Alert Digest No. 4 of 2002
Tuesday, 7 May 2002

Purpose

The Bill amends the Constitution Act 1975 ("the Act") to provide for fixed 4 year Parliamentary terms to be served except in certain exceptional circumstances.

[Clauses]

[2]. The Bill (except clause 7) is to come into operation on the day of the first meeting of the Legislative Assembly elected at the next general election which may be held anytime on or after 30 November 2002. The Bill, therefore, will have no effect on the duration of the current Legislative Assembly. Clause 7 will come into operation on the day the proposed Electoral Act 2002 has not by then come into operation or on the first day of sitting of the next elected Parliament, which ever day is the later day.

[4]. Repeals section 8(3)(a) of the Act to remove the capacity of the Governor to dissolve the Assembly at any time after 3 years since it first met after a general election. It will still be possible for the Governor under section 8 of the Act to dissolve the Assembly before its full 4 year term is completed if –

• the Council rejects, or fails to pass within 2 months, a Bill of special importance;
• the Council rejects, or fails to pass within one month, an Appropriation Bill;
• the Assembly passes a resolution expressing a lack of confidence in the Premier and the other Ministers.

[5]. Substitutes a new section 38 in the Act to provide that unless the Assembly is dissolved early under section 8 of the Act, it will expire on the fifth Saturday before the closest Saturday to the fourth anniversary of the previous general election.

[6]. Inserts a new section 38A to ensure that a general election following the expiry of the Assembly will be held on the closest Saturday to the fourth anniversary of the previous general election. However, election day may be delayed by up to 3 weeks –

• to avoid election day following on a public holiday or the day after a public holiday;
• to avoid a general election being held on the same day as a federal election;
• if other exceptional circumstances exist e.g. State-wide fires or flooding or an outbreak of an epidemic disease among human beings or animals.

[7]. Makes amendments to the Act consequential on the passing of, and the changes of terminology being introduced by, the proposed Electoral Act 2002.

The Committee makes no further comment.

The Bill provides complementary amendments to the Electricity Safety Act 1998 and the Gas Safety Act 1997 to abolish the Electrical Appeals Board and the Gas Appeals Board established under those Acts and to transfer the appellate jurisdiction of each of those Boards to the review jurisdiction of the Victorian Civil and Administrative Tribunal ("VCAT").

The Bill also amends the Electricity Safety Act 1998 to vary the ratings which a fire control authority may assign to areas within Victoria for the purposes of that Act and the regulations, from "high" and "very high" to "low" and "high".

The Bill also amends the Electricity Industry Act 2000 to allow amendment of the Victorian Electricity Supply Industry Tariff Order to clarify its application or otherwise to tariffs charged by VENCorp.

The Bill also provides complementary amendments to the Electricity Industry Act 2000 and the Gas Industry Act 2001 to clarify that the cross ownership exemption for acquisitions that have been cleared by the Australian Competition and Consumer Commission may be granted irrespective of whether or not the person has made an application for authorisation in respect of the acquisition under the Trade Practices Act 1974 (Clth).

[2]. The provisions of the Act which provide for its purpose and commencement and which amend section 80 of the Electricity Safety Act 1998 with respect to the assignment of fire hazard ratings for the purposes of that Act and the regulations and the provisions of the Act which amend the Electricity Industry Act 2000 to provide for variation of the Tariff Order and which amend the Electricity Industry Act 2000 and the Gas Industry Act 2001 to clarify a cross ownership exemption under those Acts will commence on Royal Assent.

The remaining provisions commence on proclamation but not later than 31 December 2002.

[4]. Substitutes a new Part 6 of the Act, which includes a new section 69.

New section 69 provides that a person who is aggrieved by a decision of the Office of the Chief Electrical Inspector may apply to VCAT for review of the decision. The decisions on which an application for review may be made are substantially the same as those for which an appeal could be made to the Electrical Appeals Board with one exception.

[5]. Substitutes a new section 80(a) which enables a fire control authority to assign a fire hazard rating of "low" or "high" to any area of land in Victoria for the purposes of the Act or the regulations.

