Alert Digest No. 9 of
2001
Tuesday, 18 September 2001
Agricultural and
Veterinary Chemicals (Control of Use)(Further Amendment) Bill
Business Investigations (Repeal) Bill
Commonwealth Games Arrangements Bill
Commonwealth Powers (Industrial
Relations) (Amendment) Bill
Drugs,
Poisons and Controlled Substances (Amendment) Bill
Essential Services Commission Bill
Gene
Technology Bill
Ministerial Correspondence
National Parks (Marine National Parks and Marine Sanctuaries) Bill
Appendices
Index of Bills Reported 2001
Committee
Comments classified by Terms of Reference
Ministerial
Correspondence 2001
Agricultural and Veterinary Chemicals (Control of Use) (Further Amendment) Bill
Introduced: 22 August 2001
Second Reading Speech: 23 August 2001
House: Legislative Assembly
Minister introducing Bill: Hon. K. Hamilton MLA
Portfolio responsibility: Minister for Agriculture
The Bill amends the Agricultural and Veterinary Chemicals (Control of Use) Act 1992 (the Act) to provide for new and updated controls concerning dealings with agricultural produce, fertilisers and stock food.
The Committee notes the following comments from the Second Reading Speech –The Agricultural and Veterinary Chemicals (Control of Use) Act 1992 is the principal legislation for ensuring that the use of agricultural or veterinary chemical products does not lead to the contamination of agricultural produce and stock, or to financial losses resulting from damage to plants or stock. The Act also imposes controls over the use of agricultural and veterinary chemical products to protect the environment, public health, the safety of chemical users and the health and welfare of animals.
The main purposes of this Bill are to update the Agricultural and Veterinary Chemicals (Control of Use) Act 1992 to ensure that the Act can continue to effectively address chemical use practices which have the potential to lead to contaminated agricultural produce or stock, as well as continuing to protect the health of users of such chemical products, the public and the environment.
Content and Committee comment
[Clauses]
[2]. The provisions in the Bill come into operation on the day after Royal Assent.
[6]. Inserts a new section 4(4)(ga) permitting maximum limits to be declared by Order for substances that may be present in fertilisers or stock foods.
[9]. Inserts new section 19(5) providing an offence for the use of a prescribed chemical product contrary to a label statement. Inserts new section 19(7) to prohibit the sale of stock or agricultural produce obtained from stock that has entered land or grazed plants on land where an agricultural chemical product has been applied.
[10]. Prohibits a person who transports or handles agricultural produce (and is not the owner) from applying a chemical product to that produce without written permission from the owner of the produce.
[11]. Inserts new section 32 and prohibits the use of agricultural chemical products (those products intended for use on plants and crops) on animals; and prohibits the use of registered veterinary chemical products (those products intended for use on animals) from being used on crops, plants, buildings or things unless a permit is issued under Schedule 1 to the Act.
[13]. Inserts new section 41, creating an offence prohibiting agricultural spraying which contaminates stock, or is likely to contaminate agricultural produce derived from plants or stock, outside the target area. A defence to a prosecution is provided if the contaminated agricultural produce is not to be used as stock food, sold as, or manufactured into food or stock food.
The Committee notes the following comments from the Second Reading Speech –
The Bill strengthens controls which provide for acceptable standards in relation to agricultural spraying. This is aimed at avoiding adverse effects that may arise from off-target agricultural spraying. The Bill provides for the protection of primary producers from off-target spraying which results in the contamination of agricultural produce or stock. This provision is to ensure that primary producers who are targeting markets for clean and green agricultural produce both in Australia and overseas are not disadvantaged by poor practices in relation to agricultural spraying undertaken on adjoining properties.
[16]. Inserts new section 46A, allowing authorised officers under the Act to issue notices to operators of defective spraying equipment, which the operator must comply with. Currently authorised officers can only issue such notices to the owners.
[17]. Substitutes a new section 52, allowing authorised officers to issue notices to control any dealing in contaminated agricultural produce, fertiliser and stock food, if the authorised officer has reasonable grounds to believe there is contamination.
Regulations
A new section 52A allows regulations to be made to control the sale, handling, transport and identification of contaminated agricultural produce. Under the current Act, the control of contaminated produce occurs by the use of notices issued to individual producers or handlers. This new provision will allow for the general control of contaminated agricultural produce via regulations.
The Committee accepts that the regulation making powers are appropriate to give effect to the purposes of the Act. |
[18]. Amends section 53 to extend the powers of authorised officers for the purposes of regulations or Orders made under the Act. This section also now requires an authorised officer to produce an identity card before exercising a power under the Act. Currently the Act requires an authorised officer to produce identification if requested to do so.
[19]. Amends section 54 extending the powers of authorised officers to allow the making of photographs, audio or visual recordings to ascertain compliance with the Act, regulations or Orders; power to seize whole containers of chemical products, fertilisers or stock food if they pose an unacceptable risk to public health or safety; the power to take and remove for analysis agricultural spraying equipment.
Entry, Search and Seizure Powers
[20]. Inserts new sections 54A to 54I to provide authorised officers with powers of search and entry.
54A. Permits entry, search and seizure powers with the written consent of the occupier. The authorised officer must first produce an identity card and inform the occupier that he or she may refuse consent.
54B. Provides for the issue of search warrants in accordance with the procedures found in the Magistrates’ Court Act 1989.
54C. Requires an authorised officer to undertake certain actions, such as making an announcement prior to entry when executing a search warrant.
54D. Requires the authorised officer to provide specific information, such as a copy of the warrant and the officers identity card.
54E. An authorised officer may obtain a Court order from a Magistrate when the authorised officer has reasonable grounds for believing that a person has contravened the Act or regulations or Orders made under the Act. The Court order may require a person to answer questions or provide information or provide specified documents relating to the alleged offence.
54F. Requires an authorised officer who has seized a document to provide a copy of the seized document and (54G) requires the return of seized documents or things within 3 months of its seizure, unless the document or thing is subject to a court proceeding. 54H. Enables an authorised officer to apply to a Magistrate for a seized document or thing to be retained for an extended period.
54I. Provides a partial protection against self-incrimination in the following terms –
(1) It is a reasonable excuse for a natural person to refuse or fail to give information or do any other thing that the person is required to do by or under this Part, if the giving of the information or the doing of that other thing would tend to incriminate the person.
(2) Despite sub-section (1), it is not a reasonable excuse for a natural person to refuse or fail to produce a document that the person is required to produce by or under this Part, if the production of the document would tend to incriminate the person.
The Committee notes the privilege against self-incrimination does not extend to the production of documents. The Committee has commented upon such provisions previously and accepts that the limitation of the privilege may be justified in circumstances where prosecution of certain offences may be severely hampered if documentary evidence cannot be obtained notwithstanding their tendency to incriminate the person compelled to produce them. Whether the limitation of the privilege is justified in this legislation is a matter for the consideration of the Parliament. |
[21]. Inserts new section 56A, requiring commercial laboratories to notify the chief administrator when the testing of any prescribed agricultural produce reveals contamination.
[27]. Makes consequential amendments to section 33 of the Agricultural and Veterinary Chemicals (Victoria) Act 1994.
