| Appendix 1 – Index of Bills Reported 2001 Appendix 2 – Committee Comments
classified by Terms of Reference
Agricultural and Veterinary Chemicals (Victoria)
(Amendment) Bill
Introduced: 16 May 2001
Second Reading Speech: 17 May 2001
House: Legislative Assembly
Minister introducing Bill: Hon. K. Hamilton MLA
Portfolio responsibility: Minister for Agriculture
Purpose
This Bill is part of a legislative response
to the decision of the High Court in The Queen v Hughes (2000) 171 ALR 155
and other related matters, which includes the Co-operative Schemes (Administrative
Actions) Bill (also in this Digest) and the Agricultural and Veterinary Chemicals
Legislation Amendment Bill (Cth).
In Hughes the High Court indicated that where a State
gave a Commonwealth authority or officer a power to undertake a function under State law
together with a duty to exercise the function, there must be a clear nexus between the
exercise of the function and one or more of the legislative powers of the Commonwealth set
out in the Commonwealth Constitution.
The Bill –
validates things done or omitted to be done by certain Commonwealth
authorities or officers in pursuance of the National Registration Scheme (NRS) for
agricultural and veterinary chemicals that are potentially invalid following the decision
of the High Court in Hughes; and
validates things done or omitted to be done by certain Commonwealth
authorities or officers that are potentially invalid due to certain gaps in the NRS
legislative scheme that have arisen independently of the decision in Hughes; and
ensures that things done or omitted in the future by Commonwealth
authorities or officers in pursuance of the NRS have a constitutionally sound basis.
That Bill validates past actions of Commonwealth authorities and
officers that were not linked to a head of power under the Commonwealth Constitution, and
ensures that no duty, function or power is conferred on a Commonwealth authority or
officer which is beyond the legislative power of the State.
The Committee notes the following comments from the Second Reading
Speech –
The High Court case of The Queen v. Hughes, which is known as the
Hughes case, involved a challenge to the power of the Commonwealth Director of Public
Prosecutions to prosecute breaches of State Corporations Law.
The High Court held that the conferral of a power on a Commonwealth
agency or officer by a State law, coupled with a duty to exercise the power, must be
linked to a Commonwealth head of power. The case also highlighted the need for the
Commonwealth Parliament to authorise the conferral of duties, powers or functions by the
State on Commonwealth authorities and officers. This decision has cast doubt on the
ability of Commonwealth authorities and officers to lawfully exercise powers and to
perform functions under State laws in relation to intergovernmental legislative schemes.
The Bill re-confers powers on Commonwealth authorities and officers,
where the conferral was not specifically authorised by the Commonwealth Parliament. These
provisions apply to the national registration authority, the Commonwealth Director of
Public Prosecutions and the Commonwealth Administrative Appeals Tribunal. The Bill also
confers powers on, and validates past actions of inspectors and analysts, that were done
without proper conferral of power. The Bill will be proclaimed to commence after the
commencement of the Commonwealth Agricultural and Veterinary Chemicals Legislation
Amendment Bill 2001 that will authorise the conferral of these state powers. This
Commonwealth Bill was introduced into the Senate on 3 April this year.
Content and Committee comment
[Clauses]
[2] The Bill comes into operation immediately before the
commencement of clause 4(1) of the Co-operative Schemes (Administrative Actions) Bill.
The Committee notes the following comments from the Second Reading
Speech –
The Bill also confers powers on, and validates past actions of
inspectors and analysts, that were done without proper conferral of power.
The Bill will be proclaimed to commence after the commencement of the
Commonwealth Agricultural and Veterinary Chemicals Legislation Amendment Bill 2001 that
may authorise the conferral of these State powers. This Commonwealth Bill was introduced
into the Senate on the third of April this year.
The Committee notes that by virtue of the
commencement by proclamation provision in clause 4(1) of the Co-operative Schemes
(Administrative Actions) Bill (also in this Digest) the provisions in the Bill will also
commence by proclamation.
The Committee notes that the commencement of both Bills are
dependent on the passage of complementary Commonwealth legislation permitting the referral
of State powers to the Commonwealth. The Committee has no objection to the use of such a
legislative practice in the circumstances. |
[5]. Repeals and re-enacts Part 5 of the Agricultural and
Veterinary Chemicals (Victoria) Act 1994 (the Act), which contains provisions that
apply certain Commonwealth administrative laws as laws of the State. The effect is to
re-apply those laws and to re-confer functions and powers on Commonwealth authorities and
officers.
Note
There is doubt about the efficacy of the previous purported
conferral of functions and powers by Part 5, since the Commonwealth has not expressly
authorised the conferral of those powers and functions by the States and the Northern
Territory. The re-enactment complements provisions in the Commonwealth legislation which
specifically authorises the conferral of certain powers on Commonwealth authorities and
officers. |
[6]. Inserts new sections 28A and 28B into the Act
conferring functions and powers on Commonwealth inspectors and analysts. Proposed section
28B will validate things done or omitted to be done by inspectors and analysts before the
commencement of proposed section 28A. (Refer also to the section 85 of the Constitution
Act 1975 statement below).
[8]. Inserts a transitional provision to provide that the
re-enacted Part 5 applies to matters and things done or omitted to be done before, on and
after the repeal and re-enactment of Part 5.
The Committee notes the retrospective validating provisions
in clauses 6 and 8 and accepts that they do no more than validate anything done or omitted
to be done prior to the commencement of the provisions in the Bill, and that were
considered lawfully done or omitted to be done prior to the High Court’s decision in
‘Hughes’.
The Committee accepts that the amending provision does not trespass
unduly upon rights and freedoms within the meaning of section 4D(a)(i) of the
Parliamentary Committees Act 1968. |
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.
[7]. Inserts a new section 31A into the Act that
states the intention of the new section 28B to alter or vary section 85 of the Constitution
Act 1975. The alteration or variation is necessary to prevent the bringing before
the Supreme Court of any action, suit or proceeding in relation to anything done or
omitted to be done by a Commonwealth inspector or analyst before the commencement of [6].
The reason for preventing the bringing of these proceedings is to
protect the State from potential liabilities arising out of past actions or omissions by
Commonwealth inspectors and analysts.
The Committee notes the following comments from the Second Reading
Speech –
The proposed section 28B, being inserted by clause 6 of the Bill, is
intended to alter or vary section 85 of the Constitution Act 1975. The alteration or
variation is to the extent necessary to prevent the bringing before the Supreme Court of
any action, suit or proceeding in relation to anything done or omitted to be done by a
Commonwealth inspector or analyst before the commencement of the proposed clause 6. Before
the enactment of clause 6 duties functions and powers had not been properly conferred on
these inspectors and analysts.
The reason for preventing the bringing of these proceedings is to
protect the State from potential liabilities arising out of past actions or omissions by
Commonwealth inspectors and analysts.
The Bill complements the proposed Cooperative Schemes (Administrative
Actions) Bill 2001, which is also before the Parliament, proposed by the Attorney-General.
This other Bill will validate past acts of Commonwealth authorities and officers that were
not linked to a Commonwealth head of power under the constitution. It will also place the
NRS on a more secure constitutional footing by ensuring that no duty, function or power is
conferred on a Commonwealth authority or officer which is beyond the legislative power of
the State.
The Agricultural and Veterinary Chemicals (Victoria) (Amendment) Bill
is vital to prevent the real threat of legal challenge to actions and decisions by
Commonwealth authorities and officers, which is integral to the NRS. The Bill is also
vital to the government's continued commitment to have an effective uniform national
registration system for agricultural and veterinary chemicals.
| 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.
Appropriation (2001/2002) Bill
Introduced: 15 May 2001
Second Reading Speech: 15 May 2001
House: Legislative Assembly
Minister introducing Bill: Hon. J. Brumby MLA
Portfolio responsibility: Treasurer
Purpose
This Bill provides appropriation authority
for payments from the Consolidated Fund in respect of the 2001/2002 financial year. The
amounts contained in Schedule 1 to the Bill provide for the ongoing operations of
departments, new output initiatives and new asset investment in so far as these are funded
by way of annual appropriation. The Schedule also includes payments made on behalf of the
State.
Content and Committee comment
[Clauses]
[2]. The Act comes into operation on the day it receives Royal
Assent.
[3]. The Treasurer may issue the stated amount out of the Consolidated
Fund in respect of the financial year 2001/2002 for the purposes set out in Schedule 1 to
the Bill. Sub-clauses (2) and (3) provide authority for additional appropriation if
necessary for increases in salaries and related costs that may be the result of
determinations or legislation during the year.
[4]. The Consolidated Fund is appropriated to the extent necessary for
the purposes included in [3].
Schedules
Schedule 1 sets out the 8 Departmental Votes Estimates.
The Committee makes no further comment.