[8]. Repeals paragraphs (c) and (e) of section 157(1). These regulation-making powers are no longer required as they relate to the Electrical Appeals Board. The existing regulations will be revoked.

[11]. Substitutes a new Schedule 1 of the Act.

Clause 2 of the new Schedule 1 abolishes the Electrical Appeals Board on the commencement day and its members go out of office on that day. There are transitional provisions to protect actions taken by and matters pending before the abolished board.

[13]. Substitutes a new section 80 providing that a person who is aggrieved by a decision of the Office of Gas Safety may apply to VCAT for review of the decision. The decisions on which an application for review may be made are substantially the same as those for which an appeal could be made to the Gas Appeals Board.

[17]. Repeals paragraphs (bb) and (z) of section 118(1) of the Act. These regulation-making powers are no longer required as they relate to the Gas Appeals Board. The existing regulations will be revoked.

[19]. Substitutes a new Schedule 1 in the Act

Clause 2 of the new Schedule 1 abolishes the Gas Appeals Board and provides that its members go out of office on the commencement of the Act. There are appropriate transitional provisions applying to the defunct Board.

The Committee makes no further comment.

The Bill amends the Fisheries Act 1995 ("the Act") to –

• require the holders of recreational fishery licences to produce their licences when fishing,
• to enable general permits to be issued for indigenous ceremonies or events,
• to enable allowable catch to be set for sub-zones, to strengthen the enforcement provisions and to facilitate the operation of the Act.

The Bill makes a number of amendments to offence provisions in the Act to bring them into line with the terminology of section 8 of the Sentencing Act 1991 to ensure that those found guilty of an offence are treated the same way as a person convicted by a court of the offence.

Content and Committee comment

The provisions in the Bill (other than clauses 3 and 4) come into operation on the day after Royal Assent. Clauses 3 and 4 come into operation on proclamation but not later than 1 July 2003.

[3]. Inserts new section 44(2) and (3) which together require a person who claims to hold a recreational fishery licence when taking or attempting to take fish from inland or marine waters, or when using or possessing a recreational hoop net or mesh net in, on or next to Victorian waters, to produce the licence for inspection by an authorised officer or member of the police force, either immediately, or, if the person does not have the licence in his or her possession, within 7 days. The licence may be produced by sending it by post to the authorised officer

[5]. Amends section 49(2) to insert paragraph (h) to enable the Secretary to authorise the holder of a permit issued under section 49(1) to take fish (in areas where recreational fishing is authorised under the Act) for a specified indigenous cultural ceremony or event.

The Committee notes the comments in the Second Reading Speech –

Recognising the strong cultural and spiritual connection indigenous people have with the land and the sea, the Bill provides for a class of permits to allow the non-commercial harvest of fish beyond recreational bag limits for indigenous ceremonial or cultural events. These permits would be issued to a person nominated by the indigenous group to collect fish for a specific event. It is intended that such a permit would specify details such as where and when the fish may be taken and by whom.

[6]. Amends section 54 to constrain the Secretary from varying a fishery licence, permit, class of licence, or condition on a class of licence if the variation is inconsistent with any regulations, management plan or Ministerial direction.

[9]. Inserts new section 66A which sets out offences, for the purposes of sub-zones of quota fisheries, similar to the offences in section 66 relating to quota fisheries in general.

[10]. Inserts new section 68B providing that if fish are taken from Australian waters outside Victoria and no bag or size limits are applied by the relevant jurisdiction, then the Victorian bag and size limits apply.

[16]. Substitutes paragraph (h) and inserts a new paragraph (ha) into section 102(1).

Section 102(1) sets out provisions allowing an authorised officer or member of the police force to enter land, protected waters or any premises other than a dwelling house. This may be done for specified purposes in the administration of the Act or for ascertaining whether or not the provisions in or under the Act are being observed.

The specified purposes are set out in section 102(2). Previously paragraph (h) provided that one of those specified purposes was inspecting any document kept in connection with a number of topics.

The new paragraph (h) is simplified so that the specified purpose is inspecting any document that the officer reasonably believes to be relevant for the purpose of ascertaining whether or not the provisions of the Act, the regulations or a fisheries notice are being complied with.