The Committee makes no further comment.
Business Investigations (Repeal) Bill
Introduced: 22 August 2001
Second Reading Speech: 23 August 2001
House: Legislative Assembly
Minister introducing Bill: Hon. R.Hulls MLA for Hon. M.Thomson MLC
Portfolio responsibility: Consumer Affairs
Purpose
The Bill repeals the Business Investigations Act 1958 (the Act).
The objects of the Act are achieved by more modern and specific legislation (including corporations and securities, trade practices and fair trading laws). The sale of interests in companies is regulated by the Corporations Act. The modern approach to dealing with problematic businesses is to seek an injunction under trade practices or fair trading legislation. The Act has not been used in over 20 years and is now redundant and thus appropriate for repeal.
Generally the Act prohibited persons hawking any interest in any business to members of the public and it prohibited the sale of any interest in any business if the objects of the business included the doing of acts in or outside Victoria that would have been illegal if carried on within Victoria. The Act permitted the appointment of inspectors to investigate the affairs of a business and for the Minister to direct how such a business should be dealt with.
Content and Committee comment
[2]. Provides that the Act comes into operation on the day after it receives Royal Assent.
[3]. Repeals the Business Investigations Act 1958.
The Committee makes no further comment.
Commonwealth Games Arrangements Bill
Introduced: 22 August 2001
Second Reading Speech: 23 August 2001
House: Legislative Assembly
Minister introducing Bill: Hon. S. Bracks MLA
Portfolio responsibility: Premier
Purpose
The main purpose of the Bill is to facilitate preparations for the Commonwealth Games to be held in Melbourne in 2006. The Bill also amends the Melbourne Cricket Ground Act 1933, the State Sport Centres Act 1994 and the Project Development and Construction Management Act 1994.
Public Submissions
The Committee notes that the Chair of the Committee and the Senior Legal Adviser meet with representatives of the Royal Park Protection Group, Save Albert Park, and the Parkville Association (the Associations) on 11 September to receive a verbal submission from the Associations relating to clauses in the Bill of concern to the Associations. The Chair of the Committee wrote to the Minister on 12 September 2001 and received a response on 17 September 2001.
The Committee also received a joint written submission from the Associations on 17 September 2001.
The Committee thanks the groups and associations for participating in the Committee’s review of this Bill. |
Content and Committee comment
[2]. The Bill comes into operation the day after Royal Assent.
[3]. Contains various definitions used in the Act. [3(2)] provides for the Minister to declare any facilities to be facilities required for the purposes of hosting the Commonwealth Games by publishing an Order in the Government Gazette.
[5]. Enables the establishment of one or more Commonwealth Games Advisory Committees by the Governor in Council on the recommendation of the Minister.
[6–12]. Provide for the functions of such committees, membership, terms of appointment, resignation and procedure at meetings, advisory committees and the disclosure of interests by members. An Advisory Committee must undertake public consultation if required by the Minister in relation to the development of facilities and preparations for the Commonwealth Games.
[14]. The Minister may declare an area of land to be a Commonwealth Games venue by Order published in the Government Gazette (a ‘venue Order’).
[15]. The Minister may declare a project to develop facilities at a Commonwealth Games venue or for the purposes of the Commonwealth Games to be a Commonwealth Games project by publishing the Order in the Government Gazette (a ‘project Order’).
[16]. The Minister may declare an area adjacent to a Commonwealth Games venue to be a designated access area for the purposes of the Act by Order published in the Government Gazette. [18]. The Minister must cause an Order made under [14-16] to be laid before each House of Parliament within 7 sitting days of that House following publication.
[20]. Provides that nothing in the Planning and Environment Act 1987 or in any planning scheme applies to the development or use of a Commonwealth Games venue or designated access area for the purposes of a Commonwealth Games project.
Parliamentary Committees Act 1968, s.4D(a)(i) – Undue trespass to rights and freedoms. Clauses 20, 21, 22, 23 and 59 The Committee notes the non-application of certain Acts referred to in clauses 20 to 24 and 59, to a Commonwealth Games venue, designated area or project. Without further material before it the Committee is unable to determine whether any person may be disadvantaged, either by way of abridgment of a private proprietary right such as the right of amenity, or a public interest right such as the right to protect heritage buildings and the possible removal of the need to prepare an environmental impact assessment or departmental advice. The Committee wrote to the Minister to seek further advice that may assist the Parliament in considering whether the clause constitute an undue trespass to rights and freedoms. The Minister responded in these terms –
The Committee thanks the Minister for his prompt response. The Committee accepts that the question whether these provisions constitute an undue trespass to rights and freedoms is a matter for the Parliament to consider. |
[21]. Provides that despite anything to the contrary in the Heritage Act 1995 a permit or consent is not required under that Act for the development or use of a Commonwealth Games venue or designated access area for the purposes of a Commonwealth Games project.
[22]. Provides that the Environmental Effects Act 1978 does not apply to any works carried out in a Commonwealth Games venue or designated access area for the purposes of a Commonwealth Games project.
[23]. Provides that despite anything to the contrary in the Coastal Management Act 1995 a consent is not required under that Act for the development or use of a Commonwealth Games venue or designated access area for the purposes of a Commonwealth Games project.
[25]. Enables the Minister administering the Building Act 1993 to declare that the Secretary or any other person or body specified by Order, is to carry out the administration and enforcement in relation to all or part of a Commonwealth Games project of any of the provisions of that Act and the regulations.
Delegations
[28]. Allows the Secretary to delegate any of the Secretary's powers other than the power of delegation to, (a) an employee or class of employees of the Department of State and Regional Development; (b) an employee or class of employees of the Department of Infrastructure; (c) a body corporate established under an Act for a public purpose.
The Committee notes the delegation power and considers the delegation is sufficiently defined for the purposes of the Act. |
[30]. Enables the Governor in Council by Order, to require a public body to surrender land vested in it to the Crown or divest land from the body for a Commonwealth project.
[31]. Interests and contractual rights in any Crown land may be required to be surrendered to the Crown or extinguished where it is part of a Commonwealth Games venue.
[32]. Empowers the Secretary to acquire an interest in land by agreement for the purposes of a Commonwealth Games project.
Compulsory acquisition of land
[33]. Enables the Secretary responsible for the Commonwealth Games project to acquire an interest in land by compulsory process. The Land Acquisition and Compensation Act 1986 will apply and land acquired compulsorily by the Secretary for a Commonwealth Games project is deemed to be unalienated land vested in the Crown under section 24 of that Act.
Compensation on surrender or divesting
[34]. Provides that, subject to the Bill and the Land Acquisition and Compensation Act 1986, every person, other than a public body, who immediately before the making of an Order under [30 or 31] had a legal or equitable estate or interest in the land or had a contractual right in relation to the land is able to claim compensation in relation to the land surrendered or interest or right extinguished under [30 or 31].
[36]. The Minister may enter into possession of surrendered land.
[40]. Declares that nothing in the Residential Tenancies Act 1997 applies to the Division [35 to 42].
