Introduced: 15 May 2002
Second Reading Speech: 15 May 2002
House: Legislative Council
Member introducing Bill: Hon. B. Forwood MLC
Portfolio responsibility: Private Members Bill
Purpose
The Bill proposes to regulate the compensation of persons who die or suffer injury arising out of, or in the course of, their voluntary participation in adventure activities which by their nature involve inherent risk of injury to participants, particularly where the physical or environmental challenge or the element of risk form part of the participant's enjoyment of the activity.
Content and Committee comment
[Clauses]
[2]. The Bill comes into operation on 1 July 2002.
[3]. Provides definitions for the Act included amongst them are –
"adventure activity" means any Operator's approved adventure activity conducted by or under the supervision or control of that Operator in the course of the Operator's business, to the extent that such activity is engaged in Victoria.
"injury" means physical or mental injury.
[5]. The provisions of the Act apply to and in respect of any adventure contract.
[6]. The Governor in Council may make regulations for the purposes of the Act; fees for the purposes of the Act; the activities which may be specified as an Operator's approved adventure activity; the terms and conditions which apply to Operator approvals granted under Part 2; and any matter authorised, required or prescribed for the purposes of the Act.
| The Committee notes the regulation making powers and considers they are appropriate to give effect to the purposes of the Act. |
[7]. Delegation
The Minister may, by instrument, delegate to any person any function or power of the Minister under this Act, other than this power of delegation.
| The Committee notes the unlimited delegation provision and will write to the Member to seek further advice as to the need or desirability to use such a provision. |
[8 to 13] Deal with processes related to the application, approval, variation and revocation to be an operator for the purposes of the Act.
[14]. Deals with actions for damages and provides that a person shall not recover any damages in any proceedings in respect of the injury or death of a participant arising out of or in the course of an adventure activity, where the person participated in that adventure activity on or after the commencement of this Act except in accordance with this Part.
Where a person is entitled to compensation in respect of injury or death under any of the specified legislation in the Bill the provisions of that legislation shall prevail to the extent of any inconsistency.
The Committee notes that under the provisions of the Bill recovery of damages for injuries in respect to future claims are limited to persons assessed as having a ‘serious injury’, being a degree of impairment assessed pursuant to clause 17 of 30 per centum or more. The Committee accepts that the question of where it is justified to abridge common law rights to bring proceedings for such injuries in the particular circumstances covered by the Bill is a matter for Parliament to consider. |
[15]. A participant may not bring proceedings unless a determination of the degree of impairment of the participant has been made. The insurer must make a determination of the degree of impairment of the participant as a result of the injury within 120 days of receiving a written application for a determination from the participant.
If the participant unreasonably refuses to comply with a request by the insurer that the participant submit to a medical examination, to be paid for by the Insurer, or in any way hinders such an examination, the period between the date on which the participant so refused to comply, or hindered the examination, and the date of the examination must be disregarded in calculating the period of 120 days. If the application is received during the first 104 weeks after the injury, the insurer may refuse to make a determination if the insurer is not satisfied that the participant's injury has stabilised. If the insurer determines that the degree of impairment of the participant as a result of the injury assessed is 30 per centum or more, the injury is deemed to be a serious injury within the meaning of this Part.
[16]. A participant may bring proceedings to recover damages in respect of the injury if the injury is deemed to be a serious injury. A dependant of a person may recover damages under Part III of the Wrongs Act 1958 in respect of the death of a participant.
[17]. Provides for the assessment of the degree of impairment.
[18]. Where there is no insurer, the Act with any necessary modification, apply as if the operator were the insurer.
The Schedule sets out the activities which may be specified as Operator's approved adventure activities. The list is not an exclusive list.
The Committee makes no further comment.
Agriculture Legislation (Amendments and Repeals) Bill
Introduced: 8 May 2002
Second Reading Speech: 9 May 2002
House: Legislative Assembly
Minister introducing Bill: Hon. K. Hamilton MLA
Portfolio responsibility: Minister for Agriculture
Purpose
The Bill -
makes miscellaneous amendments to the Plant Health and Plant Products Act 1995 and repeals certain redundant provisions;
amends the Sale of Land Act 1962 to require vendor's statements to include a warning to prospective purchasers of land that commercial agricultural production could affect their enjoyment of the land; and
repeals two redundant Acts, the Wheat Marketing Act 1989 and the Egg Industry (Deregulation) Act 1993.
Content and Committee comment
[Clauses]
[2]. Clauses 1 and 2 and clause 32 which repeals the Wheat Marketing Act 1989 and the Egg Industry (Deregulation) Act 1993 commence on the day after Royal Assent. The remaining provisions come into operation on proclamation. However, if clauses 30 and 31 (which relate to the amendment to section 32 of the Sale of Land Act 1962) have not commenced before 1 September 2002 they will come into operation on that day. If the remaining provisions (which relate to the amendments to the Plant Health and Plant Products Act 1995) have not commenced by 31 December 2003, they will come into operation on that day.