The new paragraph (ha) adds a new specified purpose being the making of extracts, copies or notes of the contents of a document inspected under paragraph (h).

[18]. Inserts a new section 102A enabling an authorised officer or member of the police force to require the production of financial, accounting or business records kept by the holder of a licence or permit which relate to any activity connected with being the holder of that authority.

[20]. Inserts a new section 106(5A) of the Act dealing with forfeiture of property and provides that a court must order the forfeiture of a seized thing (even though the use of the thing is not prohibited under the Act, the regulations or a fisheries notice) if the person in respect of whom the court found an offence proven has been convicted or found guilty on 2 or more occasions of certain offences under the Act involving priority species.

[23]. Amends section 110 by substituting "Victorian waters" for "the coastal waters of Victoria" thus permitting a wider variety of circumstances in which a member of the police force may engage in hot pursuit of persons and boats beyond Victorian waters.

[31]. Amends section 151 by inserting new sub-sections (8A), (8B) and (8C). Section 151 allows a prescribed levy to be charged, levied and collected by the Secretary in respect of each prescribed class of licence or permit. The Minister may from the proceeds of a levy of a prescribed class of licence or permit make a grant to one or more recognised peak bodies relevant to that class. Normally, a regulation increasing the amount of a levy is subject to a requirement for a regulatory impact statement (RIS) under the Subordinate Legislation Act 1994 (with certain exceptions).

The effect of the new sub-section (8A) is to make an exception to the requirement for a RIS, providing that the relevant recognised peak body, having been consulted by the Minister, has notified the Minister in writing that all the affected licensees agree to the proposed increase in the levy. Sub-sections (8B) and (8C) mirror certain procedural requirements in the Subordinate Legislation Act 1994 regarding certification and tabling of the regulation.

106(8B and 8C) provide that the Scrutiny of Acts and Regulations Committee must be given a copy of the certificate and a copy must be tabled in each House of the Parliament.

The new sub-sections provide –

(8A) Despite the Subordinate Legislation Act 1994, a regulatory impact statement is not required before a regulation is made under this section if –

(a) the proposed increase in the rate of levy is to be charged, levied and collected from a class of access licence holder represented by a particular recognised peak body; and

(b) the Minister has consulted with the particular recognised peak body; and

(c) the particular recognised peak body has advised the Minister in writing that each of the affected access licence holders has agreed to the proposed increase in the rate of levy; and

(d) the Minister certifies in writing that this sub-section has been complied with.

(8B) The Minister must ensure that a copy of the certificate under sub-section (8A) is given to the Scrutiny of Acts and Regulations Committee as soon as practicable after the statutory rule is made.

(8C) A copy of the certificate under sub-section (8A) must be laid before each House of the Parliament at the same time as the statutory rule is so laid under section 15 of the Subordinate Legislation Act 1994.

The Committee makes no further comment.

The Bill makes miscellaneous amendments to the Guardianship and Administration Act 1986 ("the Act") and makes consequential amendments to the Mental Health Act 1986 and minor amendments to the Victorian Civil and Administrative Tribunal Act 1989.

The purposes of the amendments are to –

[2]. The provisions in the Bill come into operation on proclamation but no later than 1 January 2003.

[4]. Amends section 16 of the Act which provides that where the Public Advocate is conducting an investigation as directed by VCAT the Public Advocate may "request" that a person, government department, public authority, service provider, institution or welfare organisation provide information. The amendment allows the Public Advocate to "require" information from such people when carrying out such an investigation.

Clause 4(2) inserts a new section 16(1A) and provides that it is a reasonable excuse for a person to refuse or fail to produce information if providing the information would tend to incriminate the person.

[6]. Amends section 34(1) of the Act to allow VCAT to appoint an alternative guardian at any time when a guardianship order is in operation.

[7]. Inserts sub-sections (1A) and (1B) to section 35A of the Act to provide that a person over the age of 18 years may appoint an enduring guardian in a specified form. The proposed sub-sections allow the appointment of an alternative guardian in the same instrument.

