Amends the House Contracts Guarantee Act 1987 (the Act) to establish an indemnity scheme in respect of certain classes of domestic building work affected by the collapse of the HIH Insurance Group. Further the Bill amends the Building Act 1993, the Domestic Building Contracts Act 1995 and the Sale of Land Act 1962.

The Housing Guarantee Fund Limited ("HGFL"), a company will administer the scheme through the establishment of the Domestic Building (HIH) Indemnity Fund ("the Fund"). There will an additional levy (the levy) on domestic building permits to meet part of the claims and other costs of the scheme. HGFL will be able to recommend disciplinary action against domestic builders.

[4]. Amends section 4 of the Act to make it clear that the indemnity scheme applies to domestic building work and contracts carried out on or after 1 May 1996. The rest of the Act applies to the old house contracts guarantee scheme.

[6]. Provides that the winding-up of HGFL, which is currently proposed as soon as all claims under the existing guarantee scheme managed by HGFL are completed, is delayed until after all claims under the new indemnity scheme established under this Bill are also completed.

[7]. Repeals sections 35 to 38. The provisions are spent and do not relate to the operations of the indemnity scheme.

[8]. Inserts a new Part 6 in the Act. This new Part establishes the indemnity scheme aimed at protecting house owners affected by the collapse of HIH.

35. Restricts the application of the scheme to houses located in Victoria;

37. The State must indemnify a house owner against loss arising from an event that would otherwise have been covered by a builders' warranty insurance policy issued by HIH, that is, by an insurance company to which the scheme applies;

38. Claims that have previously been completed, either by being paid or by being rejected through due process, cannot be revived as new claims under the scheme; the scheme does not apply if another contract of insurance exists under which a successful claim may be made.

39. HGFL will administer the scheme and the Fund on behalf of the State; HGFL is acting as an agent of the State in implementing this indemnity scheme, and that no claims can be made on or payments made from HGFL's own assets.

43. A successful claimant must assign to the State their rights to recover from other persons in respect of that claim and requires the liquidator of HIH to disregard the amount paid on a claim under the new Part 6 in assessing a claim under an HIH policy.

44. HGFL may require builders to undertake rectification or completion of building work, or to make payments into the Fund, and to recover from builders amounts paid to home owners under the indemnity.

46. Establishes the Fund and specifies the receipts and payments that must be made into and out of the Fund.

48. Allows for the balances of the Fund to be invested as authorised by the Treasurer.

49. The balance of the Fund is to be paid to the Consolidated Fund on the winding up of HGFL.

50. Requires the financial statements of the Fund, and the general operations of the scheme by HGFL, to be reported to the Minister for Consumer Affairs, and to be included in HGFL's annual report.

51. Requires the Fund to be audited by the Auditor-General.

53. HGFL, as agent of the State and with the approval of the Minister for Consumer Affairs, may enter into settlement arrangements with the liquidator of HIH or other persons.

55. It is an offence to the make false statements in relation to claims;

56. Provides a general Regulation making power in respect of the operation of the scheme.

[11]. Amends sections 174A and 179 of the Building Act 1993 to empower HGFL to recommend the taking of action regarding the registration of builders who fail to carry out a direction of HGFL with respect to completion or rectification work or a payment into the Fund under Part 6 [8 above] of the Act.

[12]. Requires the additional levy imposed under [13] to be paid into a separate account on collection by the Building Control Commission, with the balances to be paid into the Fund within seven days after the end of each month.

[13]. Inserts new sections 201(1A) and 201(1B) in the Building Act 1993, providing for an additional building permit levy of ·032 cents in the dollar ($32 in each $100,000) to be imposed in respect of domestic building work costing more than $10,000. It also inserts a new section 201(1) to make it clear that the additional levy only applies to new applications for building permits.

[14]. Provides for the sun-setting of the levy in [13] above. The repeal of the levy becomes operational on proclamation but not later than 30 June 2010.

[15]. Is a savings provision providing that that any additional levy amounts that had already been charged before [14] comes into effect remain collectable and will be handled in the same way as amounts collected before the levy was abolished.

[16]. Amends various section in the Domestic Building Contracts Act 1995 that ensure that disputes in relation to claims against HGFL under the indemnity are handled in the same way as disputes in relation to claims against insurance companies in respect of the rights and obligations on all parties to the dispute and the role of VCAT and the Courts.

The Committee makes no further comment.

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 notes the submissions made to it by the Victorian Abalone Divers Association Inc. The Committee notes the following major points.

