood sample in accordance with section 55(9A) has immunity from suit under section 55(9E). This immunity from suit will also apply to a health professional who takes a blood sample for the purposes of a drug assessment under section 55(9A) as amended by [11(3)]. See also [16] for section 85 of the Constitution Act 1975 provision relevant to this clause in relation to the Supreme Court's jurisdiction.

[12]. Inserts section 55B(1A) to prevent a blood sample being required for the purposes of drug testing from a person who has already provided a blood sample for alcohol testing under section 55(9A) in relation to the same circumstances. Section 57(2) of the Act already provides that the results of such a test are admissible as evidence in proceedings for alcohol and drug offences.

[13 and 14]. Amends sections 57 and 57A of the Act so as to enable certified results of tests of blood samples to be used as evidence even if the sample is taken more than three hours after driving. At the moment the only way in which evidence of the test result can be given if the sample was taken more than three hours after driving is by calling the analyst who conducted the test to give evidence.

[15]. Amends section 89C of the Act, which deals with the cancellation of drivers' licences or permits in certain cases. The amendments express references to BAC in terms of being at, in addition to being above, the specified concentration. See also [5].

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.

[16]. Inserts a new section 94A(3) into the Act. The new section declares that it is the intention of section 55(9E), to the extent that the section applies in respect of anything done under section 55(9A) as amended by [11] of the Bill to alter or vary section 85 of the Constitution Act 1986.

The proposed alteration or variation of the Supreme Court's jurisdiction relates to the immunity from suit that section 55(9E) of the Act confers on health professionals who take blood samples for the purposes of alcohol and drug tests under section 55(9A).

Immunity from suit already exists in relation to the taking of blood samples under the existing alcohol provisions. The amendments to section 55(9A) proposed by [11] will authorise the taking of a blood sample from a person who was initially assessed for drugs. Consequently, the scope of the immunity conferred by section 55(9E) will be indirectly extended to cover these new cases.

To ensure that the immunity conferred is effective, it is necessary to alter or vary section 85 of the Constitution Act 1975 in relation to the Supreme Court's jurisdiction. This is consistent with previous legislation relating to the section 55(9E) immunity.

The Committee notes the section 85 statement made by the Minister in the Second Reading Speech –

Under section 55(9A) of the Road Safety Act 1986, a person may be required to provide a sample of blood for analysis for its alcohol content if that person could not provide a sufficient breath sample or because the machine malfunctioned. This Bill proposes to insert a new section 55(2AA), which will allow police to require a breath sample from a person undergoing drug assessment. Consequently, the Bill also extends the scope of section 55(9A) to apply to the taking of a blood sample from a person who has been required to provide a breath sample under new subsection (2AA) if that breath sample cannot be tested. The circumstances in which such a blood sample may be taken, and the procedures which govern the taking of the blood sample, will otherwise be identical with those relating to persons who are being assessed under section 55.

Section 55(9E) presently provides that no action lies against a registered medical practitioner or an approved health professional in respect of anything properly and necessarily done in the course of taking a blood sample in accordance with section 55(9A). The scope of this immunity from action is effectively extended by this Bill because blood samples may be taken in an additional class of cases.

Clause 16 of the Bill proposes to insert a new section 94A(3) into the Road Safety Act 1986. That new section declares that it is the intention of section 55(9E) of the act to alter or vary section 85 of the Constitution Act 1975 to the extent necessary to prevent the bringing of an action of the kind referred to in section 55(9E).

The reason for this proposed alteration or variation is as follows.

It is in the interests of road safety and the general public to prevent or deter persons who are impaired by alcohol or drugs from driving motor vehicles. The enforcement system in relation to alcohol and drug impairment of motorists depends in part on the cooperation of health professionals in taking and analysing blood samples in accordance with the legislation. For these reasons, health professionals should be immune from legal action in relation to things properly and necessarily done in taking blood samples. The proposed alteration or variation to the Supreme Court's jurisdiction is necessary to ensure that the immunity conferred by section 55(9E) is effective.