[11]. Amends the definition of ‘patient’ in section 36 to remove the requirement that a patient for the purposes of the section have a permanent or long term disability.

The Committee notes the comments in the Second Reading Speech –

Consent to medical and dental treatment

In 1999, the Guardianship and Administration Act was amended to include a substitute consent regime for incompetent people in relation to their medical and dental treatment (part 4A of the act). At present, part 4A applies to a 'patient', which is defined to mean 'a person with a disability which is a permanent or long term disability'.

In monitoring the operation of part 4A, the Public Advocate has become aware of serious difficulties with the interpretation of part 4A, in particular, the phrase 'permanent or long term' disability, as some disabilities are indeterminate or episodic in nature. This has meant that where a person has a temporary or indeterminate disability (for instance, a psychotic episode or an extended period of unconsciousness), and cannot consent to treatment, medical practitioners often ask the next of kin of the person for consent to treat the person, placing the next of kin under undue pressure.

To address the practical problems experienced in the interpretation of 'permanent or long term', the Bill amends the definition of 'patient' in the Guardianship and Administration Act so that 'patient' applies to a 'person with a disability'. Following this amendment, people with a temporary or indeterminate disability may also be included in the substitute consent regime under part 4A of the act.

However, to ensure that the personal autonomy of an ordinarily competent patient is protected, the Bill makes clear that the substituted consent regime does not apply where the patient is likely to recover capacity in a reasonable time. That is, non-emergency treatment will generally await the patient's recovery so that the patient can determine whether or not to consent to the proposed treatment him or herself.

This approach is designed to preserve, so far as practicable, the fundamental principles of personal autonomy and bodily integrity which underpin the legal requirement to obtain informed patient consent to medical treatment, and to ensure that hasty resort is not had to substituted consent in circumstances where the patient is expected to recover capacity to consent within a reasonable time.

Accordingly, the Bill provides that where a 'patient' is likely to be capable, within a reasonable time, of giving consent to the carrying out of medical or dental treatment, the person responsible (which is defined in section 37 of the Guardianship and Administration Act and includes a person appointed by the patient under the Medical Treatment Act 1988 or a person appointed under a guardianship order) can only consent to the carrying out of the treatment, and a registered practitioner can only carry out that treatment if –

Given that some disabilities are of indeterminate duration, and to provide the flexibility to deal with unusual situations, the bill provides that if the person responsible or the registered practitioner has reason to believe that the carrying out of the treatment would be against the patient's wishes, the practitioner or person responsible may apply to VCAT for its consent to the carrying out of the treatment.

It should be noted that a registered practitioner cannot carry out any medical or dental treatment on a patient where a relevant refusal of treatment certificate is in force in relation to that patient under the Medical Treatment Act 1988.

The Guardianship and Administration Act currently provides for a registered practitioner to carry out emergency medical or dental treatment on a patient without consent, where the treatment is necessary to save the patient's life, prevent serious damage to the patient's health or to prevent the patient from suffering or continuing to suffer significant pain or distress. The amendment to the definition of 'patient' will now mean that people with a temporary or short-term disability will also be included in the emergency treatment regime of the act, unless a refusal of treatment certificate under the Medical Treatment Act 1988 is in force in relation to that person.

[16]. Amends section 41 of the Act which provides that a registered practitioner must not carry out any medical or dental treatment on a patient where there is a certificate of refusal of treatment in force. The amendment ensures that the section also applies to special procedures.

[17]. Replaces section 42E of the Act to provide that where a patient is likely to recover capacity within a reasonable time, VCAT may only consent to a special procedure if it is carried out for the purposes of medical research and would be in the patient's best interests; and where a patient is not likely to recover capacity to consent to the procedure on their own behalf within a reasonable time, VCAT may only authorise the carrying out of a special procedure where the procedure is in the best interests of the patient.