Appropriation (Parliament 2001/2002) Bill
Introduced: 15 May 2001
Second Reading Speech: 15 May 2001
House: Legislative Assembly
Minister introducing Bill: Hon. J. Brumby MLA
Portfolio responsibility: Treasurer
Purpose
This Bill provides appropriation authority
for payment from the Consolidated Fund to the Parliament in respect of the 2001/2002
financial year. The amounts contained in Schedule 1 to the Bill provide for the ongoing
operations of the Parliament, new output initiatives and new asset investment in so far as
these are funded by way of annual appropriation.
Content and Committee comment
[Clauses]
[2]. The Act comes into operation on the day it receives Royal
Assent.
[3]. The Treasurer may issue the stated amount out of the Consolidated
Fund in respect of the financial year 2001/2002 for the purposes set out in Schedule 1 to
the Bill. Sub-clauses (2) and (3) provide authority for additional appropriation if
necessary for increases in salaries and related costs that may be the result of
determinations or legislation during the year.
[4]. The Consolidated Fund is appropriated to the extent necessary for
the purposes included in [3].
The Committee makes no further comment.
Constitution (Parliamentary Privilege) Bill
Introduced: 16 May 2001
Second Reading Speech: 17 May 2001
House: Legislative Assembly
Minister introducing Bill: Hon. S. Bracks MLA
Portfolio responsibility: Premier
Purpose
The Bill amends Constitution Act 1975
and will enable certain reports and documents that may or are required to be tabled before
the Parliament to be published when Parliament is not sitting and to provide that reports
and documents published in accordance with this Act attract Parliamentary Privilege.
As Honourable members will be aware the practice with previous Royal
Commissions has been for the reports of those commissions to be tabled in each house at
the command of the Governor and be ordered to be printed. Such a process causes these
reports to attract parliamentary privilege pursuant to sections 73 and 74 of the
Constitution Act 1975.
However, should Parliament not be sitting at the time the remaining
volume or volumes of the report of the Metropolitan Ambulance Service Royal Commission are
delivered and as the report is of great public interest, an alternative means of
publication of this and other reports is required.
Unlike the Longford Royal Commission (Report) Act 1999, this Bill will
also provide for the publication of reports of royal commissions and boards of inquiry and
other reports that may be made to Parliament.
Such reports include parliamentary committee reports and reports of the
Ombudsman, Auditor-General and other statutory office-holders.
Accordingly, the Bill provides for a process whereby these reports may
be published and attract parliamentary privilege and that sections 73 and 74 of the
Constitution Act apply to these reports.
I am sure that all Honourable members will support this bill as it will
ensure prompt public access and scrutiny of these reports and ensure that the published
reports will attract absolute privilege.
Note
Section 19(2) of the Constitution Act 1975 provides that
‘ The Parliament may by Act legislate for or with respect to the privileges
immunities and powers to be held enjoyed and exercised by the Council and the Assembly and
by the committees and the members thereof respectively’.
The absolute privilege enjoyed by reports and documents tabled in the
Parliament are specifically provided for in sections 73 and 74 of the Constitution Act
1975. |
Content and Committee comment
[Clauses]
[2]. The Act comes into operation on the day after Royal Assent.
[3]. Inserts new sections 74AB, 74AC, 74AD, 74AE, 74AF, 74AG and 74AH
into the Constitution Act 1975 to provide for the publication of various
reports and documents when neither House of Parliament is sitting. Publication of these
reports and documents in accordance with these sections vests the reports and documents
with Parliamentary Privilege.
Section 74AB provides for the publication of reports of Royal
Commissions, Boards of Inquiry and documents provided by a Minister and approved by
the Speaker or the President. The Minister responsible for the Commission of Inquiry or
the Board of Inquiry (sections 88B and 88C of the Constitution Act 1975)
must cause the report or document to be published by the Government Printer. These reports
or documents are deemed to have been tabled in Parliament and ordered to be published by
Parliament.
Section 74AC provides that section 4O of the Parliamentary
Committees Act 1968 (requiring reports to be laid before the Parliament) is deemed
to have been complied with if, after a Committee has adopted a report, the chairman of the
Committee gives a copy of the report to the Speaker and the President and causes the
report to be tabled on the next sitting day of Parliament.
Section 74AD deals with the publication of reports that the Ombudsman
is required to, or may, make to Parliament under the Ombudsman Act 1973.
Section 74AE deals in like manner to 74AC with the publication of
reports of the Auditor-General made under the Audit Act 1994.
Section 74AF a person or body who has a duty under an Act to
report to Parliament may give the report to the Speaker and the President. Such a report
must be published and tabled on the next sitting day of Parliament.
Section 74AG a person or body who has a discretion under an Act
to report to Parliament may give the report to the Speaker and the President. Approval of
the Speaker or the President is required. Such a report must be published and tabled on
the next sitting day of Parliament.
Section 74AH the Speaker and the President must notify all Members
of Parliament in writing or by fax, e-mail or other electronic communication that a report
or document has been received in accordance with the above sections.
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.
[4]. Inserts a provision stating that the
provisions in [3] amending the Constitution Act 1975 alter or vary section
85 of that Act and have effect as a direct amendments to that section.
Reports and documents published in the manner contemplated by the
provisions in the Bill are absolutely privileged as if the reports or documents had been
laid or tabled before Parliament in the ordinary manner. Absolute privilege acts as a bar
to the bringing of legal proceedings that may otherwise be available absent the privilege.
For the avoidance of doubt that reports and documents tabled in the
manner permitted by the new provisions attract parliamentary privilege and exclude the
jurisdiction of the Supreme Court, the clause inserts a new section 85(8B) to state that
the new sections alter or vary section 85 as a direct amendment.
The Committee notes that pursuant to section 85(5) of the
Constitution Act 1975 as a direct amendment to the Constitution Act 1975 no
specific section 85 declaration or statement in the second reading speech is mandatory.
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.
Co-operative Schemes (Administrative Actions) Bill
Introduced: 16 May 2001
Second Reading Speech: 17 May 2001
House: Legislative Assembly
Minister introducing Bill: Hon. R. Hulls MLA
Portfolio responsibility: Attorney-General
Purpose
This Bill is part of a legislative response
to the decision of the High Court in The Queen v Hughes (2000) 171 ALR 155
and other related matters, which includes the Agricultural and Veterinary Chemicals
(Victoria) (Amendment) Bill and the Commonwealth Agricultural and Veterinary Chemicals
Legislation Amendment Bill 2001.
The Bill ensures that functions or powers are not imposed on
Commonwealth authorities and officers in connection with administrative actions under the
schemes if their imposition would exceed the legislative powers of the State, and
validates any such previous invalid administrative action.
The Committee notes the following comments from the Second Reading
Speech –
As Members will be aware having recently debated and passed the
Corporations (Commonwealth Powers) Bill 2001, recent legal challenges and decisions of the
High Court of Australia have cast doubt on the constitutional framework which supports the
Corporations Law. These decisions, particularly the decision in The Queen v. Hughes, have
also cast doubt on the constitutional framework supporting other cooperative schemes.
In the Hughes case, the High Court held that conferral of a power
coupled with a duty on a Commonwealth officer or authority by a state law must be
referable to a Commonwealth head of power. The decision in Hughes has cast doubt on the
ability of Commonwealth officers or authorities to exercise some functions under various
cooperative schemes entered into between Victoria and the Commonwealth.
The purpose of the Co-operative Schemes (Administrative Actions) Bill
2001 is to validate past actions undertaken by Commonwealth officers or authorities under
certain state laws relating to various cooperative schemes, to the extent necessary to
give their actions the same effect as they would have had if they had been taken by duly
authorised state officers or authorities. The Bill will also ensure that the rights of all
persons are as though administrative actions taken by commonwealth officers or authorities
had been taken by duly authorised state officers or authorities.
…
The Bill also provides for other cooperative schemes that may be
affected by the Hughes case to be included under the bill by proclamation of the Governor
in Council, as the schemes are identified.
Content and Committee comment
[Clauses]
[2]. The provisions in the Bill will commence by proclamation.
The Committee notes that by virtue of this provision, the
Agricultural and Veterinary Chemicals (Victoria) (Amendment) Bill will commence by
proclamation.
The Committee notes that the commencement of the Bill is dependent on
the passage of complementary Commonwealth legislation. The Committee has no objection to
the use of a commencement by proclamation clause in the circumstances. |
[4]. Defines the relevant State Acts to which the Bill applies, namely,
the Agricultural and Veterinary Chemicals (Victoria) Act 1994 and any
other State Act declared by proclamation of the Governor in Council. This will enable
the relevant commencement time for the validation under a proposed relevant State
Act to be declared by proclamation.
The Committee notes that this clause will allow the Bill to
apply to ‘relevant State Acts’ and that the definition of relevant State Acts
includes any Act specified in a proclamation published in the Government Gazette.
As such the Bill will effectively validate past acts and omissions
(clauses 4 and 6) by means of proclamation, and in the process cloak those acts or
omissions with an amendment to section 85 of the Constitution Act 1875 providing a
statutory immunity from liability and proceedings in the Supreme Court (clauses 13 and
14).