The Committee notes that on the material currently before it the Committee is unable to determine whether any person may be adversely affected by the application of this provision. The Committee will seek further advice from the Minister. |
[44]. Permits the Secretary to sell unwanted land not required for a project or to grant other interests over such land.
[45]. Empowers the Minister to temporarily close roads where considered necessary for works on the road or neighbouring land to be carried out for the purposes of a Commonwealth Games project.
[47]. As soon as possible after the revocation of a temporary Commonwealth Games venue or access area Order, the responsible person must restore the temporary venue or access area to the required condition as before the making of the project or access Order as is to be jointly determined by the Ministers administering Part IX of the Land Act 1958 and the Crown Land (Reserves) Act 1978.
Authority to enter and offences
[49]. The Secretary may designate a restricted access area by marking off (a) any part of a Commonwealth Games venue; (b) a designated access area, and may [50] provide a written certificate of authorisation for a person to enter and remain in a restricted area to a Crown employee or any employee of a public authority; and any person who requires access to the area for the purposes of a Commonwealth Games project.
[51]. The Secretary may warn people to leave any part of a Commonwealth Games venue or a designated access area and for that purpose the Secretary is deemed to be the occupier of the land concerned in exercising the powers for the purposes of section 9(1) of the Summary Offences Act 1966 which provides that if a person wilfully trespasses in any public place or refuses to leave that place after being warned to do so by the occupier is guilty of an offence. Penalty 6 months imprisonment or 25 penalty units ($2,500).
[52]. It is an offence for a person to enter or remain in any part of a restricted access area unless that person –
(a) has a certificate of authorisation issued by the Secretary permitting access; or
(b) is a member of the police force or an employee of the public service or an officer or employee of a public body acting in the performance of their duties; or
(c) is the owner of the land or a person authorised in writing by the owner.
It is a defence to a charge under this section if a person had reasonable grounds for entering and remaining in the area.
[54]. It is an offence to intentionally hinder or interfere with the carrying out of works at a Commonwealth Games venue or in a designated access area for a Commonwealth Games project.
[56]. A member of the police force may remove a person and may use reasonable force to remove an offender from a Commonwealth Games venue or designated access area who is involved in an assembly that involves unlawful physical violence or damage to property without arresting them, due to the number of persons involved in the Assembly.
Parliamentary Committees Act 1968, s.4D(a)(i) – Undue trespass to rights and freedoms The Committee examined this provision and resolved to write to the Minister concerning doubts as to the exact nature of the powers intended to be conferred by the clause. The Committee seeks clarification as to whether the clause is intended to apply to persons who were themselves committed unlawful acts or whether it also is intended to apply to a person or persons present at an assembly where some other person or persons committed unlawful acts. The Committee wrote to the Minister on 12 September 2001 and received the following response on 17 September 2001 –
The Committee thanks the Minister for his prompt response. |
Regulations
[57]. The Governor in Council may make regulations for or with respect to any matters or thing that is required or permitted or prescribed for carrying out or giving effect to the Act.
The Committee notes the regulation making powers and accepts that they are appropriate to give effect to the purposes of the Act. |
[58]. The Act expires on 31 December 2006.
[59]. Inserts a new section 7DA in the Melbourne Cricket Ground Act 1933 to provide that nothing in the Planning and Environment Act 1987 or in any planning scheme applies to the development or use of a new Northern Stand on the Ground.
[61]. Melbourne Cricket Ground Act 1933 – Inserts a new Sixth Schedule to provide details of the additional land deemed to be MCG land for the purposes of that Act.
[62]. State Sport Centres Act 1994 - Substitutes a new definition in section 3 for ‘Melbourne Sports and Aquatic Centre land’ which means land delineated on the plan in Schedule 1 and land shown hatched in Schedule 2 [66].
[67]. Makes consequential amendments to the Project Development and Construction Management Act 1994.
The Committee makes no further comment.
Commonwealth Powers (Industrial Relations) (Amendment) Bill
Introduced: 22 August 2001
Second Reading Speech: 23 August 2001
House: Legislative Assembly
Minister introducing Bill: Hon. S. Bracks MLA
Portfolio responsibility: Premier
Purpose
The Bill amends the Commonwealth Powers (Industrial Relations) Act 1996 (the Act) to refer legislative powers to the Commonwealth Parliament for the making of or declaring any term of an award or order to be a common rule in the State for an industry, and certain matters in respect of outworkers.
Content and Committee comment
Commencement by proclamation
[2]. The provisions in the Bill come into operation on proclamation. A proclamation must include a statement that the Governor in Council is satisfied that a Bill has been introduced into the Senate or House of Representatives of the Parliament of the Commonwealth containing provisions about matters to be referred to that Parliament by the provision being proclaimed.
The Committee notes the commencement by proclamation provision. The Committee considers that the provision is appropriate in the circumstances of a referral of powers to the Commonwealth Parliament requiring certain legislative provisions to be enacted by that Parliament to give effect to the purposes of the Victorian legislation. |
[4] Defines ‘outworker’ to mean a person engaged for someone else's industry in or about a private residence or other premises to pack, process or work on articles or material. The clause provides that an outworker is to be an employee for the purposes of the Act.
[5]. Repeals section 5(1)(e) of the Act which excluded the making of common rules for an industry from the powers referred to the Commonwealth in 1996. The repeal is necessary for the reference of power to the Commonwealth under clause 6.
[6]. Provides for a further reference of legislative powers to the Commonwealth, being the matter of making an award or order as, or declaring any term of an award or order to be, a common rule in the State for an industry. The reference of power may be terminated by the Governor in Council, by proclamation published in the Government Gazette.
[7]. Provides for a further reference of legislative powers to the Parliament of the Commonwealth in respect of outworkers to permit the Commonwealth to make laws in respect to outworkers, but only if those laws treat outworkers as employees. This reference may be terminated by Governor in Council, by proclamation published in the Government Gazette.
The Committee makes no further comments.
Drugs, Poisons and Controlled Substances (Amendment) Bill
Introduced: 6 June 2001
Second Reading Speech: 16 August 2001
House: Legislative Assembly
Minister introducing Bill: Hon. R. Cameron MLA for Hon. R. Hulls MLA
Portfolio responsibility: Attorney-General
Purpose
The Bill amends the Drugs, Poisons and Controlled Substances Act 1981 (the Act) by providing for the restructuring of drug of dependence trafficking and cultivation offences. It does so by creating a new category of offence of ‘trafficking in a large commercial quantity’ and ‘cultivation of a narcotic plant in a large commercial quantity’. The penalties for these new offences are Level 1 (life) imprisonment. The Bill makes new provisions to enable the ‘large commercial quantity’, and the ‘commercial quantity’ threshold limits to be achieved by aggregating two or more drugs of dependence by using a simple addition of fractions. The Bill also makes consequential amendments to other related Acts.
Content and Committee comment
[Clauses]
[2]. The provisions in the Bill commence on proclamation but not later than 1 January 2002.
[4]. Inserts definitions for ‘aggregated commercial quantity’ and ‘aggregated large commercial quantity’ for the purposes of the restructured trafficking offences and a definition for ‘large commercial quantity’ for the purposes of the new level of trafficking in a large commercial quantity offence introduced by [5].