[19]. Inserts section 42HA which deals with consent to medical or dental treatment where a patient is likely to recover capacity to consent within a reasonable time. In these circumstances the person responsible can only consent to the carrying out of the treatment where the registered practitioner reasonably believes, and has stated in the patients clinical records, that a further delay in carrying out the proposed treatment would result in a significant deterioration in the patient's condition and where neither the registered practitioner nor the person responsible has any reason to believe that the carrying out of the treatment would be against the wishes of the patient. Where there is doubt there is further provision for an application to VCAT.

[21]. Inserts section 50A which allows an administrator to make gifts from the represented person's estate. The proposed section provides that an administrator may make a gift of the represented person's property only if the value of the gift is not more than what is reasonable in the circumstances and in particular, the represented person's circumstances and the gift is either to a relative or close friend of the represented person and is of a seasonal nature (eg. a birthday) or for a special event (eg. birth or marriage); or a type of donation that the represented person made when they had the capacity to do so or might reasonably be expected to make.

[22]. Inserts section 55(4A) into the Act. Section 55(4) currently provides that an administrator may seek the opinion of VCAT in relation to aspects of the administration order. The proposed new sub-section provides that VCAT may on its own initiative direct or give an advisory opinion to an administrator concerning any matter.

[40]. Substitutes a new section 85(1) to extend the range of decision-makers who can consent to non-psychiatric treatment on behalf of a patient who is incapable of giving informed consent to the treatment.

New section 85(1)(a) provides that, in relation to a patient 18 years of age or over, consent to non-psychiatric treatment can be provided on behalf of a patient who is incapable of giving informed consent by the first person in the list who is reasonably available, willing and able to make a decision concerning the proposed treatment.

New section 85(1)(b) provides that, in relation to a patient under 18 years of age, the patient's parent, guardian or custodian can consent to non-psychiatric treatment if the patient is incapable of giving informed consent. The authorized psychiatrist will continue to be able to provide consent if there is no parent, guardian or custodian who is reasonably available, willing and able to make a decision.

The Committee makes no further comment.

The Bill amends the Magistrates' Court Act 1989 ("the Act") to establish a Koori Court Division of the Magistrates' Court and provides for the jurisdiction and procedure of that Division. The objective of the Bill is to ensure greater participation of the Aboriginal community in the sentencing process of the Magistrates' Court. The Koori Court scheme is a pilot program and the amendments made by the Bill are to sunset prior to 1 July 2005. Pilot courts will be established in Shepparton and Broadmeadows.

The Committee notes the comments in the Second Reading Speech –

[2]. The provisions in the Bill (other than section 10) commence on the day after Royal Assent. Section 10 comes into operation on a day to be proclaimed, but no later than 1 July 2005.

[4]. Defines "Aboriginal elder or respected person", Aborigine", "family member" and "Koori Court officer" for the purposes of the Act.

[6]. Inserts new sections 4D to 4G in the Act.

New section 4D establishes a new Koori Court Division of the Magistrates' Court.

New section 4D(4) requires the Koori Court Division to exercise its jurisdiction with as little formality and technicality, and with as much expedition, as the Act and the Sentencing Act 1991 and the proper consideration of the matters before the Court permit.

New section 4D(5) requires the Koori Court Division to take steps to ensure, so far as practicable, that any proceedings before it are conducted in a way which it considers will make it comprehensible to the defendant, a family member of the defendant or any member of the Aboriginal community who is present in court.

New section 4E confers jurisdiction on the Koori Court Division to deal with a proceeding for an offence given to it by section 4F and to deal with a breach of a sentencing order made by it (including any offence constituted by such a breach) or variation of such a sentencing order and any other jurisdiction given to it by or under this or any other Act.

New section 4F(1) provides that the Koori Court Division may deal with a proceeding for an offence other than an offence constituted by a breach of a sentencing order made by it if –

(a) the defendant is Aboriginal; and

(b) the offence is within the jurisdiction of the Magistrates' Court, other than a sexual offence or an offence against section 22 of the Crimes (Family Violence) Act 1987 (breach of intervention order or interim intervention order) or an offence arising out of the same conduct as that out of which the breach arose; and

(c) the defendant intends to plead guilty or has pleaded guilty or intends to consent to the adjournment of the proceeding to participate in a diversion program; and

(d) the defendant consents to the proceeding being dealt with by the Koori Court Division.