In this context, it should also be noted that the Bill proposes to prohibit a second blood sample being required under section 55B if a sample has already been obtained under section 55. The taking of blood samples is invasive and should be minimised. There should be no need to take a second sample. The first sample can be tested for both alcohol and drugs and the existing section 57(2) enables such test results to be used in evidence in relevant legal proceedings.

[17]. Amends section 16(1) of the Road Safety (Further Amendment) Act 1991 (not yet in force). When that section comes into force, it will insert a new section 89C(1A) into the Act. This will provide for automatic suspension for one month of the licence of a person to whom a traffic infringement notice is issued for certain drink-driving offences whilst driving or in charge of a large vehicle. This amendment is consequential on other amendments made in the Act so as to express BAC at the stated level of   05 instead of as "more than" that level. See [5] above.

[18]. Inserts a new definition of "accompanying operator offence" into section 3(1) of the Marine Act 1988.

[19]. Inserts a new section 27(1AAA) into the Act to create a similar offence to the "accompanying operator offence" in the Road Safety Act 1986.

[20]. Amends section 28(1) of the Act to alter the definitions of certain offences under that section by replacing references to a prescribed BAC of "more than" the prescribed concentration with references to BAC of the prescribed level itself, or higher. See also [5].

[21]. Amends section 28 of the Act to fix a penalty for an "accompanying operator offence" set at 5 penalty units ($500). The clause also amends section 28(2) and (3) to exempt a person who is found guilty of an "accompanying driver offence" from liability to the heavier fines and imprisonment prescribed by those sub-sections.

[22]. Inserts a new section 29(1)(ab) into the Act to authorise a police officer to administer a preliminary breath test to any person found in a vessel under way if the person in charge is required to be accompanied by a licensed operator.

[23] Amends section 32 of the Act to enable certified results of tests of blood samples to be used as evidence even if the sample is taken more than three hours after operating a vessel. See also [13 and 14].

[24]. Amends section 3 of the Marine (Amendment) Act 2000, which when in force will amend section 3(1) of the Act to insert a new definition of "prescribed BAC" in place of a definition that was to have been inserted by the Marine (Amendment) Act 2000.

The new definition will fix BAC for the purposes of the Act as in the case of persons under 21, any concentration of alcohol at all, and any other persons,   05.

[25]. Amends section 9 of the Marine (Amendment) Act 2000, (not yet in force) to insert a new section 28A(4) into the Act. The effect of the new section 28A(4) will be that a person who is found guilty of an "accompanying operator offence" is not subject to the licence cancellation or disqualification which would otherwise apply under that section.

[26]. Amends section 13 of the Marine (Amendment) Act 2000, (not yet in force) and will insert section 61BA into the Act to deal with the manner in which blood alcohol concentration is expressed for the purposes of that section. See also [5].

The Committee makes no further comment.

The Bill amends the Tobacco Act 1987 (the Act) and the Tobacco (Amendment) Act 2000 (the Amending Act) that are not yet in force. The main features of the Bill are –

[3]. Repeals the redundant definition of "controlled shopping centre" as the Act will now apply to all shopping centres as from 1 November 2001.

[4]. Repeals section 3C of the Act which allowed for a retail shopping centre to be declared to be a shopping centre to which the Act applied.

[5]. Amends section 5C of the Act to create an offence of smoking in an enclosed area of a retail shopping centre – 5 penalty units ($500).

[6]. Substitutes a new section 5D(1) of the Act to create an offence for the occupier of an enclosed area of a retail shopping centre if smoking occurs in that area – 5 penalty units ($500).

[8]. Amends section 7 of the Act to prohibit the supply of any non-tobacco products or other benefits in connection with the promotion or the sale of a tobacco product.