To determine whether the quantity of drugs when aggregated constitutes either a large commercial quantity or a commercial quantity, the definition enables quantities of drugs of dependence (that separately are less than the large commercial or commercial quantity) to be added together.
Note: Presently where a person trafficks in more than one drug each less than the commercial quantity they will be convicted of one trafficking offence for each drug. Where the aggregated threshold for commercial trafficking is reached the amendments made to the Act will allow for conviction of one offence at the more serious levels of trafficking in either a large commercial quantity or a commercial quantity as the case may be.
[5]. Restructures trafficking in a drug or drugs of dependence offences.
New sections 71, 71AA, 71AB and 71AC.
Trafficking in a large commercial quantity (New Offence)
71. It is an offence to traffick in a large commercial quantity of a drug or 2 or more drugs of dependence. The amount required to constitute a ‘large commercial quantity’ of a drug or drugs of dependence is defined in clause 4 of the Bill, which refers to the tables in Schedule 11 of the Act. Penalty – Life imprisonment and or a fine of 5000 penalty units ($500,000).
Notes A unanimous jury verdict is required for a conviction on trial for this new offence (see [15]). In the case of pure heroin and cocaine the threshold amounts (in grams) for the restructured offences are s.71- 750.0 g, s.71AA - 250.0 g, 71AB - any amount, s.71AC - any amount.
Trafficking a commercial quantity
71AA. It is an offence to traffick in a commercial quantity of a drug or drugs of dependence. Penalty maximum 25 years imprisonment and or a fine of 3000 penalty units ($300,000).
Trafficking to a child
71AB. Provides that it is an offence to traffick in a drug of dependence to a child. Even the smallest quantity of a drug of dependence will be sufficient when trafficked to a child. A similar provision currently exists in section 71(1)(ab). Penalty maximum of 20 years imprisonment and a fine up 2400 penalty units ($240,000) may be imposed.
If a person trafficks in a commercial quantity or a large commercial quantity of a drug or drugs of dependence to a child, then the prosecution would charge the offender with the more serious offence (either 71 or 71AA). (Section 422 of the Crimes Act 1958 refers).
Trafficking
71AC. Provides that it is an offence to traffick in a drug of dependence. It is not necessary to prove that a specific or minimum amount of a drug of dependence was trafficked (the smallest amount of a drug of dependence will be sufficient). A person convicted of trafficking a drug of dependence is liable to be sentenced to a maximum of 15 years imprisonment and a fine up to 1800 penalty units ($180 000) may also be imposed.
Note: Section 73(2) provides that possession of a certain scheduled quantity of a drug may be deemed trafficking. For both heroin and cocaine the trafficable threshold is 3.0 grams and simple possession of that amount or more is deemed trafficking.
[6]. Restructures offences and creates new offences relating to the cultivation of narcotic plants. They are new sections 72, 72A, 72B and, 72C.
Cultivation of narcotic plants – large commercial quantity (New Offence)
72. It is an offence to cultivate a narcotic plant in a large commercial quantity. The amount required to constitute a ‘large commercial quantity’ of a drug of dependence is defined in clause 4 of the Bill, which refers to the tables in Schedule Eleven to the Act. A person convicted of the cultivation of a narcotic plant in a large commercial quantity is liable to be sentenced to life imprisonment. In addition, a fine may be imposed of up to 5000 penalty units ($500 000).
Notes
- A unanimous jury verdict is required for a conviction on trial for this new offence (see [15] ).
- In respect to Cannabis L the threshold quantities (in kilograms and grams) for each level of offence are respectively –s.72 - 250 kg or 1000 plants, s.72A - 25 kg or 100 plants, s.72B - 250.0 g or 10 plants.
Cultivation of narcotic plant – commercial quantity
72A. It is an offence to cultivate a narcotic plant in a commercial quantity. Penalty – 25 years imprisonment and a fine of up to 3000 penalty units ($300 000).
Note: The threshold for a commercial quantity of Cannabis L. is 25.0 kg or 100 plants.
Cultivation of narcotic plant
72B. It is an offence to cultivate a narcotic plant. It is not necessary to prove that a specific or minimum amount of a narcotic plant was cultivated (the smallest amount of a narcotic plant will be sufficient). The maximum penalty applicable to a person convicted of the cultivation of a narcotic plant depends on whether a finding in respect to trafficking is made by the court. If the trial judge or magistrate is satisfied on the balance of probabilities that the offence was not committed for any purpose relating to trafficking in the plant (for example for personal use) the maximum penalty that may be imposed is imprisonment for one year or a penalty of not more than 20 penalty units ($2000) or both. If the trial judge or magistrate is not satisfied, the maximum penalty that may be imposed is 15 years imprisonment. By virtue of section 109 of the Sentencing Act 1991 a fine of up to 1800 penalty units ($180 000) may be imposed.
72C. It is a defence to the prosecution of an offence of cultivation of a narcotic plant that the person did not know or suspect (and could not reasonably have been expected to have known or suspected) that the plant being cultivated was a narcotic plant. A similar provision currently exists in the Principal Act (see section 72(5)).
Note: Section 73(2) provides that possession of a certain scheduled quantity of a drug may be deemed trafficking. For both Cannabis L the trafficable threshold is 250.0 grams and simple possession of that amount or more is deemed trafficking.
[8]. Substitutes new Parts 2 and 3 of Schedule Eleven of the Act.
Column 1A of Part 2 of Schedule Eleven sets out the large commercial quantity of Cannabis L: being 250 kilograms or 1000 plants. This is the minimum quantity of drugs of dependence that must be proved to have been cultivated for an offence of cultivating a large commercial quantity of a narcotic plant. The remaining columns 2, 3 and 4 are the same as in the existing Act.
Column 1A of Part 3 of Schedule Eleven sets out the large commercial quantity for a number of drugs of dependence (the drugs that are most frequently trafficked in large quantities). Column 1B of Part 3 of Schedule Eleven sets out the large commercial quantity of a number of drugs of dependence when that drug of dependence is a quantity of a mixture of substance and the drug of dependence. Column 2, 2A, 3 and 4 of Part 3 are the same as Columns 2, 2A, 3 and 4 of Part 3 in the same as the existing Schedule Eleven to the Principal Act.
[10]. The amendments apply to offences alleged to have been committed after the commencement of the provisions introduced by the Bill.
[11]. Confiscation Act 1997. If a person is charged with or found guilty of an offence against new sections 71, 71AA, 72 or 72A, they may be subject to automatic forfeiture processes or civil forfeiture processes.
[12]. Magistrates' Court Act 1989. Amends Schedule 4 which lists those indictable offences that may be heard and determined summarily by the Magistrates’ Court. Charges made pursuant to the new sections 71, 71AA, 72 or 72A (trafficking in a commercial or large commercial quantity) must be heard and determined in the County Court or Supreme Court. The remaining indictable drug trafficking and cultivation offences may be heard and determined summarily if the Magistrates' Court considers that the charge is appropriate to be determined summarily and the defendant consents to a summary hearing.