New section 4G deals with the sentencing hearing in the Koori Court Division. Section 4G(2) allows the Koori Court Division to consider any oral statement made to it by an Aboriginal Elder or respected person.

New section 4G(3) allows the Koori Court Division to inform itself in any way it thinks fit. This could include an oral or written statement made to it or a report or submission prepared or made to it or evidence given to it by an Aboriginal justice worker, a community corrections officer or a health service provider. It also allows a victim of the offence or a family member of the defendant or anyone else that the Koori Court Division considers appropriate to make a statement, whether oral or written, or prepare a report or submission or give evidence.

New section 4G(3)(d) confers additional power on the court over and above that conferred by Sentencing Act 1991, which deals with victim impact statements.

[7]. Inserts a new section 17A in the Act which provides that for the purposes of the Koori Court the Secretary may appoint Aboriginal elders or respected persons from the Aboriginal community.

[8]. Inserts a new section 144 in the Act which provides a rule-making power in respect of the Koori Court Division of the Magistrates’ Court.

[9]. Inserts in Schedule 8 to the Act a new clause 28 which provides that the amendments made by the Bill apply with respect to a proceeding for an offence, irrespective of when the offence was committed or the proceeding commenced.

[10]. Repeals the substantive amendments made by the Bill and comes into effect on a day to be proclaimed, but no later than 1 July 2005.

The Committee makes no further comment.

[2]. The provisions in the Bill come into operation on the day after Royal Assent.

[6]. Amends a number of the search warrant provisions in section 12 of the State Act. The amendments extend the classes of persons who can apply for search warrants. Presently, only members of the Authority can apply for search warrants under section 12. Under the proposed amendments a member of the Authority and a member of the staff of the Authority who is a member of the State police will be able to apply for a warrant.

The clause also extends the classes of persons who can issue search warrants. Presently, only Judges of a State Court can issue a warrant under the State Act. Both Judges of a court of Victoria and Federal Court Judges will be included within the definition of "issuing officer" under the proposed amendments.

The clause also inserts a new subsection (6A) into section 12 to clarify that a person executing a search warrant under that section may only use such reasonable force as is necessary for the execution of the warrant. These amendments are consistent with equivalent amendments made to the Commonwealth Act.

[7]. Makes a number of amendments to section 13 of the Act. These amendments complement the amendments in clause 6 relating to the persons who may apply for, or issue, search warrants.

The clause extends the class of persons who may apply by telephone for a search warrant under section 12 to include a member of staff of the Authority who is a member of the police force of Victoria.

[8]. Amends section 15 of the Act to permit the Authority to direct a hearing officer to conduct a hearing on behalf of the Authority, and [10] provides for the appointment of hearing officers and the manner in which a hearing officer is to conduct a hearing.

[11]. Makes a number of amendments to section 17 of the Act which contains provisions regarding the power to summon witnesses and take evidence and extends the operation of section 17 to apply to hearing officers and hearings before hearing officers in the same manner as they apply to hearings before the Authority.

[12]. Makes a number of amendments to section 18 of the Act which contains provisions regarding the power to obtain documents and extends the operation of that section to apply to hearing officers and hearings before hearing officers in the same manner as they apply to hearings before the Authority.

The clause makes amendments in relation to the defence of reasonable excuse, self-incrimination and the penalty for non-compliance with section 18.

New section 18(3) removes the defence of reasonable excuse to refuse or fail to comply with a notice served on the person to produce documents. Under new section 18(3) a person who is served with a notice requiring the person to produce documents to the Authority will no longer be able to claim that he or she has a "reasonable excuse" for non-compliance with the notice. Instead, the defences available at common law for offences in general, for example duress, will apply to an offence of non-compliance with section 18. Further, the inclusion of "intentionally" makes it clear the offence is not one of strict liability.

Penalties for contravention of section 18 are increased from imprisonment for six months or a penalty of 10 penalty units ($1,000) to a level 6 imprisonment (5 years) or 200 penalty units ($20,000).