The Committee notes that it has a statutory reporting responsibility
pursuant to sections 4D(a)(v) of the Parliamentary Committees Act 1968 to report on any
Bill introduced in the Parliament which the Committee considers may insufficently subject
the exercise of legislative power to parliamentary scrutiny and to report on any Bill
pursuant to section 4D(b) of the Parliamentary Committees Act 1968 which repeals alters or
varies section 85 of the Constitution Act 1975.
The Committee considers it may be problematic for the Committee to
scrutinise and report on Acts proclaimed under clause 4. Further the Committee doubts that
it would have jurisdiction to report on such Acts given that they would not be Bills
introduced in the Parliament but rather Acts identified by proclamation. In this
respect the Committee notes that other than Acts introduced between 3 November 1999 and 31
December 1999 it has otherwise no current jurisdiction to report on Acts.
The Committee is also concerned that the clause may constitute a
‘Henry VIII’ clause permitting legislative acts to occur by means of subordinate
instruments without parliamentary authority, other than the authority to legislate by
means of proclamation. Validating actions taken under primary legislation may be
characterised as the exercise of legislative power and the exercise of legislative power
by means of proclamation may be an inappropriate delegation of legislative power within
the meaning of section 4D(a)(iv) of the Parliamentary Committees Act 1968.
The Committee is concerned in respect to a number of matters.
Whether it is constitutional within the meaning of section 85 of the
Constitution Act 1975 to provide an immunity from liability and proceedings by means of a
proclamation identifying an Act as a ‘relevant State Act’ (clause 4). Further
whether within the meaning of section 4D(b)(iii) of the Parliamentary Committees Act 1968
this raises an issue as to the jurisdiction of the Supreme Court, and the full
implications of that issue.
Whether the clause may be contrary to section 4D(a)(v) of the
Parliamentary Committees Act 1968 in that it may insufficiently subject the exercise of
legislative power to parliamentary scrutiny.
Whether the Committee is able to discharge its statutory reporting
responsibility under 4D(b) of the Parliamentary Committees Act 1968 in the event that Acts
are proclaimed as ‘relevant State Acts’.
Whether the validation, by means of proclamation, of acts and
omissions taken under the authority of primary legislation is not an inappropriate
delegation of legislative power within the meaning of section 4D(a)(iv) of the
Parliamentary Committees Act 1968.
The Committee also seeks information as to why the Acts that may be
proclaimed cannot be identified and placed in a schedule to a Bill or brought to the
attention to the Parliament in a manner amenable to Parliamentary scrutiny.
The Committee will write to the Attorney-General to seek further
information concerning these matters. |
[6]. Provides that the proposed Part 2 (sections 6 to 10) applies to
previous invalid administrative actions, namely any such actions taken or purportedly
taken under a relevant State Act before the commencement time in relation to that Act.
[8]. Provides that every invalid administrative action to which Part 2
applies has (and is deemed always to have had) the same force and effect as it would have
had if it had been taken by a duly authorised State authority or officer of the State.
The clause does not in terms validate administrative actions taken by
Commonwealth authorities and officers, but rather attaches to the actions retrospectively
the same force and effect as would have ensued had the actions been taken by State
authorities and officers.
The Committee notes the retrospective validating provisions
in Part 2 and accepts that they do no more than validate anything done or omitted to be
done prior to the commencement of the provisions in the Bill, and that were considered
lawfully done or omitted to be done prior to the High Court’s decision in
‘Hughes’.
The Committee accepts that the amending provision does not trespass
unduly upon rights and freedoms within the meaning of section 4D(a)(i) of the
Parliamentary Committees Act 1968. |
[15]. Empowers the making of regulations for the purposes of the
proposed Act.
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.
[13]. Provides that the proposed Act does not
give rise to any liability against the State arising from the enactment of the Bill or the
operation of a proclamation under [4].
[14]. States that it is the intention of [13] to alter or vary section
85 of the Constitution Act 1975.
The Committee notes the following comments from section 85 statement in
the Second Reading Speech –
Proposed clause 13 of the Bill is intended to alter or vary section
85 of the Constitution Act 1975 to the extent necessary to prevent the bringing before the
Supreme Court of any proceedings against the State of Victoria in respect of an
administrative action validated by this Bill. The reason for preventing the bringing of
any proceedings is to protect the State from potential liabilities arising out of past
administrative actions undertaken by Commonwealth officers or authorities under state-
cooperative scheme laws.
The Government considers the Co-operative Schemes (Administrative
Actions) Bill 2001 as being vital to restore certainty to the effective operation of
various cooperative schemes to which Victoria is a party.
| The Committee has requested further information in respect to clause 4
and pending a response from the Attorney-General makes no formal report whether the
section 85 of the Constitution Act 1975 clause is appropriate or otherwise. |
The Committee makes no further comment.
Corporations (Administrative Actions) Bill
Introduced: 16 May 2001
Second Reading Speech: 17 May 2001
House: Legislative Assembly
Minister introducing Bill: Hon. R. Hulls MLA
Portfolio responsibility: Attorney-General
Purpose
The object of this Bill is to give validity
to certain potentially invalid administrative actions taken before the commencement of the
proposed Act by Commonwealth authorities or officers acting under powers or functions
conferred on them by laws of the State relating to corporations.
For further background information see Alert Digest No.3 of 2001 (pages
6-8) and the preamble to the Corporations (Commonwealth Powers) Bill introduced on
20 March 2001.
The High Court’s decision in Hughes
In The Queen v Hughes (2000) 171 ALR 155, the High
Court indicated that where a State gave a Commonwealth authority or officer a power to
undertake a function under State law together with a duty to exercise the function, there
must be a clear nexus between the exercise of the function and one or more of the
legislative powers of the Commonwealth set out in the Commonwealth Constitution.
This Bill provides that every invalid administrative action taken under
the current or previous scheme has (and is deemed always to have had) the same force and
effect as it would have had if it had been taken by a State authority or officer of the
State on which or on whom the relevant function or power had been conferred.
This provision overcomes any doubts about the validity of
administrative actions by Commonwealth authorities or officers under the current and
previous schemes. Other jurisdictions propose to introduce similar legislation to achieve
a uniform effect.
This Bill preserves rights and liabilities potentially affected by
invalid administrative actions, and specifically confirms the validity of the registration
or incorporation of companies under the current and previous schemes.
This Bill applies to administrative actions taken before the
commencement of the proposed Corporations legislation. The validity of future actions by
Commonwealth authorities and officers will be assured by the reference of matters to the
Commonwealth Parliament by the Corporations (Commonwealth Powers) Bill proposed to
be enacted by each State. Both Victoria and New South Wales have enacted this legislation.
The Corporations (Commonwealth Powers) Act 2001 (NSW) came into operation on 4
April 2001 and the new Corporations legislation has been introduced into the Commonwealth
Parliament in reliance on that reference of powers by New South Wales.
Content and Committee comment
[Clauses]
[2]. Provides that the Act comes into operation immediately before
the Corporations Act 2001 (Cth) (the Commonwealth Act) comes into operation.
| The Committee notes the Bill is dependent on the commencement of Commonwealth
legislation and is part of a co-operative Commonwealth, States and Territories agreement
by which the States refer their corporations powers to the Commonwealth Parliament. The
Committee accepts the need for the contingent commencement provision in this Bill. |
[3]. Defines certain words and expressions used in the proposed Act.
The expression invalid administrative action is defined as an administrative action
that was taken before the commencement of the proposed Act by a Commonwealth authority or
officer pursuant to a function or power conferred under the current or previous scheme
(the relevant function or power), and that is invalid because its conferral on the
Commonwealth authority or officer is not supported by a head of power in the Commonwealth
Constitution.
[4]. Deals with the application and operation of the proposed Act. The
Act binds the Crown. The Act extends to affect rights and liabilities that are or have
been the subject of legal proceedings but does not affect rights and liabilities arising
between parties to legal proceedings heard and finally determined before the commencement
of the proposed Act to the extent to which they arise from, or are affected by, an invalid
administrative action.
[5]. Every invalid administrative action has (and is deemed always to
have had) the same force and effect as it would have had if it had been taken by a duly
authorised State authority or officer of the State. The clause does not in terms validate
administrative actions taken by Commonwealth authorities and officers, but rather attaches
to the actions retrospectively the same force and effect as would have ensued had the
actions been taken by State authorities and officers.
| The Committee notes the effect of the provision and other provisions in the Bill
retrospectively validate past invalid administrative actions taken before the commencement
of the proposed Commonwealth Act. |
[6]. Declares that the rights and liabilities of all persons are (and
always have been) for all purposes the same as if every invalid administrative action had
been taken by a duly authorised State authority or officer of the State.
[7]. Specifically declares that [5 and 6] extend to the registration,
purported registration, incorporation or purported incorporation of corporations made by
administrative actions taken prior to the commencement of the Commonwealth Act.
Note
The formation of corporations was held by the High Court in
State of New South Wales v The Commonwealth of Australia (1990) 169 CLR 482 to lie
outside the legislative competence of the Commonwealth Parliament. This constitutional
limitation is one of the major reasons for the Federal/State co-operative corporations
schemes that have been in place since the early 1960’s in one form or another. |
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.