[13]. Bail Act 1977. If a person is charged with an offence under new sections 71, 71AA, 72 or 72A (trafficking in a commercial or large commercial quantity), the court must refuse bail unless the court is satisfied that exceptional circumstances exist which justify bail being granted.
If a person is charged with an offence under new sections 71AB (trafficking to a child), 71AC (trafficking) or 72B (cultivation of narcotic plant), the court must refuse bail unless the court is satisfied that the person has shown cause why his or her detention in custody is not justified.
[14]. Amends clause 4 of Schedule 1 of the Sentencing Act 1991 which deals with the sentencing regime for persons convicted of ‘serious offences’ (this category of offences were introduced in 1997) including ‘serious drug offences’ (‘serious offences’ are listed in Schedule 1). The amendent is to ensure that the serious offences sentencing regime applies to the restructured trafficking offences.
Unanimous jury verdict required for life sentence
[15]. Amends the Juries Act 2000 to provide that on the trial of a person for the offences of large commercial quantity trafficking in a drug or drugs of dependence or of cultivating a narcotic plant in a large commercial quantity, the verdict of the jury must be unanimous. This is in keeping with other offences carrying life sentences.
For all other drug trafficking and cultivation of a narcotic plant offences, the verdict of the jury may be by majority in accordance with the provisions of that Act. The amendment applies to trials for the new section 71 commencing on or after the commencement of the Bill.
[16]. Amends the Crimes Act 1958 to provide that the provisions concerning the taking of forensic samples apply to the new trafficking in drugs and cultivation of narcotic plants offences.
Consequential amendments to the Surveillance Devices Act 1999 have also been made to provide that a ‘serious drug offence’ includes the new trafficking in drugs and cultivation of narcotic plants offences.
The Committee makes no further comment.
Essential Services Commission Bill
Introduced: 22 August 2001
Second Reading Speech: 23 August 2001
House: Legislative Assembly
Minister introducing Bill: Hon. J. Brumby MLA
Portfolio responsibility: Premier
Purpose
The Bill provides for the establishment of an Essential Services Commission (Commission) which will act as an independent economic regulatory body in Victoria.
The Commission will subsume many of the functions, objectives, powers and staff of the Office of the Regulator-General (ORG).
The Bill also repeals the Office of the Regulator-General Act 1994. Many of the provisions of that Act have been incorporated, with necessary amendments, in the Bill.
- The Commission will be established as a body corporate (Part 2) and will be authorised to regulate prices in regulated industries and exercise other powers in relation to quality standards, licensing and market conduct (Part 3).
- The Commission will have the power to collect information that may assist in the performance of its functions (Part 4).
- It may undertake inquiries for the purposes of its functions (Part 5) and must conduct an investigation into any matter referred to it by the Minister administering the Electricity Industry Act 2000 and the Gas Industry Act 2001 (Part 6).
- Appeals against a requirement made by the Commission or a decision or determination of the Commission will be dealt with by a special appeal panel (Part 7).
Content and Committee comment
[2]. The Act comes into operation on 1 January 2002.
[4]. The Governor in Council by Order may declare an industry to be a regulated industry (but not railways and trains and rail and tram infrastructure) after having regard to certain factors.
[7]. Establishes a body corporate called the Essential Services Commission and [8] sets out the objectives of the Commission and [9] provides the Commission represents the Crown. [10]. Sets out the general functions of the Commission.
[15]. The Commission must consult with relevant prescribed agencies when making a determination, conducting an inquiry and preparing and reviewing the Charter of Consultation and Regulatory Practice. A prescribed agency must also consult with the Commission on specific matters if requested to do so by the Commission.
[17 to 24]. Deals with the constitution of the Commission and provides for prescribed qualifications and terms of appointment of the Chairperson; the terms of tenure of office of the Chairperson and makes provision for removal from office by the Parliament; an acting appointment as Chairperson; additional Commissioners to be appointed; tenure of office of an additional Commissioner and makes provision for removal from office by the Parliament; the remuneration of the Chairperson and other Commissioners; the employment of staff of the Commission under the Public Sector Management and Employment Act 1998.
Delegations
[26]. The Commission may delegate to a Commissioner, member of the staff or a member of a Division, committee or panel appointed or designated by the Commission any functions or powers of the Commission other than the power of delegation, the power to make a price determination under section 33 or the power to serve a provisional or final order under section 53. (Similar in terms to section 22 of the Office of the Regulator-General Act 1994).
The Committee notes the delegation power and considers the delegation is sufficiently defined for the purposes of the Act. |
[32]. The Commission may regulate prices for goods and services supplied by or within a regulated industry which are specified in the empowering instrument.
[32 to 35]. Set out specific powers relating to price determination, licensing, standards and conditions of service, market conduct and other economic regulatory matters.
Power to obtain information
[37]. The Commission may require a person to give information or a copy of a document. A person who without lawful excuse fails to comply with any requirement made under this section will be guilty of an offence.
It is a lawful excuse to fail to give information or provide a document where the giving of it may incriminate that person. An immunity is provided for damage caused to any person as a consequence of the giving of information to the Commission under this clause.
[40]. The Commission may conduct an inquiry if it considers it is necessary or desirable and must conduct one where the Minister refers an inquiry to it.
[42]. The Commission must publish notice of an inquiry in the Government Gazette, in a daily newspaper and on the internet and send the notice to the relevant regulated entities and any person or body that the Commission considers should be notified.
[44]. The Commission may serve upon any person a summons to provide information, produce documents or appear before the Commission to give evidence. Civil proceedings do not lie against any person for damage or loss suffered because of the giving in good faith of a document or information to the Commission. (See [63] for section 85 statement below).
[47]. Part 6 (Special References) consists of [48 to 52] and provides for the expiry of this Part on 31 August 2004. [48]. Provides for special references by the Minister administering the Electricity Industry Act 2000 or the Minister administering the Gas Industry Act 2001.
[51]. The Commission may serve a summons on any person to provide information or a document or appear before it. [51(7)] provides that civil proceedings do not lie against any person for damage or loss suffered because of the giving in good faith of a document, evidence or information to the Commission. (See [63] for section 85 statement below).
[53]. The Commission may make orders for compliance or rectification of a contravention where there is or is likely to be a contravention of a determination or conditions of a licence.
[55]. An aggrieved person may appeal against a requirement made by the Commission under section 37 (giving of information and documents) or a decision of the Commission under section 38(2)(c) or 38(2)(d) (restriction on disclosure of confidential documents).
[56]. Establishes an appeal panel for the hearing of an appeal and sets out the powers of the appeal panel.
[60]. The Commissioners and staff of the Commission are protected from personal liability for matters done in good faith in the exercise of a power or a function under the Act or related legislation. Any liability attaches instead to the Commission. [61]. It is an offence to disclose confidential or commercially-sensitive information or to use such information to obtain any pecuniary or other advantage.
[62]. Excludes any right to bring proceedings in respect of a determination or order for compliance on grounds other than that there was no power to make the determination or order or that proper procedural requirements were not complied with. (See [63] for section 85 report below).
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.
[63]. The jurisdiction of the Supreme Court in relation to applications referred to in sections 44(7), 51(7) and 62 is to be restricted.