Amendments to the Plant Health and Plant Products Act 1995
[5]. Inserts new section 5A of the Act to allow the Minister to make any orders to declare a suspected pest or disease to be an exotic pest or disease if the Minister is of the opinion that it is harmful to the growth or quality of plants or plant products. The new section allows the declaration to occur in situations where a pest or disease is apparent but has not been identified as it allows the suspected pest or disease to be described by reference to a description of the organism or the symptoms or conditions of the affected plants or product.
[6]. Amends section 6 of the Act to provide that a person must not move prescribed materials from an area of Victoria declared to be a restricted area into any other part of Victoria without an assurance certificate, a plant health certificate or a plant health declaration and insert a lower maximum court penalty for individuals for the offences to make it suitable for infringement notices to be issued in relation to those offences.
[8]. Inserts new section 10(3) and 10(4) of the Act.
New section 10(3) provides for inspectors to direct the owner or a person apparently in charge of plants, plant products, plant vectors, packages, agricultural equipment, soil or beehives introduced into Victoria, a control area, a quarantine area or a restricted area to either return the items to the consignor or to treat or dispose of the items.New section 10(4) makes it an offence for a person who is given a written direction to refuse to comply with that direction.
[15]. Repeals sections 30 and 31 which provide for the regulation of the quality and labelling of seeds sold in Victoria for sowing. An industry code of practice is in place which regulates quality and labelling.
Strict liability offence
[19]. Substitutes sub-section (6) of section 43 and inserts new sub-section (6A) of section 43. Section 43 currently makes it an offence for a party to a compliance agreement to intentionally or recklessly fail to comply with a requirement imposed under the agreement. The amendment removes the requirement that the person "intentionally or recklessly" failed to comply with a requirement imposed by the agreement. The amended provision provides –
(6) A party to a compliance agreement must ensure that any requirements imposed on that party under the agreement are complied with. Penalty 100 penalty units.
Thus the amendment removes the element of intent as an ingredient of the offence.
A defence is provided by new section 43(6A) if the person establishes that he or she took all reasonable steps to ensure compliance with the agreement. The penalty is also reduced from 200 penalty units to 100 penalty units.
The Committee notes that the amendments remove the necessity to prove intent or recklessness and therefore change the offence to one of strict liability. The Committee notes that a due diligence defence is provided and that the penalty for the offence is reduced from 200 to 100 penalty units. |
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The Committee will seek further information from the Minister why it is considered desirable to change the nature of the offence to one of strict liability. |
[20]. Amends section 44 of the Act to provide that the Minister's power under section 5A of the Act to make interim orders in relation to exotic pests and diseases or suspected exotic pests and diseases can only be delegated to the Secretary.
[21]. Amends section 48 of the Act to allow the Secretary or an inspector to fix a minimum period of 2 days for a person to comply with an order, direction or notice issued under the Act instead of the current minimum period of 7 days.
[22]. Amends section 52(1)(e) of the Act to make it clear that the power for an inspector to require production of documents reasonably required for ascertaining whether the Act is being complied with includes any document required by or under the Act.
[25]. Amends section 59(1) of the Act to expand the power of inspectors to obtain information relating to suspected exotic pests or diseases.
[28]. Amends section 71 of the Act to make it an offence to hinder an inspector and to increase the penalty for offences against inspectors from 10 penalty units to 60 penalty units.
Amendments to the Sale of Land Act 1962 – Vendor’s Statements
[30]. Inserts new section 32(2)(cb) of the Act to require vendor's statements to include a warning to prospective purchasers of land that commercial agricultural production could affect their enjoyment of the land.
Repeals
[32]. Repeals the Egg Industry (Deregulation) Act 1993 and the Wheat Marketing Act 1989.
The Committee makes no further comment.
Introduced: 8 May 2002
Second Reading Speech: 9 May 2002
House: Legislative Assembly
Minister introducing Bill: Hon. J. Brumby MLA
Portfolio responsibility: Minister for State and Regional Development
Purpose
The main purposes of the Bill are to -
repeals the Albury-Wodonga Agreement Act 1973 ("the Act") and the Wodonga Area Land Acquisition Act 1973 and dissolves the Albury-Wodonga (Victoria) Corporation established under the Act.
provide for the transfer of the assets, contractual rights and obligations, and liabilities of that Corporation to the Albury-Wodonga Development Corporation established under the Albury-Wodonga Development Act 1973 (Clth); and provides for the winding-up agreement between Victoria and New South Wales and the Commonwealth for those purposes.
Content and Committee comment
[Clauses]
[2]. Provides for the Bill to come into operation on a day or days to be proclaimed.