[10]. Provides that the proposed Act does not
give rise to any liability against the State.
[11]. Declares that it is the intention of [10] to alter or vary
section 85 of the Constitution Act 1975.
Proposed clause 10 of the Bill is intended to alter or vary section
85 of the Constitution Act 1975 to the extent necessary to prevent bringing before the
Supreme Court any proceedings against the State of Victoria in respect of an
administrative action validated by this Bill. The reason for preventing the bringing of
any proceedings is to protect the State from potential liabilities arising out of past
administrative actions undertaken by Commonwealth officers or authorities.
The Bill applies to administrative actions taken before the
commencement of the proposed corporations legislation. The validity of future actions by
Commonwealth authorities and officers will be assured by the reference of matters to the
Commonwealth Parliament by the Corporations (Commonwealth Powers) Act 2001, which each
state is proposing to enact and by transitional amendments to the current scheme being
included in the Corporations (Consequential Amendments) Bill.
| 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.
Corporations (Ancillary Provisions) Bill
Introduced: 16 May 2001
Second Reading Speech: 17 May 2001
House: Legislative Assembly
Minister introducing Bill: Hon. R. Hulls MLA
Portfolio responsibility: Attorney-General
Purpose
The purpose of the Bill is to enact ancillary
provisions, including transitional provisions, relating to the proposed new corporations
legislation to be enacted by the Commonwealth Parliament following references of matters
relating to corporations made by the States under section 51 (xxxvii) of the Commonwealth
Constitution.
The Victorian reference is made under the Corporations
(Commonwealth Powers) Act 2001 (assented to on 8 May 2001). That Act refers to the
Commonwealth Parliament certain matters relating to corporations, corporate regulation and
financial products and services. New South Wales has enacted a similar Act and the other
States are to introduce corresponding legislation. The Commonwealth proposes to enact,
under the powers conferred by these references and other powers available to it, a Corporations
Act 2001 (Cth) and an Australian Securities and Investments Commission Act 2001
(Cth).
This Bill, together with the Corporations (Commonwealth Powers)
Act 2001, a Corporations (Consequential Amendments) Bill and a Corporations
(Administrative Actions) Bill, make up the legislative package needed in Victoria for
the new corporations arrangements.
The Committee notes the following comments from the Second Reading
Speech –
The effect of this Bill is twofold.
Firstly, the Bill updates references in Victorian legislation from the
old Corporations Law regime to the new Commonwealth Corporations Act.
Secondly, the new Corporations Act states, that is not intended to
cover the field in the area of corporations.
This means that any indirect inconsistencies between the Commonwealth
Act and any Victorian Act do not necessarily result in the invalidity of the Victorian
provisions.
However, as a result of the referral of corporations power, any direct
inconsistencies between Victorian legislation and the Commonwealth Act will result
in invalidity due to the operation of section 109 of the Commonwealth constitution, which
provides that the Commonwealth provision is to prevail.
In order to protect these Victorian provisions, some legislation needs to
be amended to insert declarations that the Corporations Act is not to apply.
Content and Committee comment
[Clauses]
[2]. The proposed Act comes into operation immediately before the
new Commonwealth Corporations Act.
| The Committee notes the Bill is dependent on the commencement of Commonwealth
legislation and is part of a co-operative Commonwealth, States and Territories agreement
by which the States refer their corporations powers to the Commonwealth Parliament. The
Committee accepts the need for the contingent commencement provision in this Bill. |
[7]. Preserves all accrued rights and liabilities under the current
corporations legislative scheme (the scheme) and legal proceedings in respect to those
rights and liabilities under the scheme may be commenced or continued. The clause also
cancels certain rights and liabilities where an identical right or liability is
substituted by the new Commonwealth legislation. It also terminates certain legal
proceedings where equivalent legal proceedings are deemed to have been brought under the
Commonwealth legislation in the same court.
[9]. Preserves certain court proceedings despite the cessation of
operation of the national scheme laws and for certain court orders to cease to have
effect.
[10]. Saves existing court rules made under the national scheme laws
(i.e. the current Corporations Law scheme).
[22]. Enables regulations to be made under the Act consequentially
amending certain other statutory rules without complying with Part 2 (Preparation of
Statutory Rules) of the Subordinate Legislation Act 1994. Without this
clause it would be necessary for each statutory rule to be amended by a separate statutory
rule.
Power to amend certain statutory rules
(1) The Governor in Council, on the recommendation of the Minister,
may make regulations amending a statutory rule made by the Governor in Council in the
exercise of a power conferred by any Act.
(2) The Minister may make a recommendation under sub-section (1) only
if he or she considers that each amendment proposed to be made by the regulations is
consequential on the enactment, or the proposed enactment, by the Parliament of the
Commonwealth of the new Corporations Act or the new ASIC Act.
(3) Part 2 of the Subordinate Legislation Act 1994 does not apply to
regulations made under this section.
(4) Nothing in this section prevents a statutory rule from being
amended otherwise than by regulations made under this section, including an amendment of a
kind referred to in sub-section (2).
Note
Part 2 of the Subordinate Legislation Act 1994 deals with
the preparation of statutory rules, the need for consultation under the Premier’s
guidelines, regulatory impact statements (RIS) their content, public notices in respect to
RIS and exemptions and exceptions in respect to the need to prepare RIS. |
| The Committee accepts that the regulation making powers allowing exemption from
Part 2 of the Subordinate Legislation Act 1994 are appropriate to give effect to the
transitional purposes of the Act and are necessary as a consequence of the new
Corporations Act 2001 (Cth). |
[25]. Enables regulations to be made for the purposes of the proposed
Act.
The regulations may modify the operation of the transitional provisions
contained in Part 2 (sections 6 to 12) and may facilitate the operation of State laws
under the regime provided by the new Commonwealth legislation.
25. 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 necessary to be
prescribed to give effect to this Act.
(2) Without limiting sub-section (1), the regulations may provide that
certain provisions of Part 2 are taken to be modified as set out in the regulations. Those
provisions then have effect as if they were so modified.
The Committee notes the regulation making power
provided in clause 25(2) permitting modification of the provisions in Part 2 of the Bill
by regulation. The Committee is aware that the provision mirrors the identical provision
in clause 1409(3) of the proposed Commonwealth Corporations Bill as tabled in the New
South Wales Parliament.
Whilst the Committee is mindful of the complexities
involved in this Bill and associated Bills complementing the referral of corporations
powers to the Commonwealth Parliament it nevertheless points out that the provision may
constitute an inappropriate delegation of legislative power within the meaning of section
4D(a)(iv) of the Parliamentary Committees Act 1968. If such a provision is desirable or
necessary it may be preferable for a sunset clause to be attached to any provision
allowing the modification or amendment of Acts by means of regulation or subordinate
instruments.
The Committee will write to the Attorney-General to seek
further information concerning the necessity to use such a regulation making power in this
instance. |
The Committee makes no further comment.
Corporations (Consequential Amendments) Bill
Introduced: 16 May 2001
Second Reading Speech: 17 May 2001
House: Legislative Assembly
Minister introducing Bill: Hon. R. Hulls MLA
Portfolio responsibility: Attorney-General
Purpose
The purpose of the Bill is to make amendments
to a number of Acts consequential on the proposed new corporations legislation to be
enacted by the Commonwealth following references of matters relating to corporations made
by the States under section 51 (xxxvii) of the Commonwealth Constitution.
This Bill, together with the Corporations (Commonwealth Powers)
Act 2001, a Corporations (Ancillary Provisions) Bill and a Corporations
(Administrative Actions) Bill, make up the legislative package needed in Victoria for
the new corporations arrangements.
Also see comments on the 2 previous Bills in this Digest and the report
on the Corporations (Commonwealth Powers) Act 2001 in Digest No. 3 of 2001.
The Committee also notes the following comments from the Second Reading
Speech –
The Corporations (Consequential Amendments) Bill amends over 120
Acts that contain references to the Corporations Law, or to a previous corporations law
scheme, or that otherwise need amendment because of the change from a state-based to a
commonwealth-based system of corporations law.
This wide-ranging amendment of the statute book is being made so that
the new arrangements for a national Corporations Law are more readily understood as they
apply to the text of state acts. The alternative, and less satisfactory approach would
have been to rely on interpretation provisions of a general nature without direct
amendment of individual acts.
Content and Committee comment
[Clauses]
[2]. The provisions in the Bill come into operation by
proclamation.
| The Committee has previously noted the need or desirability of related
corporations powers referral legislation to have flexible commencement provisions. The
Committee considers that the commencement provision in this Bill is acceptable under the
circumstances. |
[3]. Sets out the Acts specified in the headings in the Schedule to be
amended for the purposes of the Bill.
Schedule
The Schedule sets out the consequential amendments necessary to
various Victorian Acts that contain references to corporations legislation so that those
references operate in future as references to Commonwealth law as enacted in the proposed Corporations
Act 2001 (Cth) and Australian Securities and Investments Commission Act 2001 (Cth).