The Committee notes the section 85 statement in the Minister’s Second Reading Speech –
Clauses 44(7) and 51(7) of the Bill preserve provisions of the Office of the Regulator-General Act 1994 and continue to exclude civil proceedings for damage that may be suffered in respect of the provision of information or documents, in the context of an investigation or inquiry by the commission.
The reason for limiting the jurisdiction of the Supreme Court with respect to these matters is to give persons who wish to make statements or provide information a degree of confidence that their statements or information can be made or given without fear of litigation. This is likely to enhance the quality of the submissions and information made available to the commission, and thus enhance the quality of its reports and decisions.
Clause 62(1) of the Bill provides, as does the corresponding provision in the Office of the Regulator-General Act 1994, that proceedings cannot be brought in respect of a determination or provisional or final order except on the grounds that there was no power to make the determination or order, or that the procedural requirements in relation to the making of the determination or order have not been complied with. The government believes that this clause does not preclude questions of errors of law being considered by the court.
The Bill provides for an improved appeals process, which will satisfy the requirements of appellants being given a fair hearing and a considered decision on any appeal being made.
It is necessary to ensure that where the Commission makes orders regarding compliance with determinations or with the terms of any licence, such orders should operate without risk of questions challenging the substance of the order being referred to court, except on the grounds outlined above. This is necessary to ensure that legitimate regulatory decisions are directly and effectively enforceable and that in turn, the integrity of the regulatory framework administered by the commission is maintained.
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. |
Regulations
[65]. The Governor in Council may make regulations for the purposes of the Act. The regulations are subject to the disallowance of the Parliament.
The Committee notes the regulation making powers and accepts that they are appropriate to give effect to the purposes of the Act. |
[66]. A review of the Act is to be completed within 5 years from its commencement.
[67 to 69]. Repeals the Office of the Regulator-General Act 1994 and provides for transitional savings provisions as a consequence of this repeal.
[70 to 96]. Make consequential amendments to various Acts.
The Committee makes no further comment.
Gene Technology Bill
Introduced: 22 August 2001
Second Reading Speech: 23 August 2001
House: Legislative Assembly
Minister introducing Bill: Hon. J. Thwaites MLA
Portfolio responsibility: Minister for Health
Purpose
The Bill seeks to regulate gene technology in Victoria. The Committee notes the following points from the Second Reading Speech and the Explanatory Memorandum –
- The Bill is the Victorian component of a national system regulating all activities involving genetically modified organisms. The Commonwealth counterpart legislation is the Gene Technology Act 2000.
- The Commonwealth does not have the constitutional power to regulate all dealings with gene technology such as those which may be carried out by individuals, state agencies and institutions that are not working with or through corporations. State legislation ensures that all dealings with the technology are covered in the one national scheme of complementary Commonwealth, State and Territory legislation.
- The national Gene Technology Regulator has been established as an independent statutory office-holder with powers similar to an Auditor-General or Ombudsman.
- Applications received by the regulator which involve the intentional release of a genetically modified organism (GMO) into the environment and which may pose risks to public health and safety or the environment will be open for public comment. The details of a licence granted by the regulator will be available for public scrutiny on the record of GMO and GM product dealings.
- The Bill describes the functions and powers of the Gene Technology Regulator. One of the regulator's key functions is to authorise specific dealings with genetically modified organisms.
- All dealings with GMO will be prohibited unless that dealing is authorised by a licence or the dealing is a notifiable low-risk dealing, or an exempt dealing as prescribed in the regulations, or is included in the GMO register established under the Commonwealth Act.
- Before issuing a licence, the regulator will be required to prepare a risk assessment and risk management plan with respect to the dealings proposed to be authorised by the licence.
- The regulator must invite public submissions and may hold a public meeting on the risk assessment and risk management plans prepared by the regulator.
- The regulator will also be prohibited from issuing a licence unless he or she is satisfied that the proposed dealing is consistent with any policy principle issued by the ministerial council and the applicant is a suitable person to hold a licence.
- The Bill enables the regulator to give directions to a licence holder, or to a person covered by a licence. It also provides powers of inspection in relation to monitoring and offences, the powers and obligations of inspectors and procedures relating to warrants.
- Sections 45 and 47 of the Infertility Treatment Act 1995 prohibits any form of human cloning and experiments mixing animal and human sex cells. This prohibition remains in place and is in no way effected by provisions in this Bill.(clauses 192B, 192C and 192D)
Content and Committee comment
[Clauses]
[2]. The Act comes into operation on a day or days to be proclaimed but not later than 1 December 2001.
[3]. The object of this Bill is to protect the health and safety of people and the environment, by identifying risks posed by gene technology, and by managing those risks through regulating certain dealings with genetically modified organisms (GMOs).
[5]. It is intended by Parliament that the Bill form a component of a nationally consistent scheme for the regulation, by the Commonwealth, States and Territories, of certain dealings with GMOs. [6]. The Act will bind the Crown.
[10]. Provides definitions for the purposes of the Act including ‘genetically modified organism’ (GMO).
[15]. Declares that the Bill is not intended to cover the field in respect of GMOs. The provisions of the Bill are in addition to, and not in substitution for, the requirements of any other law of Victoria whenever enacted.
[16]. Allows State laws to operate concurrently with the Commonwealth Act and [17] notes that the Commonwealth Act includes a provision allowing corresponding State laws to confer functions, powers and duties on certain Commonwealth officers and bodies.
[18]. Is a double jeopardy provision providing for liability under State or Commonwealth legislation but not both.
[19]. Allows applications to be made to the Commonwealth Administrative Appeals Tribunal (CAAT) for review of reviewable decisions. The Administrative Appeals Tribunal Act 1975 (Clth) (excluding Part IVA) and the regulations made under that Act, apply as laws of Victoria in relation to reviewable decisions.
[21]. The Ministerial Council may issue policy principles in relation to specific issues.
[24]. Allows the Ministerial Council to issue codes of practice in relation to gene technology, that have been developed in accordance with the consultation requirements.
Appointment of Regulator
[26]. Notes that section 26 of the Commonwealth Act creates the office of Gene Technology Regulator and [27] sets out the functions of the Regulator.
Delegations
[29]. Allows the Regulator to delegate to a specified class of officers –
(1) The Regulator may, by instrument in writing, delegate any of the Regulator's powers or functions under this Act or the regulations to any of the following –
(a) an employee within the meaning of the Public Sector Management and Employment Act 1998;
(b) an officer or employee of a State agency, if the functions of the State agency relate, whether directly or indirectly, to GMOs or GM products;
(c) an employee of a Commonwealth authority, if the functions of the Commonwealth authority relate, whether directly or indirectly, to GMOs or GM products.
The Committee notes the delegation power and considers the delegation is sufficiently defined for the purposes of the Act. |
Regulation of dealing with a GMO
[32]. Creates an offence of knowingly dealing with GMOs, unless –
- authorised by a GMO licence,
- a dealing is a notifiable low risk dealing,
- a dealing is an exempt dealing (under the regulations), or
- the dealing is included on the GMO register.