The Committee notes the information in the explanatory memorandum that there is no fixed day for commencement as the precise date of commencement will depend on the time of signing of the proposed Albury-Wodonga Area Development Winding-up Agreement and the commencement of the relevant provisions of the Commonwealth and New South Wales Acts. In the circumstances the Committee accepts the need to use a commencement by proclamation clause. |
[4]. Repeals the Albury-Wodonga Agreement Act 1973 and the Wodonga Area Land Acquisition Act 1973.
[5]. Dissolves the Albury-Wodonga (Victoria) Corporation ("the Corporation").
[6]. Provides that the members of the Corporation cease to hold office on the dissolution of the Corporation.
[7 to 11]. Deal with the transfer of assets, contractual rights and obligations of the Corporation.
[13]. Provides a process for approval of a winding-up agreement between the Commonwealth, New South Wales and Victoria for the termination of the Albury-Wodonga Development Agreement (and amendments to that Agreement) approved by the Albury-Wodonga Agreement Act 1973. The Minister administering the proposed Act is to table in each House of Parliament a determination that a specified form of agreement is the approved form of winding-up agreement. Either House may disallow the determination within 15 sitting days.
[14]. Provides that if the Minister's determination under clause 13 is not disallowed, the Minister may execute on behalf of Victoria an agreement substantially in accordance with the approved form of winding-up agreement.
[15]. Provides that if the agreement referred to in clause 14 is signed on or on behalf of the Commonwealth, New South Wales and Victoria, the agreement is approved by Parliament. The agreement is to be known as the Albury-Wodonga Area Development Winding-up Agreement.
In respect to clause 13 to 15 the Committee notes the following passage from the Minister’s Second Reading Speech –
The winding-up agreement is currently being negotiated between Victoria, New South Wales and the commonwealth. It will deal with a range of transitional arrangements.
When negotiations are completed, the government will table in each house of Parliament a determination that a specified form of agreement is the approved form of winding-up agreement. Either house may disallow the determination within 15 sitting days. The New South Wales and commonwealth governments will also undertake this exercise.
If this determination is not disallowed, the Bill authorises the Minister for State and Regional Development (or another minister) to execute on behalf of Victoria an agreement substantially in accordance with the approved form of the winding-up agreement. If the agreement is signed by Victoria, New South Wales and the Commonwealth, then the agreement is approved by Parliament.
The Committee notes the inter-governmental agreement between New South Wales, Victoria and the Commonwealth will be tabled in each House of the Parliament and is subject to disallowance within 15 sitting days. |
[20]. Provides for the making of regulations containing provisions of a savings or transitional nature. This power is included in case any unexpected transitional issue arises. In order for a transitional provision to operate effectively it may have to be made retrospective but that date cannot be earlier than the date of Royal Assent of the Act.
The Committee notes the regulation making powers allow for retrospective regulations to be made to the date of Royal Assent. The Committee notes the comments in the explanatory memorandum –
The Committee accepts that they are appropriate to give effect to the purposes of the legislation. |
The Committee makes no further comment.
Appropriation (2002/2003) Bill
Introduced: 7 May 2002
Second Reading Speech: 7 May 2002
House: Legislative Assembly
Minister introducing Bill: Hon. J. Brumby MLA
Portfolio responsibility: Treasurer
Purpose
The Bill provides appropriation authority for payments from the Consolidated Fund in respect of the 2002/2003 financial year.
Content and Committee comment
[Clauses]
[2]. The Bill comes into force on Royal Assent.
[3]. Provides that the Treasurer may issue the stated amount out of the Consolidated Fund in respect of the financial year 2002/2003 for the purposes set out in Schedule 1. Those sums may be increased if legislation or determinations result in increased salaries and related costs.
[4]. Declares that the Consolidated Fund is appropriated to the extent necessary for the purposes of clause 3.
The Committee makes no further comment.
Appropriation (Parliament 2002/2003) Bill
Introduced: 7 May 2002
Second Reading Speech: 7 May 2002
House: Legislative Assembly
Minister introducing Bill: Hon. J. Brumby MLA
Portfolio responsibility: Treasurer
Purpose
The Bill provides appropriation authority for payments from the Consolidated Fund to the Parliament in respect of the 2002/2003 financial year.
Content and Committee comment
[Clauses]
[2]. The Bill comes into force on Royal Assent.
[3]. Provides that the Treasurer may issue the stated amount out of the Consolidated Fund in respect of the financial year 2002/2003 for the purposes set out in Schedule 1. Those sums may be increased if legislation or determinations result in increased salaries and related costs.
[4]. Declares that the Consolidated Fund is appropriated to the extent necessary for the purposes of clause 3.
The Committee makes no further comment.