The Schedule –
amends provisions referring to the Corporations Law, or any part of
it, so that they refer in future to the Corporations Act 2001 (Cth), or the
relevant part of it;
corrects references to particular provisions of the Corporations Law
so that they are read in future as references to the correct provisions of the Corporations
Act 2001 (Cth) (this includes amendments consequential on the Corporate Law
Economic Reform Program Act 1999 (Cth) (CLERP));
makes similar amendments and corrections in relation to existing
references to the Companies (Victoria) Code and other Code Acts;
in accordance with Part 1.1A of the proposed Corporations Act 2001
(Cth) of the Commonwealth, continues certain existing exemptions, exceptions and
exclusions from the operation of the Corporations Law;
re-enacts provisions in Acts that apply particular provisions of the
Corporations Law as if they were part of those Acts, so that the provisions continue to
apply as State law;
makes other miscellaneous adjustments necessary for the new
corporations scheme,
The schedule does not amend every reference in the statute book to the
Corporations Law or its predecessors. The Corporations (Ancillary Provisions) Bill
contains a safety net translation for references that are not directly amended. This means
that unamended references to the Corporations Law will be read as including a reference to
the new Corporations Act, unless the context otherwise requires. However, there are some
references to the Corporations Law that have been identified as continuing to be correct
as they currently read, whether because they are historically correct or for any other
reason, and these will be preserved by regulations made under the Corporations
(Ancillary Provisions) Bill.
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.
Items 53.19 and 97.17 in the Schedule
respectively amend the Gaming and Betting Act 1994 and the Rail
Corporations Act 1996.
The Committee notes the following comments in the section 85 statement
in the Second Reading Speech –
Item 53.19 inserts a new section 141(2) into the Gaming and
Betting Act 1994. That new section states that it is the intention of section 62 of that
Act, as it applies to part 4 of that Act as amended by the Bill, to alter or vary section
85 of the Constitution Act 1975.
Section 62 of the Gaming and Betting Act 1994 provides that no
liability attaches to the minister, the Victorian Casino and Gaming Authority, the
licensee under that Act or any officer or auditor of the licensee for any act or omission
in good faith in the exercise or discharge or purported exercise or discharge of a power
or duty under part 4 of that Act. Part 4 deals with the regulation of shareholdings. As
part 4 is being amended by the Bill, section 62 will have a new application following the
amendments.
The reason for altering or varying the jurisdiction of the Supreme
Court so that it cannot entertain actions against a person specified in section 62 is to
ensure that the maximum levels of shareholdings stipulated in part 4 can be enforced by a
relatively simple procedure and without prejudice to the interest of other shareholders.
Item 97.17 of the Schedule to the Bill inserts a new section
105(2) into the Rail Corporations Act 1996. That new section states that it is the
intention of section 100(5), as it applies to a determination of the Office of the
Regulator-General (ORG) under part 5 of that Act as amended by the Bill, to alter or vary
section 85 of the Constitution Act 1975.
Section 100(5) provides that a determination of ORG under part 5 cannot
be challenged or called into question. As part 5 is being amended by the Bill, that
section will have a new application following the amendments.
The reason for altering or varying the jurisdiction of the Supreme
Court to prevent it from entertaining challenges to a determination of ORG under part 5 is
to ensure that access to the rail and tram infrastructure cannot be delayed or jeopardised
through the inherent time delays involved in judicial review. This is necessary to ensure
that the introduction of new transport services is not delayed or threatened. Removing the
ability to review the regulator's determination also removes the potential for operators
to constantly seek review of access terms and conditions in the hope of obtaining more
favourable determinations.
| 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.
Duties (Amendment) Bill
Introduced: 16 May 2001
Second Reading Speech: 17 May 2001
House: Legislative Assembly
Minister introducing Bill: Hon. J. Brumby MLA
Portfolio responsibility: Treasurer
Purpose
The object of the Bill is to make technical
amendments to the Duties Act 2000 (the Act), prior to its commencement on 1
July 2001. The amendments clarify a number of the provisions within the Act, as well as
make certain adjustments, where necessary, to ensure that the Victorian legislation is
consistent with other jurisdictions. The Bill makes some minor policy changes, including
providing a new exemption for transfers of dutiable property resulting from the
amalgamation of industrial organisations.
The Bill also makes a minor technical amendment to the Land Tax
Act 1958.
Content and Committee comment
[Clauses]
[2]. Parts 1 and 3 of the Bill come into operation on Royal Assent.
Part 2 comes into operation on 1 July 2001.
[8]. Inserts a new section 48A in the Act, which exempts from duty all
transfers of dutiable property made pursuant to the amalgamation of employee or employer
organisations under the Workplace Relations Act 1996 (Cth).
[19]. Inserts new sections 234A and 234B in the Act to exempt from duty
an application for the transfer of registration of a motor vehicle made as a consequence
of the amalgamation of two or more industrial organisations under the Workplace
Relations Act 1996 (Cth).
The Committee notes the following comments from the Second Reading
Speech –
A new exemption from duty across all areas of liability is proposed
for trade unions and employer associations which transfer dutiable property pursuant to
amalgamations under the Workplace Relations Act 1996 (Cth). This exemption applies in most
other jurisdictions. New South Wales, for example, exempts transfers of land and shares,
but not motor vehicles. It is proposed that Victoria would exempt all transfers of
dutiable property. The revenue impact of this proposal is likely to be minimal.
[26]. Repeals Part 4 of Chapter 12 and abolishes the use of duty stamps
for court documents. Duty will not be paid by cash, cheque or by other electronic means.
[32]. Amends section 3 of the Land Tax Act 1958 by
inserting a new sub-section (5A) providing that, despite anything to the contrary in the
Land Tax (Equalization Factors) Regulations 2000, the prescribed equalization factor for
City of Melbourne land for the current land tax year is 1·06.
The Committee notes the following comments from the Second Reading
Speech –
The Bill also makes a minor, but significant, amendment to the Land
Tax Act 1958.
On 2 April 2001, the Valuer-General advised the commissioner of state
revenue that the equalisation factor for the City of Melbourne was incorrect. The
equalisation factor provided was 1.14, when, in fact, it should have been 1.06.
Prior to receiving the Valuer-General's advice, the Commissioner had
issued approximately 8000 land tax assessments in relation to City of Melbourne land. The
assessments, calculated correctly in accordance with the law, are nonetheless based upon
the incorrect equalisation factor and thus overvalue City of Melbourne land by
approximately 8 per cent than if the correct factor had been used.
The Bill will correct this error.
Taxpayers will not be inconvenienced because the commissioner will
adjust their final instalment notice or refund payments where appropriate.
The Committee makes no further comment.
Public Notaries Bill
Introduced: 16 May 2001
Second Reading Speech: 17 May 2001
House: Legislative Assembly
Minister introducing Bill: Hon. R. Hulls MLA
Portfolio responsibility: Attorney-General
Purpose
The Bill deals with the appointment of public
notaries and provides for their appointment and enrolment by the Supreme Court, and for
those purposes amends the Legal Practice Act 1966 the Instruments Act
1958 and the Evidence Act 1958.
The Committee notes the following comments from the Second Reading
Speech –
Honourable Members may be surprised to hear that a Victorian who
wants to be appointed as a public notary must apply to the Archbishop of Canterbury in
England. The role of the Archbishop in appointing notaries dates back to the 1530s when
King Henry VIII broke away from Rome. Unfortunately, only Victoria and Queensland still
continue this archaic procedure under which the appointment of Australians, for the
purpose of notarial acts in Australia, is made by a foreign authority.
…
Applicants will also be required to complete a course of study approved
by the Council of Legal Education. The Society of Notaries has already had preliminary
discussions with the Leo Cussen Institute about developing an appropriate course.
Rather than create a new bureaucratic body to regulate notaries, the
existing structures in place for regulating legal practitioners will be relied on. If a
notary ceases to hold a practising certificate authorising them to practise as a
principal, they will not be entitled to practise as a notary. Similarly, the Bill provides
that if a person is removed from the roll of legal practitioners, they will also be
removed from the roll of notaries.
Finally, the Bill deems existing notaries to be appointed for a period
of six months from the commencement date. Within that period, a notary can sign the roll
of notaries without needing to make an application to the Chief Justice.
Note
Notaries certify as to the legal effect of documents for international purposes,
frequently for use in foreign courts. The essential function of notarial acts is to
provide an international guarantee of the authenticity and legality of those documents.
Typical services a notary would perform today include attesting declarations or
affidavits, attesting execution of documents and preparation of ships' protests. In many
countries, properly executed notarial acts are accepted as conclusive evidence of the
facts witnessed. With the continuing emphasis on international trade, it is expected that
the role of notaries in a commercial context will grow in importance for Victoria.
In an archaic system that dates back to the 1530s when King Henry VIII broke away from
Rome, Victorian notaries are still appointed by the Archbishop of Canterbury in England.
There is no governing legislation in Victoria.