[34]. The holder of a GMO licence is guilty of an offence if the holder intentionally acts or omits to take an action, knowing that the act or omission contravenes the licence or being reckless as to whether the act or omission contravenes the licence.
[33, 35, 36 and 37] – Strict liability offences*.
*Note : A strict liability offence is made out by proof that an event occurred without the necessity of proof of knowledge, or reckless intent of the perpetrator.
[33]. Creates a strict liability offence for unauthorised dealing with a GMO. Such offences are punishable by smaller pecuniary fines. However the person must know that they are dealing with a GMO. [34]. A person must not breach a GMO licence condition.
[35]. Describes the same offences as [34] but enables strict liability to apply in respect of those offences. Where the dealing is on the Register or contravenes a condition specified on the Register it is considered a strict liability offence. However the person must have knowledge of the conditions of the licence (see also [63] ).
[36]. It is an offence if a person deals with a GMO knowing that it is a GMO, and the dealing is on the GMO register and contravenes a condition specified in the GMO Register relating to the dealing.
[37]. A person is guilty of an offence if the person deals with a GMO knowing that it is a GMO and the dealing is a notifiable low risk dealing, and the dealing contravenes the regulations. Strict liability applies in relation to establishing that the dealing is a notifiable low risk dealing and that it contravened the regulations.
Section 4D(a)(i) – Undue trespass to rights and freedoms The Committee notes the strict liability offences in clauses 33,35, 36 and 37 and accepts that there are significant issues of public health, safety and environmental protection involved with the compliance regime sought to be established by the legislation. The Committee however notes that in respect to these strict liability offences the person must at least know that they are dealing with a GMO, and that there is therefore an element of fault involved to found liability. The Committee accepts that given the significant public health and safety issues involved, that once a person knows they are dealing with GMO it is reasonable to require that they comply with the GMO dealing in strict accord with the regulatory regime established by the legislation. The Committee draws the sections to the attention of the Parliament. |
Aggravated offences
[38]. Describes the concept of an aggravated offence, as referred to in [32, 33, 34 and 35]. An aggravated offence is one that causes significant damage, or is likely to cause significant damage, to the health and safety of people or to the environment. Aggravated offences carry pecuniary penalties four (4) times the amount for the general offence and prison sentences more than double that for the general offence.
The Committee notes the inclusion in the legislation of a more serious level of aggravated offences and notes that the question whether there is ‘significant damage‘ is a matter for case by case judicial discretion. |
Licensing System
[40 to 45]. Describes the requirements and procedures for applying to the Regulator for a licence authorising specified dealings with one or more specified GMOs.
[47]. The Regulator must prepare a risk assessment and risk management plan in relation to the dealings proposed to be authorised by the licence not involving the release of GMO into the environment.
[49]. Describes the process that the Regulator must follow (including public notification), and the matters the Regulator must consider, if the Regulator is satisfied that at least one of the dealings proposed to be authorised by the licence may pose significant risks to the health and safety of people or the environment where the dealing involve the intentional release of GMO into the environment.
[50]. Before issuing a licence under [49], the Regulator must prepare a risk assessment and risk management plan with respect to the dealings proposed to be authorised by the licence.
[53]. Allows the Regulator to take other actions for the purpose of deciding the application, in addition to those required by this Division. These actions may include holding a public hearing.
[56]. The Regulator must not issue the licence unless satisfied that any risks posed by the dealings proposed to be authorised by the licence are able to be managed in such a way as to protect public health and safety and the environment.
[58]. The Regulator must have regard to certain matters including relevant previous convictions in deciding whether a natural person or a body corporate is a suitable person to hold a licence and "relevant convictions" for the purposes of the Act are defined as convictions against laws relating to health or the safety of people and the environment committed within the immediate past 10 years prior to the application for the licence and was an offence punishable by fine of $5,000 or more or 1 year imprisonment or more.
Parliamentary Committees Act 1968, s.4D(a)(i) – Undue trespass to rights and freedoms The Committee notes that in the Commonwealth Act there is provision for a ‘spent convictions’ scheme which permits certain old convictions to be disregarded for the purposes of that Act. The sub-section in the Commonwealth Act provides – 58(4) Nothing in this section affects the operation of Part VIIC of the Crimes Act 1914 (which includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them). The Committee notes that there is no counterpart Victorian sub-section dealing with the application of spent convictions in certain circumstances. The Committee will seek further advice from the Minister as to whether any disadvantage may be suffered by Victorian applicants under the provisions of the proposed Victorian legislation which would not be suffered by other applicants. |
[62 and 63]. Deals with conditions that may be imposed on a GMO licence including a condition that the licence holder inform any person covered by the licence, to whom a particular condition of the licence applies, of the particular condition applying to the person.
[64]. It is a condition of a licence that if a person is authorised to deal with a GMO the licence holder must permit the Regulator to enter premises where the dealing is being undertaken, for the purposes of auditing or monitoring the dealing.
[65]. It is a condition of a licence that the licence holder provides additional information to the Regulator that he or she becomes aware of, as to any risks to public health and safety or to the environment, associated with the dealings authorised by the licence, or of any contraventions of the licence by a person covered by the licence, or unintended effects of the dealings authorised by the licence. The licence holder is taken to have become aware of additional information if he or she was reckless as to whether such information existed or if he or she was reckless as to whether such contraventions had occurred or unintended effects existed.
[66]. A person may inform the Regulator if he or she becomes aware of additional information as to any risks to public health and safety or the environment associated with the dealings authorised by the licence; any contraventions of the licence; or any unintended effects of the authorised dealings. [67]. No civil proceedings may be brought against a person who has given information to the Regulator under [65 or 66], where another person has suffered loss, damage or injury as the result of that disclosure.
[71]. Allows the Regulator to vary a licence at any time, by written notice if satisfied that any risks posed by the dealings proposed to be authorised by the licence as varied, are able to be managed so as to protect public health and safety and the environment.
[72A]. A person who is the holder of a GMO licence is liable to pay a charge for the licence as prescribed in the regulations. The amount prescribed may be in the nature of a tax and not be related to the cost of providing any service.
Parliamentary Committees Act 1968, s.4D(a)(iv) – Inappropriately delegates legislative power The Committee notes that the normal legislative practice is to allow regulations to impose fees and/or charges that permit the costs of providing a service to be recovered from those using the service. Clause 72A permits taxes to be levied by delegated legislation, and may therefore be regarded as an inappropriate delegation of legislative power. The Committee will write to the Minister to seek further information concerning the necessity to include a taxation by regulation power in this Bill. |
Regulation of notifiable low risk dealings with GMO
[74]. Allows regulations to be made which declare a dealing with a GMO to be a notifiable low risk dealing for the purposes of the Act. Before such regulations are made the Regulator must be satisfied that the dealing would not involve the intentional release of a GMO into the environment.
[75]. Regulations may be made which regulate specified notifiable (or a class of) low risk dealings, for the purpose of protecting public health and safety or the environment.
[76]. Provides for the establishment and maintenance of the GMO Register.
[79]. Before placing a dealing with a GMO on the Register the Regulator must be satisfied that any risks posed by the dealing are minimal, and that it is not necessary for the persons undertaking the dealing to hold, or be covered by, a GMO licence in order to protect public health and safety or the environment.