1. A licence under the Fisheries Act gives the licence holder a bundle of proprietary rights and entitlements. The fact that a licence is statutory and the statute can be amended does not automatically make a statutory licence non- proprietary.

2. The Common law rule that a statute will not be construed to take away the property of the subject without providing a legal right to compensation. Such an intention is not to be imputed to the legislature unless that intention is expressed in unequivocal terms.

3. Proposed new section 48B(1) is so wide as to catch all claims for compensation for lose of a proprietary right. As such the clause may be in conflict with other compensation measures such as under section 63 of the Fisheries Act 1995.

[3]. Amends the definition of "park" so that it includes marine national parks and marine sanctuaries.

[4]. Amends section 4(a) by applying the objects of the Act for national and State parks to marine national parks and marine sanctuaries.

[5]. Amends section 16A by substituting for "relevant land" the specific categories of land (including marine national parks and marine sanctuaries) for which the Secretary of the Department of Natural Resources and Environment (the Secretary) may enter into a management agreement with Parks Victoria under that section for the management of the whole or part of that land.

[6]. Inserts a new section 17D, which describes land that is a marine national park or a marine sanctuary for the purposes of the Act and specifies the management obligations of the Secretary with respect to those areas.

[9]. Amends section 38 by inserting two additional powers of direction that an authorised officer may use in a marine national park or marine sanctuary. These will enable an authorised officer to direct that illegal activity ceases or that any illegal matter or thing be removed.

[10]. Inserts section 38AA, which requires an authorised officer to produce evidence of identification if asked to do so before or at any time during the exercising of the new direction powers inserted by [9] above unless it is unreasonable in the circumstances.

[11]. Amends section 40 by inserting sub-section (1AAA) to provide that the Minister must not consent to the grant of a work authority under the Extractive Industries Development Act 1995 in respect of land in a marine national park or marine sanctuary and amends 40(2) to prohibit operations under the Petroleum Act 1998 in a marine national park or marine sanctuary except for petroleum exploration in specified circumstances.

[12]. Inserts sections 40A and 40B providing that in relation to a pipeline licence, it is a deemed condition of any lease, licence or permit under the Petroleum (Submerged Lands) Act 1982 that is wholly or partly over a marine national park or a marine sanctuary, that exploration for petroleum must not be carried out in a marine national park or a marine sanctuary except in specified circumstances.

[15]. Inserts two new sub-sections in section 45. New sub-section (7) makes it an offence for a person not to comply with a direction of an authorised officer given under section 38(2) (see[9] above) and new sub-section (8) provides that a person is not guilty of such an offence if the authorised officer failed to comply to produce identification in accordance with section 38AA. (see [10] above).

[16]. Creates offences in marine national parks and marine sanctuaries and related matters. New section 45A(1) prohibits the taking of or attempting to take fish or fishing bait for sale in a marine national park or a marine sanctuary.

Section 45C extends the liability for offences under sections 45A(1), (2), (3) and (4) so that the holders of particular categories of fishery licences are accountable for the activities carried out by any employee or boat operator while engaging in conduct on behalf of the licence holder. A licence holder has the defence of ‘reasonable precaution and due diligence’.

[18]. Amends the regulation making power in section 48 of the Act so that appropriate regulations can be made for marine national parks and marine sanctuaries. It also amends the general regulation-making power in section 48(a) of the Act so that it more comprehensively covers the matters or things which need to be preserved or protected in particular categories of parks, including marine national parks and marine sanctuaries.

[19]. Inserts, inter alia, new section 48A stating that the amendments made to the Act by the Bill are not intended to affect native title rights and interests other than where they are affected or they are authorised to be affected by or under the Native Title Act 1993 (Cth).

[25]. Amends section 10(b) of the Extractive Industries Development Act 1995 to include land that is in a marine national park or a marine sanctuary in the land over which the Minister responsible for that Act must not grant a permit to search for stone.

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.

44B. No Compensation payable

(1) No compensation is payable by the Crown to any person for any loss or damage as a result of –

(a) any alteration to the force or effect of or to any rights conferred or otherwise arising under –

(i) a licence, permit or other authority (however described); or

(ii) an Order in Council, order, notice, direction or plan (however described)--

Section 48C provides that it is the intention of section 48B(1) to alter or vary section 85 of the Constitution Act 1975 so that the Supreme Court is prevented from awarding compensation in relation to section 48B(1).