A current criterion for appointment is also contrary to National Competition Policy
guidelines, in that it requires an applicant to demonstrate a geographic need for notarial
services.
In 1996 the Scrutiny of Acts and Regulations Committee (SARC) was asked to review the
role and appointment of public notaries. SARC's report recommended the enactment of
Victorian legislation dealing with the appointment of notaries.
In summary the Committee’s 1966 report recommended that –
- only qualified lawyers should be eligible for appointment as notaries;
- applicants should have at least 5 years legal experience;
- the numbers of notaries should not be limited by reference to geography or population;
- appointments should be made by the Supreme Court; and
- applicants should be required to undergo an approved course of training.
|
Content and Committee comment
[Clauses]
[2]. The Act will come into operation by proclamation but not later
than 31 July 2002.
[4]. Sets out the criteria for appointment as a public notary. A person
must be a legal practitioner of at least 5 years standing as a principal and have
completed to the satisfaction of the Board of Examiners constituted under the Legal
Practice Act 1996 a prescribed course of study approved by the Council of Legal
Education constituted under that Act.
[5]. The Board of Examiners may, in a particular case, dispense with or
vary the requirement that an applicant have held for 5 years a practising certificate
entitling them to practise as a principal. The dispensation or variation can be made
subject to conditions.
[6]. A person who has obtained a certificate of eligibility from the
Board of Examiners may apply within 30 days to the Supreme Court constituted by the Chief
Justice for appointment as a public notary.
[7]. A person may appeal to the Supreme Court constituted by the Chief
Justice against a decision of the Board of Examiners in respect of an application for a
certificate of eligibility.
[9]. A person who is not named on the roll of public notaries and who
does not hold a current practising certificate entitling them to practise as a principal,
commits an offence if they hold themselves out as a public notary or if they practise as a
public notary.
[10]. Declares, for the avoidance of doubt, that a public notary is to
be recognised as having the same powers, authorities, duties and functions as a public
notary or notary public had prior to the commencement of the proposed Act.
[11]. Provides for a standard regulation making power in relation to
matters arising under the proposed Act.
| The Committee accepts that the regulation making powers are appropriate to give
effect to the purposes of the Act. |
[12]. Deems a person who was a validly appointed, practising notary
immediately prior to the commencement date, to be a public notary appointed under the
proposed Act. That deeming lasts for 6 months or until the person signs the roll of public
notaries within that 6 month period. Such a person will be entitled to sign the roll
within 6 months after commencement of the proposed Act without having to make an
application under the proposed Act.
[13]. Makes a number of consequential amendments to the Legal
Practice Act 1996. The Board will be required to note on the
register each legal practitioner who is a public notary and the date of their appointment.
Members of the public can search the register to determine if a person is eligible to
practise as a public notary. In addition, the Council of Legal Education will be given the
power to make rules in relation to approving courses of study required for appointment as
a public notary. [13(2) and (3)]. Contains consequential amendments to the Evidence
Act 1958 and the Instruments Act 1958 that change references to
‘notary public’ to ‘public notary’.
The Committee makes no further comment.
National Parks (Marine National Parks and Marine Sanctuaries) Bill
Introduced: 16 May 2001
Second Reading Speech: 17 May 2001
House: Legislative Assembly
Minister introducing Bill: Hon. S. Garbutt MLA
Portfolio responsibility: Minister for Environment and Conservation.
Purpose
The Bill amends the National Parks Act
1975 (the Act) and other Acts to establish marine national parks and marine
sanctuaries covering some 52,500 hectares of Victoria’s marine waters.
| The Committee received a late submission on behalf of the Victorian Abalone
Divers Association Inc. and will defer consideration of this Bill until Monday 4 June
2001. |
The Committee makes no further comment.
Racial and Religious Tolerance Bill
Introduced: 16 May 2001
Second Reading Speech: 17 May 2001
House: Legislative Assembly
Minister introducing Bill: Hon. S. Bracks MLA
Portfolio responsibility: Premier
Purpose
The Bill –
prohibits vilification of people on the grounds of race or religion,
subject to specified exceptions;
provides a means of civil redress for victims of racial or religious
vilification under the existing mechanism for conciliation of complaints under the Equal
Opportunity Act 1995;
exempts from liability conduct engaged in reasonably and in good
faith for the purposes of discussion or debate of any matter in the public interest or for
a genuine academic, artistic, religious or scientific purpose;
provides a criminal offence for the incitement of racial hatred;
prohibits victimisation of a person who makes a complaint of racial
or religious vilification or takes required action in connection with any proceedings
before a court or tribunal under this Bill;
makes consequential amendments to the Equal Opportunity Act
1995.
Content and Committee comment
[Clauses]
[2]. The Act will commence operation on proclamation but not later
than 1 January 2002.
[3]. Provides for various definitions including for
"detriment", "race" and ‘religious belief and activity’.
‘Race’, includes – colour, descent or
ancestry, nationality or national origin, ethnicity or ethnic origin, if 2 or more races
are collectively referred to as a race – each of those distinct races, that
collective race.
‘Religious belief or activity’, means
– holding or not holding a lawful religious belief or view, engaging in, not
engaging in or refusing to engage in a lawful religious activity.
Note
The Committee notes that in determining what criteria may
constitute a ‘religion’ for the purposes of the law, assistance may be gained
from the High Court’s decision in The Church of New Faith v. The Commissioner of
Pay-Roll Tax (Victoria) (1982) 154 CLR 120.
"For the purposes of the law, the criteria of religion are
twofold: first, belief in a supernatural Being, Thing or Principle; and second, the
acceptance of cannons of conduct which in order to give effect to that belief, though
canons of conduct that offend against ordinary laws are outside the area of any immunity,
privilege or right conferred on the grounds of religion. (Headnote)"
"No single characteristic can be laid down as constituting a
formularized criterion of whether a particular system of ideas and practices constitutes a
religion, but the following criteria are helpful: that the particular collection of ideas
and/or practices involve belief in the supernatural, i.e. a belief that reality extends
beyond that which is capable of perception by the senses; that the ideas relate to
man’s nature and place in the universe and his relation to things supernatural; that
the ideas are accepted by adherents as requiring or encouraging them to observe particular
standards or codes of conduct or to participate in specific practices having supernatural
significance; that however loosely knit and varying in beliefs and practices adherents may
be, they constitute an identifiable group or groups; and that the adherents themselves see
the collection of ideas and/or practices as constituting a religion." (pages 173-174)
"religious belief is satisfied by belief in supernatural Things or
Principles and not to be limited to belief in God or in a supernatural Being otherwise
described" (p.140)
"Charlatanism is a necessary price of religious freedom, and if a
self-proclaimed teacher persuades others to believe in a religion which he propounds, lack
of sincerity or intergrity on his part is not incompatible with the religious character of
the beliefs, practices and observances accepted by his followers." (p. 141). |
| The Committee notes the test for ‘religion’ enunciated in The Church
of New Faith case is very broad however the qualification "lawful’ in the
Victorian Bill may place a limitation to this broad definition and may exclude extreme
forms of religion. |
[4]. States the objects of the Act –
(a) to promote the full and equal participation of every person in a
society that values freedom of expression and is an open and multicultural democracy;
(b) to maintain the right of all Victorians to engage in robust
discussion of any matter of public interest or to engage in, or comment on, any form of
artistic expression, discussion of religious issues or academic debate where such
discussion, expression, debate or comment does not vilify or marginalise any person or
class of persons;
(c) to promote conciliation and resolve tensions between persons who
(as a result of their ignorance of the attributes of others and the effect that their
conduct may have on others) vilify others on the ground of race or religious belief or
activity and those who are vilified.
(2) It is the intention of the Parliament that the provisions of this
Act are interpreted so as to further the objects set out in sub-section (1).
[5]. Specifies that a contravention of this Act does not create any
separate civil or criminal liability, except as created by the Act.
[6]. Provides for the Act to bind the Crown.
Unlawful Racial and Religious Vilification – Civil Remedies
[7 and 8]. Conduct that incites* hatred against*, serious contempt
for*, revulsion or severe ridicule of* a person or class of persons on the ground of the
race or religious belief or activity of that person or class of persons is prohibited.
This conduct may be constituted by a single act or a series of acts over time and may
include communications using the Internet.
The conduct may occur in or outside Victoria, e.g. a message may be
sent from outside Victoria to vilify a person or group living in Victoria.
When such conduct occurs, the person or group vilified can seek civil
redress by making a complaint under this Act.
Note
Some guide on the interpretation of the terms (*) that may
constitute liability under these sections may be gained from decisions of the NSW
Anti-Discrimination Tribunal in Kazak v. Faifax Publications Limited [2000] NSWADT
77 and Western Aboriginal Legal Services [2000] NSWADT 102.