Building (Further Amendment) Bill
Introduced: 14 May 2002
Second Reading Speech: 14 May 2002
House: Legislative Assembly
Minister introducing Bill: Hon. M. Delahunty
Portfolio responsibility: Minister for Planning
Purpose
The Bill amends the Building Act 1993 ("the Act") to transfer the responsibility for the issue of occupancy permits in relation to places of public entertainment and temporary structures from the Building Commission to building surveyors; provide for temporary structures permits to replace occupancy permits with respect to temporary structures; and enable emergency orders and building notices and orders to be directed at builders; and to otherwise improve the operation of the Act.
Content and Committee comment
[Clauses]
[2]. Sections 1 and 2 come into operation on the day after Royal Assent. Part 2 (sections 3 to 6) comes into operation on 1 July 2003. The remaining provisions of this Act come into operation on 1 January 2003.
[3]. Amends various sections of the Act to provide for the transfer of responsibility for places of public entertainment and temporary structures from the Building Commission to building surveyors.
[4]. Inserts a new Division 2A which set out the regime for temporary structures permits being new sections 63A to 63O.
[6]. Amends the inspection powers of the Building Commission contained in section 63 of the Act providing that the Commission may inspect any place of public entertainment at any time to determine whether the Act, the regulations or the conditions of any occupancy permit are being complied with.
[8]. Substitutes sections 102 and 103 concerning emergency orders directed at builders where municipal building surveyors believes that building works are a danger to life or property.
[10]. Substitutes section 106 to allow building notices to be served on owners and occupiers in certain circumstances where building contraventions or unsafe work has occurred.
[12]. A person served with a notice under clause 10 may make representations to the relevant building surveyor about the matters in the notice
The Committee makes no further comment.
Business Licensing Legislation (Amendment)
Bill
Introduced: 15 May 2002
Second Reading Speech: 16 May 2002
House: Legislative Assembly
Minister introducing Bill: Hon. C. Campbell MLA
Portfolio responsibility: Minister for Consumer Affairs
Purpose
The Bill amends the Associations Incorporation Act 1981, the Business Names Act 1962, the Estate Agents Act 1980, the Motor Car Traders Act 1986 and the Travel Agents Act 1986 to facilitate electronic document transactions under those Acts. The Bill amends the delegation powers in the Business Licensing Authority Act 1998.
The Bill also clarifies the provisions relating to the public registers, established by the above Acts by specifying the information that must be contained in each register and the right of the public to access that information. In order to ensure the protection of the privacy of people whose personal information is held in a register, purposes have been included for the keeping of each register which enables a person to apply to have public access to their personal information restricted. The restriction would only be permitted in exceptional circumstances. A person affected by a decision relating to the restriction or otherwise of personal information will have a right to have that decision reviewed by the Victorian Civil and Administrative Tribunal ("the VCAT").
Content and Committee comment
[Clauses]
[2]. The provisions in the Bill come into operation on proclamation but not later than 31 December 2003.
Amendments to the Associations Incorporation Act 1981
[13]. Amends section 36D(1) to allow an incorporated association with assets of $10,000 or less to appoint an unregistered liquidator. An unregistered liquidator who must be a member of CPA Australia or the Institute of Chartered Accountants in Australia or a person approved by the Registrar.
[14]. Allows the Registrar to reinstate the registration of an association where the Registrar is satisfied that the association should not have been deregistered.
[16]. Inserts new sections 39 B and 39C.
New section 39B enables a person to apply to the Registrar to have public access to their personal information held on the register restricted. The Registrar may restrict public access to all or some of that person's personal information if satisfied that there are exceptional circumstances for doing so.
The new section also allows another person to apply for the release of personal information to which the Registrar has restricted public access. Despite the restriction on public access, the Registrar may release the information to that other person if the Registrar is satisfied that it is in the public interest to do so. If the Registrar has decided to release personal information, the information must not be released until 28 days after the Registrar gives written notice to the person whose information is to be released.
The new section 39C allows any person affected by a decision of the Registrar in relation to personal information to apply for review of that decision to the VCAT.
Amendments to the Business Names Act 1962
[39]. Replaces section 22 with three new sections 22, 22A and 22B.
New section 22 entitles a person to inspect or obtain a copy of, or an extract from, any information contained in the register. The entitlement to inspect or obtain an extract or copy, does not entitle a person to inspect or obtain a copy of or an extract from any document lodged with the Director or any information not forming part of the register.
New section 22A, enables a person to apply to the Director to restrict public access to their personal information held on the register. The Director may restrict public access to all or some of that person's personal information if satisfied that there are exceptional circumstances for doing so. The new section also allows another person to apply for the release of personal information to which the Director has restricted public access. Despite the restriction on public access, the Director may release the information to that other person if the Director is satisfied that it is in the public interest that the information is released to that person. Where the Director has decided to release the person's personal information, the information must not be released until 28 days after the Director gives written notice to that person.