[83]. Allows a person to apply to the Regulator for certification of a facility to a particular containment level.
Certification of facilities and accreditation of organisations
[82 to 98]. Allows for certification of GMO facilities to a particular containment level and accreditation of organisations in accordance of regulations issued by the Regulator.
Establishment of Committees
[100 to 105]. Notes that the Commonwealth Act provides for the establishment and membership of the Gene Technology Technical Advisory Committee to provide scientific and technical advice, on the request of the Regulator or the Ministerial Council, on a range of specific matters including gene technology, GMOs and GM products and the biosafety aspects of gene technology.
[106 to 110]. The Commonwealth Act also establishes the Gene Technology Community Consultative Committee to provide advice, on the request of the Regulator or the Ministerial Council, on specific matters including matters of general concern identified by the Regulator with respect to applications made under this Bill.
[111 to 116]. The Commonwealth Act provides for the establishment and membership of the Gene Technology Ethics Committee to provide advice, on the request of the Regulator or the Ministerial Council on specific matters including ethical issues relating to gene technology.
[118 to 126]. Provides for the terms and conditions of appointment of the Regulator.
Enforcement
[146]. The Regulator may give directions to a licence holder to take reasonable steps to bring that person back into compliance with the legislation, where the Regulator believes on reasonable grounds that the licence holder is not complying with the Bill or regulations. There are penalties for non-compliance with a notice.
[147]. The Supreme Court has power to grant injunctions with respect to breaches of the legislation and the regulations and [148] a court may order forfeiture of any thing used or involved in the commission of an offence by a person found guilty of that offence.
[150 and 151]. Authorises the Regulator to appoint State or Commonwealth employees to be inspectors who are to be issued with identity cards which must be produced on request by the occupier.
[152]. Provides powers of entry and monitoring to inspectors for the purpose of discovering whether the legislation or regulations have been complied with. An inspector may only enter premises if –
(a) the occupier of the premises has consented to the entry (the occupier must be informed that they may refuse consent and the consent must be voluntary, see[160] ) or
(b) the entry is made under a warrant under [172] or
(c) the occupier of the premises is a licence holder, or a person covered by a licence, and the entry is at a reasonable time. (see also licence conditions in [64] )
[153]. Describes the monitoring powers that an inspector may exercise for the purposes of finding out whether the legislation or regulations have been complied with including the answering of questions put by the inspector or documents requested by the inspector (see [176] privilege against self-incrimination).
[154]. The clause describes the inspector's powers of entry and seizure.
Emergency Powers of Search and Entry
[158]. Provides an inspector with emergency powers of entry and seizure and to require compliance with the legislation and regulations, when the inspector has reasonable grounds for suspecting that there may be a thing on premises in respect of which the legislation or regulations have not been complied with, and the inspector considers it necessary to use powers to avoid an imminent risk of death, serious illness, serious injury or to protect the environment.
The Committee notes that the clause permits entry, search and compliance powers to be exercised without either consent or a warrant. The clause further provides for powers to secure things until a warrant is obtained. The Committee notes that these powers may only be exercised where there are reasonable grounds (based on objective tests) to believe that there may be imminent risk of death, serious injury or environmental damage. The Committee draws Parliament’s attention to the provision. |
[159]. An inspector must show his or her identity card on request and [160] provides that where entry is by consent under the provision of the Act, that consent must be voluntary.
[161 and 162]. A copy of a warrant must be given to the occupier of the premises or a person representing the occupier and the inspector must make an announcement prior to entering premises under a warrant except where on reasonable grounds immediate entry is required to ensure a person's safety, to prevent serious damage to the environment or to ensure that the effective execution of the warrant is not frustrated. [163]. Compensation may be payable, in certain circumstances, by the Regulator to the owner of a thing.
[164 and 165]. In respect to goods originating outside Victoria from a ship or aircraft an inspector may examine goods, open and search baggage or a container and seize such goods if he or she believes on reasonable grounds that the goods are goods contain, evidential material. The inspector is also authorised to question a person who appears to be associated with the goods, any question regarding those goods. Failure or refusal to answer a question relating to such goods. (However see [176] ).
[166 and 171]. Deals with practice and procedure relating to seizure and seized goods.
[172 to 175]. Deals with a warrant to enter premises and to exercise the monitoring powers set out in clause [153] and a warrant to enter premises and to exercise the powers set out in [154 and 155] and seize evidential material. Warrants may be applied for by telephone or other electronic means. There are offences for false or misleading information seeking a warrant.
[176]. Provides that nothing in this Part [149 to 177] affects the privilege against self-incrimination. The privilege is thus not abridged in any way.
[179 to 181]. Provides a table of specific decisions that are reviewable and those who may seek a review. The review may be an internal review.
[183]. Reviews are to be made pursuant to the Administrative Appeals Tribunal Act 1975 (Clth).
[184 and 185]. The Regulator may make a declaration that specified information is confidential commercial information and may refuse to make such a declaration if satisfied that the public interest in disclosure outweighs the prejudice that may arise from the disclosure.
[187]. It is an offence to disclose confidential commercial information except in specified circumstances. Confidential information is exempt under the Freedom of Information Act 1982.
[191]. Regulations may be made in relation to transitional matters.
[192]. It is an offence to knowingly give false or misleading information or produce a document that is false or misleading in a material particular, in relation to an application or in compliance or purported compliance, with the legislation or regulations.
[192A]. It is an offence to damage, destroy or interfere with equipment or premises where GMO dealings are being undertaken.
Human and animal cloning prohibited – 192B, 192C and 192D
[192B]. Notes that section 192B of the Commonwealth Act prohibits the cloning of whole human beings. This clause is not required in the Victorian legislation as section 47 of the Infertility Treatment Act 1995 prohibiting such cloning continues to apply.
[192C]. Notes that section 192C of the Commonwealth Act prohibits experiments or research involving putting human cells, or a combination of human cells and animal cells, into animal eggs. Section 45 of the Infertility Treatment Act 1995 prohibiting mixing human and animal gametes continues to apply.
[192D]. Notes that section 192D of the Commonwealth Act prohibits experiments or research involving putting a combination of human cells and animal cells into a human uterus. Section 45 of the Infertility Treatment Act 1995 prohibiting mixing human and animal gametes continues to apply.
[192E]. It is an offence to attempt to commit an offence against the provisions in the legislation. The penalty for an attempt is the same as for committing the offence. Sections 321N and 321Q of the Crimes Act 1958 define what in law constitutes an attempt to commit an offence.
Regulations
[193]. Provides a regulation making power with respect to matters required or permitted to be prescribed by the legislation, or necessary or convenient to be prescribed for carrying out or giving effect to the Bill. The regulations may require a person to comply with codes of practice or guidelines issued under the legislation.
The Committee notes the regulation making powers and accepts that they are appropriate to give effect to the purposes of the legislation. |
[194]. Provides for an independent review of the legislation after 4 years after its commencement.
The Committee makes no further comment.
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Scrutiny of Acts and Regulations Committee Last
Updated 19/9/2001 |