144A. No compensation payable

(1) No compensation is payable by the Crown to any person for any loss or damage as a result of –

(a) any alteration to the force or effect of or to any rights conferred or otherwise arising under –

(i) a licence, permit or other authority (however described); or

(ii) an Order in Council, order, notice, direction or plan (however described)--

under this Act or regulations made under this Act; or

(b) the creation of a marine national park or a marine sanctuary under the National Parks Act 1975 as amended by the National Parks (Marine National Parks and Marine Sanctuaries) Act 2001; or

(c) the existence of such a marine national park or marine sanctuary.

Section 144B provides that it is the intention of section 144A(1) to alter or vary section 85 of the Constitution Act 1975 so that the Supreme Court is prevented from awarding compensation in relation to section 144A(1).

Government assistance to the fishing industry

The government appreciates that, in establishing the marine national parks and sanctuaries in the long-term interests of this and future generations, there will be an impact, at least in the short term, on the fishing sector in particular, notably the abalone and rock lobster industries.

Consequently, the government has committed funds in this year's state budget to measures to assist the industry to adjust.

These measures are in addition to the benefits to commercial and recreational fishers from not proceeding with, or excluding certain areas from, particular parks and sanctuaries recommended by the ECC, and from delaying the cessation of fishing in particular parks and sanctuaries until 1 July 2003.

The assistance measures that will be funded include:

• appointing 21 new regional field-based fisheries officers to achieve an enhanced level of compliance, particularly in relation to abalone theft – an increased enforcement presence on the water will be crucial to protecting the new parks and sanctuaries from illegal activities as well as to reducing the amount of abalone theft statewide so that this resource can become available to legal commercial fishers, including those directly affected by the parks;

• appointing three strategically located regional investigations officers to plan coordinated major, intelligence-based, joint-agency enforcement operations;

• expanding the special investigations group to include additional intelligence analysis and investigators to concentrate on the illegal abalone industry;

• providing a permanent fisheries presence between Geelong and Warrnambool; and

• purchasing a new fisheries patrol vessel to provide additional at-sea compliance capacity on the Gippsland coast;

• providing the abalone industry with scientific and technical support to help identify and survey areas of currently under-utilised resource that can help to replace the existing fishing grounds within the parks and sanctuaries – this will involve working closely with individual licensees; and

• making ex gratia payments to those rock lobster and fin fish licensees who, as a result of a redirection of fishing effort away from the marine national parks and sanctuaries, are able to demonstrate a loss of income directly related to reduced catch -- this measure will operate over a transitionary period as new fishing areas are investigated, and will be complemented by the adjustment package accompanying the shift of the rock lobster industry to quota management.

Overall, in establishing a system of highly protected marine national parks and sanctuaries, the government has endeavoured to ensure that the impacts on the commercial and recreational fishing sectors and the associated local communities have been properly taken into account.

Clause 19

Clause 19 provides that it is the intention of section 48B(1) of the National Parks Act 1975 to alter or vary section 85 of the Constitution Act 1975 so that the Supreme Court is prevented from awarding compensation to any person for any loss or damage as a result of any alteration to the force or effect of or to any rights conferred or otherwise arising under a licence, permit or other authority (however described) or an order in council, order, notice, direction or plan (however described) under the Fisheries Act 1995 or regulations made under that Act, or as a result of the creation of a marine national park or a marine sanctuary under the National Parks Act 1975 as amended by the National Parks (Marine National Parks and Marine Sanctuaries) Act 2001, or as a result of the existence of such a marine national park or marine sanctuary.

The reason for the amendment is as follows. The government intends to legislate to establish marine national parks and marine sanctuaries in which fishing and various other activities will not be permitted in order to enhance significantly the state's parks and reserves system. It has considered the impacts of this proposal and has announced measures to assist those in various sectors of the fishing industry who may be affected by the new parks and sanctuaries. Taking into account the package of assistance measures, the government considers that it is not necessary for the State to be exposed to the possibility of paying additional funds in compensation.

Clause 26

Clause 26 provides that it is the intention of section 144A(1) of the Fisheries Act 1995 [the statement continued in form identical to clause 19 above].

Inserts schedules in the National Parks Act 1975 setting out the descriptions of twelve marine national parks, ten marine sanctuaries, six fisheries reserves established under the Fisheries Act 1995 that are to be revoked, the details of the wildlife reserve established under the Crown Land (Reserves) Act 1978 and classified as a nature conservation reserve under the Wildlife Act 1975 that is to be revoked.

The Committee makes no further comment.