New section 22B allows any person affected by a decision of the Director in relation to personal information to apply for review of that decision to the VCAT.
Amendments to the Estate Agents Act 1980
[47]. Inserts new section 19A allowing the Authority to require an applicant for a licence, or a licensee, to provide any consent necessary for the Authority to check or confirm information relevant to the application or licence.
These provisions will allow the Authority to conduct, for example, an interstate police check before determining an application, or other checks, where the Authority has notice that the licensee may have committed a disqualifying offence, at any time during the course of a licence.
[51]. Inserts new section 31C(2A) requiring that an application to the Authority for permission to hold an estate agent's licence where the applicant has been convicted of, or had proven against him or her, an offence involving fraud, dishonesty, drug trafficking or violence must be made in the form approved by the Authority and be accompanied by any information or documents required by the Authority. The Authority may conduct any inquiries and require the applicant to provide any further information required by the Authority and refuse the application if the information is not provided within a reasonable time.
[54]. Inserts in section 64 a requirement that an estate agent retain a signed copy of an auditor's report for 7 years. A penalty of 20 penalty units for non-compliance applies.
Strict liability offence
[58]. Inserts a new section 98A that provides for a new offence where a person destroys, conceals, mutilates or alters any document that he or she is required to keep under the Act or the regulations. A penalty of 100 penalty units applies. It is a defence if the person charged can establish that the action was not done with the intention of defeating the purposes of the Act.
98A. Offence to destroy documents required by the Act
(1) A person must not destroy, conceal, mutilate or alter any document that the person is required to retain under this Act. Penalty: 100 penalty units.
(2) It is a defence to a charge under sub-section (1) if the person charged can establish that the destruction, concealment, mutilation or alteration of the document was not done with the intention of defeating the purposes of this Act.
The Committee notes the strict liability offence and the defence provided. The Committee draws attention to the provision. |
Regulation making powers
[59]. Clarifies the regulation making power contained in section 99 to ensure that fees can be prescribed for copies of, or extracts from, the register. The clause also enables different fees to be prescribed according to differences in circumstances. For example, different fees may be charged for electronic and paper transactions.
The Committee notes the regulation making powers and accepts that they are appropriate to give effect to the purposes of the legislation. |
Amendments to the Motor Car Traders Act 1986
[67]. Inserts a new requirement in section 29B that an application under section 29B to the Authority for permission to hold a motor car trader's licence where a person has been convicted, or found guilty, of a serious offence, must be made in the form approved by the Authority and be accompanied by any information or documents required by the Authority. The new provision also allows the Authority to conduct further enquiries, require the applicant to provide any further information required by the Authority and to seek advice and information from any other person or body.
[69]. Amends section 35A to provide that a motor car trader is prohibited from employing a person who has within the last 10 years been convicted or found guilty of a serious offence, whether or not a conviction was recorded.
[71]. Inserts new section 83A which requires a person who sends a copy of a document or notice to the Director or Authority to retain the original of that document for 7 years.
[72]. Reduces the penalty for destroying, concealing, mutilating or altering any document that a motor car trader is required by the Act or regulations to keep to 100 penalty units and removes the option previously open to a court of imposing a term of imprisonment.
Amendments to the Travel Agents Act 1986
[80]. Inserts new section 41 which requires a person who sends a copy of a document or notice to the Director or Authority to retain the original of that document for 7 years. The clause also requires a person to keep a document that the Act or regulations require they keep, for a period of 7 years. A penalty of 20 penalty units applies for non-compliance with either of these provisions.
[82]. Inserts new section 42D making it an offence for a person to destroy, conceal, mutilate or alter any document that he or she is required to keep under the Act or the regulations. A penalty of 100 penalty units applies. It is a defence if the person charged can establish that the act was not done with the intention of defeating the purposes of the Act.
42D. Offence to destroy records required by the Act
(1) A person must not destroy, conceal, mutilate or alter any record that the person is required to keep by this Act or the regulations. Penalty: 100 penalty units.
(2) It is a defence to a charge under sub-section (1) if the person charged can prove that the destruction, concealment, mutilation or alteration of the document was not done with the intention of defeating the purposes of this Act.
The Committee notes the strict liability offence and the defence provided. The Committee draws attention to the provision. |
Amendments to the Business Licensing Authority Act 1998
[85]. Amends the delegation power contained in section 11 by substituting paragraphs (a) and (b) to enable the Authority to delegate any of its powers or functions except the power to determine an application for a licence or for permission to be licensed or to continue to be licensed despite the applicant being otherwise ineligible and the power to delegate. The section with these amendments limit delegations to persons in employed in a government department, statutory authority or other public body or otherwise employed pursuant to the Public Sector Management Act 1992.
[86]. Inserts a new provision, which enables a person to apply to the Authority to have public access to their personal information held on the register restricted. The Authority may restrict public access to all or some of that person's personal information if satisfied that there are exceptional circumstances for doing so. [see clause 39 above].