[9]. Inserts a new section 13A in the Act to prohibit the mobile selling of tobacco products, and also prohibits authorising another person to do so.

[10]. Amends section 14 of the Act to extend the ban on selling cigarettes in a package containing less than 20. The sale of unpackaged cigarettes is prohibited.

[11]. Substitutes a new section 15B of the Act to impose a requirement on the owners of retail shopping centres to display no smoking signs.

[12]. Inserts a new 15C(3) of the Act to impose an obligation on tobacco retailers to display a sign relating to the prohibition on the sale of tobacco products to persons under the age of 18 years.

[14]. Inserts a new section 13E(2) into the Act to allow inspectors to inspect and measure a tobacco advertisement without the necessity of a warrant, that is visible to the customer at any time the relevant premises are open to the public.

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.

[16]. Inserts a new section 42B(2) into the Act to declare that it is the intention of section 42 of the Act as it applies after the commencement of the various provisions of the Bill to alter or vary section 85 of the Constitution Act 1975.

The Committee notes the following comments from the Second Reading Speech –

I wish to make a statement pursuant to section 85 of the Constitution Act 1975 about the reasons for altering or varying that section by clause 16 of the Tobacco (Further Amendment) Bill. That clause inserts a new subsection (2) in section 42B of the Tobacco Act, which states that it is the intention of section 42, as it will have effect after the amendments come into force, to alter or vary section 85 of the Constitution Act 1975.

Section 42 of the Tobacco Act provides that an action does not lie against a person for the failure to do anything that would constitute an offence under the Act. This was included in the Act when it was first passed in 1987.

The Bill creates a number of new offences. It is necessary that section 42 apply to those offences in the same way that it applies to existing offences.

It would frustrate the purpose of the Act if people felt compelled to undertake activities that were prohibited by the Bill, such as the mobile selling of tobacco products, out of fear of some legal action which may be brought against them if they fail or refuse to do so.

[17]. Amends the Schedule to the Act to allow for infringement notices to be issued for offences that prohibit the display of a tobacco product at a place other than a point of sale; the mobile selling of tobacco products and the sale of cigarettes that are not in a package containing at least 20 cigarettes.

[18]. Amends the commencement provision of the amending Act. Sections 7(1) and 13(1) and (3) of that Act (no-smoking in restaurants and signs in retail outlets) will still come into operation on 1 July 2001. However, sections 8, 9, 10 and 16(1)(b) (point of sale advertising) will now come into operation on 1 January 2002.

[19]. Makes a number of amendments to section 8 of the Amending Act, which will amend section 6 of the Act (tobacco advertisements). [19(1) and (2)] ensure that tobacco products may only be displayed at a point of sale. [19(3)(a)] allows for tobacco displays at a point of sale and representations of tobacco products on vending machines, provided that those displays comply with section 6A of the Act. [19(3)(a)] also allows for notices about tobacco products (price boards) at a point of sale that comply with the prescribed requirements. [19(3)(b)] allows for the regulations regarding price tickets to deal with the way in which those price tickets may be displayed. [19(3)(c)] allows for price tickets on vending machines that meet the prescribed requirements.

[20]. Amends section 9 of the Amending Act which will insert a new section 6A in the Act to regulate the way in which tobacco products may be displayed at a point of sale and the way in which representations of tobacco products may be displayed on vending machines and the way in which tobacco products may be displayed, including the display of cartons at on-airport duty free shops.

[21]. Amends section 13 of the Amending Act, which will insert a new section 15A in the Act to deal with no smoking signs that must be displayed in enclosed restaurants, cafes and dining areas. The amendment requires those signs to meet requirements to be prescribed.

[22]. Amends section 13(3) of the Amending Act which will insert a new section 15C in the Act to require the occupier of a retail outlet to display either a health warning sign or a sign relating to programs assisting in the cessation of smoking. The revised new section 15C requires those signs to meet requirements to be prescribed.

The Committee makes no further comment.