Offences under the new amendments may be heard by the Magistrates' Court (i.e. an indictable offence heard summarily).

[14]. Makes a number of amendments to the provisions in section 19 in relation to the failure of a witness to attend and answer questions.

The clause removes the defence of reasonable excuse from section 19(1) for a person who fails to comply with a summons to attend a hearing. The defences available at common law for offences generally, for example duress, will apply to an offence of non-compliance with section 19(1).

The clause also removes the defence of reasonable excuse from section 19(2) for a person who fails to take an oath or affirmation, answer a question or produce a document or thing the person was required by a summons to produce, the defences available at common law for offences generally, for example duress, will apply to an offence of non-compliance with section 19(2). Further, the inclusion of "intentionally" makes it clear that the offence is not one of strict liability.

The clause makes a number of amendments in relation to self-incrimination, the penalty for non-compliance with section 19 and legal professional privilege. The proposed amendments are related to similar proposed amendments to section 18 made by clause 12.

Proposed sections 19(4) and 19(5) set out new provisions dealing with the privilege against self-incrimination which reflect similar amendments made to the Commonwealth Act. Presently, if a witness appearing at a hearing before the Authority claims that the answer to a question or the production of certain documents or a thing might tend to incriminate the person:

* The Authority must make a decision as to whether it is a valid claim.

* If it is a valid claim, the person has a reasonable excuse for not answering the question or producing the document or thing.

* However, the person will not have a reasonable excuse if the Director of Public Prosecutions or the State Attorney-General (or authorised person) (as applicable) gives the person an undertaking in writing that any answer, document or thing, or anything derived from the answer, document or thing, will not be used in evidence against the person in any later proceedings for an offence (subject to the exception that the evidence can be used in proceedings in respect of the falsity of evidence given by the person).

* If the person is given such an undertaking or the person does not have a valid claim, then the person must answer the question or produce the document or thing and it is an offence for the person to fail to do so.

The general effect of the proposed amendments is that if a witness appearing at a hearing before the Authority claims that the answer to a question or the production of certain documents or a thing might tend to incriminate the person:

* The person must answer the question or produce the document or thing and it is an offence for the person to fail to do so.

* However, the answer or document or thing is not admissible in evidence against a person in any later criminal proceedings or a proceeding for the imposition of a penalty (subject to the existing exception in relation to false evidence) without the need for an undertaking.

Proposed section 19(5) contains a use immunity in relation to self-incriminating material which applies in the circumstances set out in proposed section 19(4). Section 19(4) provides that the use immunity in proposed section 19(5) applies if:

* before answering a question that the person is required to answer at a hearing before the Authority;

* before producing, in answer to a summons, a business document that sets out details of earnings received by the person in respect of his or her employment and does not set out any other information; or

* before producing a thing in answer to a summons;

the person claims that the answer, document or thing might tend to incriminate the person or make the person liable to a penalty.

Where the circumstances set out in proposed section 19(4) exist, the effect of proposed section 19(5) is that the answer, document or thing cannot be used as evidence against the person, except in proceedings in relation to the falsity of evidence given by the person. Unlike the present position, under section 19(5) the derivative use of any evidence from the answer, document or thing may be used against the person. The proposed amendments in relation to the privilege against self-incrimination are consistent with similar amendments to the Commonwealth Act.

The Committee notes the comments in the Second Reading Speech –

The Bill will remove the derivative use immunity that currently exists under the state act, so that an investigatory body will be able to derive evidence from self-incriminatory evidence given by a person at a National Crime Authority hearing for use at a later trial. However, a person's self-incriminatory admissions themselves won't be able to be used against a person in later proceedings. This protection will be specifically contained in the state act, which will replace the existing mechanism of the need for a special undertaking by the Director of Public Prosecutions.

In this regard, the government considers that the public interest in the National Crime Authority having full and effective investigatory powers and the use of incriminating material derived from evidence given to the National Crime Authority outweigh the merits of affording full protection to self-incriminatory material. The proposed provisions are comparable to those contained in the corporate regulatory regime administered by the Australian Securities and Investment Commission.