The Committee makes no further comment.
Casino (Management Agreement) (Amendment) Bill
Introduced: 8 May 2002
Second Reading Speech: 9 May 2002
House: Legislative Assembly
Minister introducing Bill: Hon. J. Pandazopolous MLA
Portfolio responsibility: Minister for Gaming
Purpose
The Bill amends the Casino (Management Agreement) Act 1993 ("the Act") to ratify a seventh deed of variation to the management agreement for the Melbourne Casino.
Content and Committee comment
[Clauses]
[2]. The provisions in the Bill come into operation on the day after Royal Assent.
[4]. Amends the Act by inserting a new section 6G to ratify the seventh deed of variation and provides for it to become part of the management agreement.
[5]. Amends the Act by including a reference to the proposed section 6G(1) in section 7(2). Section 7 allows for the Agreement to prevail should any part of it be inconsistent with the Casino Control Act 1991.
[6]. Inserts the seventh deed of variation into the Act as Schedule 8.
The Deed of Variation releases Crown Ltd from its obligation to construct a Lyric Theatre at the Melbourne Casino Complex. In return Crown Ltd will pay to the State $18 million in six instalments of $3 million each over five years. Crown Ltd will also construct or procure an alternative capital project in the vicinity of the Casino Complex.
The Committee makes no further comment.
Corrections (Interstate Leave of Absence) Bill
Introduced: 15 May 2002
Second Reading Speech: 16 May 2002
House: Legislative Assembly
Minister introducing Bill: Hon. A. Haermeyer MLA
Portfolio responsibility: Minister for Corrections
Purpose
The Bill amends the Corrections Act 1986 ("the Act") with respect to the granting of interstate leave of absence for prisoners.
Content and Committee comment
[Clauses]
[2]. The provisions in the Bill commence operation on the day after Royal Assent.
[3]. Substitutes a new section 81 to provide that the Governor in Council may, by Order published in the Government Gazette, declare that a law of a State other than Victoria is an interstate law for the purposes of the Part dealing with interstate orders.
[4]. Amends section 82(c) of the Act to specifically state that a compassionate purpose includes enabling an Aboriginal prisoner to be present at an occasion of special significance to the prisoner's immediate or extended family. This is not intended to limit the types of compassionate purposes for which leave may be granted.
Arrest without warrant
[7]. Amends section 84D to ensure that where prisoners from other States enter Victoria unescorted, they may be apprehended without warrant if they fail to return to the participating State or fail to comply with the permit. The prisoner may be taken before the Magistrates' Court and ordered to return, under escort, to the State in which the permit was issued.
[8]. Inserts a new section 84EA in the Act. The provision provides that the State accepts liability for any loss or damage sustained by any person in a participating State that is caused by an act or omission of a prisoner or an escort officer while in the participating State for the purpose of a permit. This does not affect any right of action that Victoria has against the prisoner or escort officer.
The Committee makes no further comment.
Criminal Justice Legislation (Miscellaneous Amendments) Bill
Introduced: 8 May 2002
Second Reading Speech: 9 May 2002
House: Legislative Assembly
Minister introducing Bill: Hon. R. Hulls MLA
Portfolio responsibility: Attorney-General
Purpose
The Bill amends the Crimes Act 1958, Corrections Act 1986, Police Regulation Act 1958, and Magistrates' Court Act 1989.
The particular reforms introduced concern -
improving disclosure of the prosecution case through progressive electronic disclosure to defence lawyers;
improving care of accused persons through use of fingerscans (electronic fingerprints) for faster and more reliable identification of persons in custody and through sharing of key information (e.g. that the person is a suicide risk) between agencies responsible for the safety of persons in custody;
improving court and police processes by enabling charges to be filed with a court electronically and by expanding police capacity to issue a summons;
providing a legislative framework for diversion programs;
improving the efficiency of proceedings for a summary offence where the defendant fails to appear at court, by allowing magistrates to determine a matter in the defendant's absence on the basis of an outline of evidence. Safeguards include penalty caps and re-hearing rights;
re-define ‘bail justice’ to include persons who are bail justices by virtue of holding a prescribed office and validate certain acts and decisions;
make technical corrections relating to amendments made by the Drugs, Poisons and Controlled Substances (Amendment) Act 2001, so as to bring certain drug offences back within the scope of such regimes as confiscation of proceeds of crime and collection of forensic samples;
allow magistrates in committal proceedings to order bodies corporate committed for trial to attend trial; and
remove the requirement that a court be satisfied that a party has incurred additional costs as a consequence of an adjournment, before granting an indemnity certificate, and clarify that deemed adjournment include appeals.