The civil remedies in the Bill require that a person will need to
establish on the balance of probabilities, that by a public act on the grounds of race or
religion, the defendant incited hatred against, serious contempt for, or revulsion or
severe ridicule of, that person or class of persons in our outside Victoria. The defendant
may counter a prima facie case by establishing a defence under clause 11 that the
defendants conduct was reasonable and done in good faith according to one of the
exceptions [11 (a), (b) or (c)]. |
[9]. States that in determining whether a person has
contravened [7 or 8], the motive for the conduct is irrelevant. It is also irrelevant
whether the race or religious belief or activity of the vilified person or group was the
only or dominant ground for the conduct.
[10]. For the purposes of [7 and 8] it is irrelevant whether or not the
person made an assumption about the race or religious belief or activity of another person
or class of persons that was incorrect at the time that the contravention is alleged to
have taken place.
Exceptions – Public Conduct – Onus of Proof with Defendant
[11]. Provides an exception in relation to certain kinds of
conduct. Conduct is excepted from civil liability if the person establishes that the
conduct was engaged in reasonably and in good faith in the course of
an artistic performance, in the course of a discussion or statement of a matter in the
public interest or for a genuine academic, artistic, religious or scientific purpose. The
exception is available to any person who engages in discussion or debate for one of these
purposes. The provision is not confined to discussion by artists, academics, scientists or
reporting by the media. The onus lies on the person who claims an exception to prove that
the exception applies.
Note
This provision requires, an objective review, that the conduct
must have been engaged in "reasonably and in good faith". The exception
will not apply to conduct or statements which are immoderate or inflammatory. For example,
the exception will not protect academic debate which, when objectively considered, appears
designed to be inflammatory or offensive to an ethnic or religious group.
The provision also requires that a statement genuinely made for an
academic, artistic, religious or scientific purpose must, when objectively considered, be
made for the true purpose of that discussion. The exception will not apply to conduct
disguised as discussion for one of these purposes if it is not engaged in reasonably and
in good faith. For example, a member of a religious body cannot use the exception for
religious discussion to racially vilify an ethnic group. |
[12]. Provides an exception for private conduct. Conduct
or a conversation occurring in circumstances in which the parties can be taken to have
intended it to be seen or heard only by themselves, and no-one else, will escape
liability. The intention of the parties is determined objectively, taking into
consideration of all the circumstances in which the conduct or conversation took place. As
in [11] the onus lies on the person who claims the exception to prove that the exception
applies.
The Committee notes the reverse onus of proof defences in
clauses 11 and 12 and accepts that knowledge for grounds of justification rests
exclusively with the defendant.
The Committee notes the question of implied constitutional rights to
communications as an endnote to the report on this Bill.
The Bill deals with rights and obligations with respect to speech and
public discourse, altering some existing rights and seeking to create others. The
Committee believes this is a matter for the consideration of Parliament. |
[See ‘Endnote’ for notes concerning the implied
constitutional right to communication]
Victimisation – Prohibited
[14]. Defines victimisation as subjecting a person to detriment
(which includes humiliation and denigration) or threatening to do so because that person
has lodged a complaint or has taken any necessary step to pursue a complaint under the
Act.
Aiding and Abetting Vilification or Victimisation
[15 and 16]. Prohibits the encouragement, authorisation or
assistance of a person to contravene the prohibitions on vilification and victimisation.
If a person encourages, authorises or assisted another person to contravene the
prohibitions on vilification and victimisation that person will also be taken to have
contravened those prohibitions.
Vicarious Liability for Vilification or Victimisation
[17]. Provides that an employer or principal will be vicariously
liable for the conduct of an employee or agent which contravenes a prohibition on
vilification and victimisation.
Defence to Vicarious Liability
[18]. Provides that an employer or principal will not be
vicariously liable for contravention of the prohibitions on vilification and victimisation
by an employee or agent if the employer or principal proves that he or she took reasonable
precautions to prevent the contraventions.
The Committee notes that the provisions impose liability on
an employer or principal for acts by their employees and or agents.
The Committee accepts that vicarious liability places a heavy but
reasonable burden on employers and principals and in this respect the Committee notes the
provision of a defence, on the balance of probabilities, that the employer or principal
took reasonable precautions to prevent the employee or agent contravening the Act. |
[19]. Sets out who may complain concerning a civil contravention [7 and
8] to the Equal Opportunity Commission (the Commission). Any person may lodge a complaint
concerning conduct in relation to another person. Children or people with an impairment
can have another person make the complaint on their behalf. A person can also authorise
another person who was subject to the same conduct which contravened the Act to lodge a
complaint on their behalf. Representative bodies can bring complaints on behalf of a
person if they are authorised by that person and have an interest in the subject matter of
the complaint.
[22]. A complaint may be made against an unincorporated association in
the name of its president, secretary or other similar officer.
[23]. Applies Divisions 2 to 7 of Part 7 (sections 107 to 136) of the Equal
Opportunity Act 1995 to ensure that the mechanisms for the conciliation and
determination of complaints under that Act apply to a complaint under this Act.
Note
Important provisions of the Equal Opportunity Act 1995
that are incorporated by [23] are –
that the Commission may decline to hear complaints that are stale,
frivolous, vexatious, misconceived or lacking in substance (s.108, 110).
The respondent may request the Commission to strike out the complaint
(s.109).
On a matter of public importance the Minister may refer a complaint
directly to the Victorian Civil and Administrative Tribunal (VCAT) whether the Commission
has considered the complaint and whether or not the complaint is in the process of
conciliation (s.111).
The Commission may conciliate a complaint and a conciliation
agreement may be reached (s.112 to 118).
A complainant may seek an expedited determination of a complaint
(s.119 to 123).
A party may seek to refer a complaint to VCAT directly without
conciliation (s.124).
Division 5 deals with ‘Special complaints’ defined as
complaints made by the Minister to the Tribunal or complaints having significant social,
economic or financial effects on the community or a section of the Community. Complaints
that involve issues of complexity and the resolution of which may set important precedents
in the interpretation of the Act. Whether a compliant is ‘Special’ is to be
determined by the President of VCAT (s.125 and 126).
VCAT may make interim orders pending conciliation and or hearing and
determination by VCAT (s.131).
Orders VCAT may make –
The complaint be dismissed; the complaint proven and take no other
action; that a person refrain from committing any further contravention of the Act; order
the respondent to pay compensation for loss, damage or injury suffered as a consequence of
the contravention; order the respondent to do anything in an order to redress any loss or
damage suffered as a result of the contravention (s.136). |
Serious Vilification Offences – Criminal
Sanctions – [24 to 28]
[24 and 25]. Offences of serious racial or religious vilification
respectively.
(1) A person (the offender) must not, on the ground of the race or
religious belief or activity of another person or class of persons, intentionally
engage in conduct that the offender knows is likely –
(a) to incite hatred against that other person or class of persons;
and
(b) to threaten, or incite others to threaten, physical harm towards
that other person or class of persons or the property of that other person or class of
persons.
Penalty: In the case of a body corporate, 300 penalty units ($30,000);
In any other case, imprisonment for 6 months or 60 penalty units ($6,000) or both.
(2) A person (the offender) must not, on the ground of the race or
religious belief or activity of another person or class of persons, intentionally engage
in conduct that the offender knows is likely to incite serious contempt for, or revulsion
or severe ridicule of, that other person or class of persons.
Penalty: In the case of a body corporate, 300 penalty units; In any
other case, imprisonment for 6 months or 60 penalty units or both.
(3) For the purposes of sub-sections (1) and (2), conduct--
(a) may be constituted by a single occasion or by a number of occasions
over a period of time; and (b) may occur in or outside Victoria.
The sections create the offences of serious racial and religious
vilification respectively. They define the offences as involving conduct that incites
hatred against a person or group on the ground of the person's or group's race or
religious belief or activity and threatens (or incites others to threaten)
physical harm to the person or group or their property. The prescribed maximum
penalty for both the offences is 60 penalty units or 6 months imprisonment or both (300
penalty units in the case of a body corporate).
In addition, conduct that incites feelings of serious contempt for, or
revulsion or severe ridicule of, a person or group on the ground of the race of that
person or group, is an offence. The prescribed maximum penalty is 60 penalty units or 6
months imprisonment or both (300 penalty units in the case of a body corporate).
The offender must intend the conduct in the knowledge that the
promotion of these feelings of extreme dislike will be the likely result of the conduct.
This conduct may include communications using the Internet.
[26]. Provides that an incorrect assumption made by a person engaging
in vilifying conduct concerning the race or religious beliefs or activities of another
person or class of persons is irrelevant in determining whether the person committed an
offence against clause 24 or 25.
[27]. Deals with the liability of corporate bodies for an offence under
[24 or 25]. Each officer of the corporation who directed or permitted the commission of
the offence by the corporation is also guilty of an offence. A body corporate is taken to
have engaged in the conduct constituting the offence and to have had the intention to
commit the offence if the conduct was performed by one of its senior officers who had the
requisite intention. This presumption will not apply if the body corporate establishes
that it took reasonable precautions to avoid that conduct.
Issue of Search Warrants by Magistrates
[28]. Provides that s.465 of the Crimes Act 1958
applies to the offences in [24 and 25] as if they were indictable offences. This ensures
that the power to obtain a search warrant in respect of an indictable offence extends to
these offences.
Mens rea – The mental intent in criminal charges
| In respect to the criminal offences of serious vilification the
Committee notes the elements of the respective offences are only made out if the
prosecution proves beyond reasonable doubt that the offender intentionally engaged in the
conduct and that the offender knew it was likely to achieve the prohibited consequences.
The Committee notes that ‘engage in conduct’ includes use of the Internet or
e-mail to publish or transmit statements or material. |
[30]. Amends the Equal Opportunity Act 1995 to ensure
that the investigatory powers under that Act can be used by the Commission to investigate
a contravention of the civil offences in clauses [7 and 8].
[31]. Provides that the education programs undertaken by the Equal
Opportunity Commission include the elimination of racial and religious vilification.
Endnote
Does the Bill unreasonably or unduly abridge or limit freedom of speech
or other communication?
Does the Bill infringe the implied constitutional protection of freedom
of communication?
Notes
In Lange v. Australian Broadcasting Corporation (1997) 189
CLR 521 the High Court (the Court) considered the implied constitutional freedom of
communication. In that case the Court held the Commonwealth Constitution protects freedom
of communication between people concerning political or government matters which enables
the people to exercise a free and informed choice as electors. However the Court also
stated that the freedom is not absolute and may be limited. The Court enunciated tests to
determine whether a law limiting or curtailing the implied freedom of communication will
be valid or not.
The Committee also notes the relevant High Court judgments in
Theophanous v. Herald & Weekly Times Ltd (1994) 182 CLR 104 and in Stephens v. West
Australian Newspapers Ltd (1994) 182 CLR 211.
Chapter 1 of the Commonwealth Constitution establishes a representative
elected form of government. Although in different terms a representative bicameral
legislature is established in Victoria by Part II of the Constitution Act 1975.
Of particular interest concerning the implied freedom of communication
in respect to the States is a passage in the High Court judgment in Stephens v. West
Australian Newspapers Ltd (1994) 182 CLR 211 –
"And so long, at least, as the Western Australian Constitution
continues to provide for a representative democracy in which the members of the
legislature are ‘directly chosen by the people’ a freedom of communication must
necessarily be implied in that Constitution, just as it is implied in the Commonwealth
Constitution, in order to protect the efficacious working of representative democracy and
government"
The Committee notes the following extracts from the headnote of the
reporting of Lange’s case in the Australian Law Journal Reports.
The General Principle –
"Freedom of communication on matters of government and politics is
an indispensable incident of that system of representative government which the
Constitution (ss 7, 24) creates by directing that members of the House of Representatives
and of the Senate shall be "directly chosen by the people" of the Commonwealth
and States respectively. Communications concerning political or government matters between
the electors and the elected representatives, between the electors and the candidates for
election, and between the electors themselves, were central to the system of
representative government, as it was understood at Federation. Accordingly, ss 7, 24 and
related sections, necessarily protect that freedom of communication which enables the
people to exercise a free and informed choice as electors. Those sections do not confer
personal rights on individuals: they preclude the curtailment of the protected freedom by
the exercise of legislative or executive power. Other sections of the Constitution make it
impossible to confine the receipt and dissemination concerning government and political
matters to an election period"
There may be legitimate and reasonable limitations of the freedom –
"The freedom of communication which the Constitution protects is
not absolute. It is limited to what is necessary for the effective operation of that
system of representative and responsible government provided for by the Constitution"
The tests and principles to be considered when limiting the freedom
–
"(a) The freedom will not invalidate a law enacted to satisfy some
other legitimate end if the law satisfies two conditions, namely – (i) the object of
the law is compatible with the maintenance of the constitutionally prescribed system of
representative and responsible government…; and (ii) the law is reasonably
appropriate and adapted to achieving that legitimate object or end "
"(b) The test for determining whether a law infringes the
constitutional implication of freedom of communication requires two questions to be
answered, namely: (i) does the law effectively burden freedom of communication about
government or political matters either in its terms, operation and effect? and, (ii) if
the law effectively burdens that freedom, is the law reasonably appropriate and adapted to
serve a legitimate end the fulfilment of which is compatible with the maintenance of the
constitutionally prescribed system of representative and responsible government and the
procedure prescribed by s 128 of the Constitution for submitting a proposed amendment of
the Constitution to the decision of the people? If the first question is answered
"yes", and the second "no", the law is invalid "
"Some judges have expressed the test as whether the law is
reasonably appropriate and adapted to the fulfilment of a legitimate purpose. Others have
favoured different expressions, including proportionality"
The Committee makes no further comment.
State Taxation Acts (Taxation Reform Implementation) Bill
Introduced: 16 May 2001
Second Reading Speech: 17 May 2001
House: Legislative Assembly
Minister introducing Bill: Hon. J. Brumby MLA
Portfolio responsibility: Treasurer
Purpose
The Bill –
makes amendments to the Pay-roll Tax Act 1971 by
lowering the current pay-roll tax rate, raising the threshold and including in the base
pre-January 1996 accrued leave, eligible termination payments, and the grossed-up value of
fringe benefit payments, and to make other changes;
abolishes stamp duty on leases from 26 April 2001;
replaces the gaming machine levy under the Casino Control Act
1991 and Gaming Machine Control Act 1991 with a health benefit levy;
increases the land tax threshold of the Land Tax Act 1958;
amends the Duties Act 2000 for the prospective
abolition of duty on unquoted marketable securities and mortgage duty.
Content and Committee comment
[Clauses]
[2]. Parts 1 (preliminary) and 4 (land tax) of the Bill come into
operation on Royal Assent. Part 6 of the Bill (abolition of lease duty) is deemed to have
come into operation on 26 April 2001. Parts 2 (health benefit levy), 3 (other than clause
6(4)) (duties amendments) and 5 (pay-roll tax amendments) of the Bill come into operation
on 1 July 2001. Clause 6(4) of the Bill (marketable securities duty) comes into operation
on 1 July 2003.
Part 2
Contains provisions making amendments to the Casino
Control Act 1991 and the Gaming Machine Control Act 1991. The gaming
machine levy has been renamed as the health benefit levy and the existing levy
imposed on each gaming machine has been increased from $333.33 to $1,533.33 per annum.
Additional revenue realised from this increased levy will be hypothecated for the purpose
of funding the public health sector.
Part 3
Includes amendments to the Duties Act 2000.
The Part repeals the lease duty provisions of the Duties Act 2000 (which are
due to commence on 1 July 2001) because of the abolition of lease duty from 26 April 2001
(see Part 6 of the Bill). It also provides for the progressive abolition over the next 3
years of duty on unquoted marketable securities and on mortgages. Further, the new
provisions ensure that a taxpayer has a right to a refund of duty paid under the Stamps
Act 1958 in respect of the unused portion of a surrendered or forfeited lease. This right
is limited to 3 years from the date of the surrender.
For the purposes of protecting revenue against the opportunistic
surrender and forfeiture of leases by taxpayers, the new provisions also provide that
refunds in respect of the unused portion of a lease cannot be granted where the lessee or
an associate of the lessee continues to lease the same or substantially the same premises.
Moreover, to limit the possibility of false claims, an application for refund must be
accompanied by a declaration and the applicable lease or agreement for a lease on which
duty was paid, with an appropriate penalty for a false declaration.
Part 4
Introduces amendments to the Land Tax Act 1958
to provide for an increase to the current land tax-free threshold effective from the 2002
calendar year. It raises the current land tax threshold of $85,000, providing that no land
tax is payable by the owner of land if the total unimproved value of land is less than
$125,000.
Part 5
Contains amendments to the Pay-roll Tax Act
1971. The amendments provide for two reductions in pay-roll tax rates: the first
from 1 July 2001 and the second from 1 July 2003, and increase the current pay-roll tax
threshold from 1 July 2003. Proposed new section 7(1)(i) reduces the current rate of
5·75% to 5·45% for wages paid or payable by employers after 30 June 2001 and before 1
July 2003. Proposed new section 7(1)(j) reduces this rate to 5·35% from 1 July 2003. The
tax-free threshold will be increased from $515,000 to $550,000 from 1 July 2003.
Part 6
Amends certain provisions of the Stamps Act
1958 so that stamp duty on leases is abolished from 26 April 2001. Further, the
amendments also ensure that taxpayers terminating their leases for genuine purposes are
not disadvantaged by providing them with a right to a refund of stamp duty paid in respect
of the unused portion of a surrendered or forfeited lease during the period 26 April 2001
to 30 June 2001. This right to a refund is preserved for 3 years from the date of the
surrender, and as provided by the amendments contained in the Bill to the Duties Act
2000. Refunds in respect of the unused portion of a lease cannot be granted where
the lessee or an associate of the lessee continues to lease the same or substantially the
same premises. The amendments also dissuade taxpayers from making false claims when
applying for a refund, as penalties may be imposed in such instances.
| The Committee notes the retrospective application of Part 6 to 26 April 2001 and
that the provisions are beneficial in nature. |
The Committee makes no further comment.
|