Content and Committee comment
[Clauses]
[2]. Provides that the Bill (apart from item 5.1 in the Schedule) will commence on the day after Royal Assent. Item 5.1 is deemed to have commenced on the day which section 5 of the Sentencing (Amendment) Act 2002 commenced.
Item 5.1 in the Schedule makes a minor amendment in section 18ZN by inserting the word ‘or’ after paragraph (a). Section 18ZN with the proposed amendment (underlined) provides -
(1) If the Drug Court is satisfied beyond reasonable doubt that an offender has failed to comply with a condition attached to a drug treatment order, by committing an offence punishable on conviction by imprisonment for more than 12 months, the Drug Court must--
(a) take any of the actions under section 18ZL(1) as though the offender had failed to comply with any other condition attached to the order; or
(b) cancel the treatment and supervision part of the order and, after taking into account the extent to which the offender complied with that part of the order--
The Committee notes that the amendment made to section 18ZN by item 5.1 in the Schedule to the Bill the insertion of the word ‘or’ in section 18ZN(1) after paragraph (a) in the Sentencing Act 1991 appears to be a technical amendment. The Committee accepts that the amendment is in the form of statute law revision amendment intending only to clarify the existing law. |
[3]. Inserts a new section 464NA in the Crimes Act 1958 which will allow police to take a fingerscan of a person who is in police custody and has been charged with an indictable offence or a summary offence for which a person may be fingerprinted. A fingerscan is a digital record of a fingerprint, and may be recorded on a computerised database. Fingerscans are not admissible as evidence. The new section only allows fingerscans to be taken for the purposes of identifying defendants once they have been charged, so as to assist in the identification and management of persons in custody. Reasonable force may be used in certain circumstances to take a fingerscan.
[4]. Provides for the destruction of fingerscans, by permanently de-identifying information from which the person's identity may be ascertained. When police are required to destroy fingerscans (for example, when the defendant is acquitted), they will be able to do so by electronic means which will make it impossible to identify the person.
[5]. Provides for the destruction of fingerscans taken from children who do not re-offend.
[7]. Amends the Corrections Act 1986 to allow corrections staff to take fingerscans of persons in custody.
[8]. Amends the Corrections Act 1986 to allow corrections staff to record, access, disclose, communicate or make use of personal information about persons in custody that is held on a computerised database. They will only be able to do so if the Minister of Corrections gives written authorisation. That authorisation may refer generally to classes of staff or classes of information. The authorisation may allow corrections staff to disclose information by placing it on a database to which police have access.
[9]. Provides that persons who are undertaking some form of work, or are taking part in a program of activities, as part of a diversion program will be deemed to be a worker employed by the Crown for the purposes of the Accident Compensation Act 1985. See also [17].
Amendments to the Police Regulation Act 1958
[11]. Amends section 127A of the Act to allow members of the police force to record, access, disclose, communicate or make use of information which comes to their knowledge by virtue of their office and is on a computerised database. They will only be able to do so if the Chief Commissioner of Police gives written authorisation. The authorisation may allow police to disclose information by placing it on a database to which corrections staff have access. The authorisation may also allow police to access information from a corrections database. This provision, in combination with the provisions in Clause 8, will allow for the exchange of personal information about persons in custody between corrections staff and police. This will assist both police and corrections staff to fulfil their duty of care toward persons in custody by making relevant information more readily accessible.
Amendments to the Magistrates’ Court Act 1989
[12]. Inserts a note into section 26 of the Act to make clear that the Electronic Transactions (Victoria) Act 2000 applies to allow a criminal charge to be filed at the Magistrates' Court electronically.
[14]. Inserts a new section 37A to provide that an informant may serve on a defendant charged with a summary offence an outline of the evidence against the defendant. An outline of evidence must be signed by the informant and kept for 12 months after the determination of the charge. Informants who sign an outline of evidence which they know to be false will be liable to the penalties of perjury.
[15]. Amends section 41(3) to provide that a magistrate has the power to adjourn proceedings on any terms he or she thinks fit where a defendant who has been charged with a summary offence and has been granted bail, fails to attend court in answer to bail.
[16]. Validates certain acts by people who were bail justices by virtue of occupying a prescribed office (as provided for by section 121 of the Act) which they did not in fact possess. Clause 25 below amends the definition of "bail justice" in the Bail Act 1977 and other Acts, so that prescribed office bail justices may exercise bail justice powers under those Acts. The clause validates certain acts of prescribed office bail justices in purported exercise of bail justice powers [Refer to section 85 Constitution Act 1975 statement at clause 18].
[17]. Inserts new section 128A in the Magistrates' Court Act 1989 and provides for a procedure whereby a magistrate can, if he or she thinks it appropriate, adjourn a criminal proceeding to enable the defendant to participate in a diversion program. If the defendant completes a diversion program (which can include apology to the victim, payment of compensation, attending counselling, or doing community work, etc.) to the satisfaction of the court, then the defendant will be discharged without conviction or finding of guilt. If the defendant does not complete the diversion program to the satisfaction of the Court, the matter will be dealt with as a normal criminal proceeding.
The defendant must first acknowledge responsibility for the offence and that both the defendant and the prosecution must consent to an adjournment for diversion purposes. The defendant's acknowledgment is not a formal plea and cannot be used in evidence against the defendant in a proceeding for that offence (e.g. where the defendant does not complete the diversion and the matter reverts to a usual criminal proceeding). Successful completion of a diversion program and subsequent discharge is a defence to a later charge for the same offence arising out of the same facts. Existing provisions relating to the confiscation of proceeds of crime, forfeiture of weapons, and the making of compensation and restitution orders are preserved.
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 (jurisdiction of the Supreme Court) of the Constitution Act 1975
[18]. Amends section 139A of the Magistrates' Court Act 1989 to provide that section 121A (the validation of acts by prescribed office bail justices provided for in clause 16) is intended to alter or vary section 85 of the Constitution Act 1975.
The Committee notes the comments in the Second Reading Speech –
It is the intention of clause 18 of the Bill to limit the jurisdiction of the Supreme Court.
In 1989 the function of deciding bail applications was removed from justices of the peace and given to the new office of bail justice. Bail justices are either people appointed by the Attorney-General or people who hold certain prescribed offices in the courts, such as Magistrates Court Registrars.
Since 1989, prescribed office bail justices have provided a valuable bail justice service, particularly in rural and regional areas where magistrates are not always available for bail matters. That service has been provided in good faith and on the understanding that proper bail justice powers came with the office of bail justice. However, it has recently emerged that the powers of prescribed office bail justices were not as broad as was commonly thought to be the case.
Prescribed office bail justices, who performed those functions in service to the Victorian community, deserve protection. Clauses 16 and 18 of the Bill ensure that acts or decisions are not invalid simply because the bail justice had not been appointed under section 120 of the Magistrates' Court Act and thereby preclude legal challenges to those acts or decisions on that ground.
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The Committee will seek information from the Attorney-General concerning any current proceedings that may be affected by this validating provision. |
Subject to the Attorney-Generals response 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. |
|
[19]. Amends the regulation-making power in the Magistrates' Court Act 1989 to enable regulations to be made prescribing a method of electronic filing of charges. This facilitates the provisions of clause 12 above.
[20]. Amends Schedule 2 to the Magistrates' Court Act 1989 to provide for a process of progressive electronic disclosure of the prosecution brief to defence lawyers in summary proceedings. The defence lawyer needs to be authorised by the Secretary of the Department of Justice to access the information electronically.
[21]. Provides for an alternative procedure where a defendant to a charge for a summary offence does not appear at court. If the informant has, not less than 14 days before the first court date, served an outline of evidence on the defendant, then the Court has the discretion to proceed to hear and determine the case on the basis of the outline of evidence. The Court may require further evidence to be provided.
The Court is limited in the range of sentences it may impose in the defendant's absence in this sort of proceeding. It may effectively only impose a fine of not more than $2000, or total fines of more than $5000, or make compensation or restitution orders of more than $2000.
Only prior convictions of the defendant for offences under the Road Safety Act 1986 may be given to the Court. The Court will notify the defendant of the outcome if they are found guilty and sentenced. Existing rights to re-hearing and appeal are preserved and defendants sentenced under this proceeding will have an automatic right to re-hearing within 28 days of service of the notice by the Court.
[22]. Enables the Magistrates' Court, when it has decided to commit for trial a body corporate defendant to order it to appear at its arraignment.
[23]. Makes it an offence for a body corporate that has been ordered to appear at its arraignment to fail to appear.
[24]. Inserts transitional provisions. The amendments relating to diversion proceedings will apply to criminal proceedings regardless of when they commenced.
The Committee makes no further comment.
Domestic Building Contracts (Conciliation and Dispute Resolution) Bill
Introduced: 15 May 2002
Second Reading Speech: 16 May 2002
House: Legislative Assembly
Minister introducing Bill: Hon. M. Delahunty MLA
Portfolio responsibility: Minister for Planning
Purpose
The Bill amends the Domestic Building Contracts Act 1995 in relation to the -
powers of the Director of Consumer and Business Affairs ("the Director") to conciliate domestic building disputes;
carrying out of building inspections in the event of domestic building disputes; and
provision of information in relation to domestic building disputes.
The Bill also amends the Building Act 1993 to -
provide for an increased building permit levy;
provide for the giving of information in relation to domestic building disputes;
increase the grounds on which disciplinary proceedings can be brought against a builder;
provide for certain reports to be evidence in proceedings against an unregistered builder; and
clarify the power to amend an insurance order.
The Bill also amends the Victorian Civil and Administrative Tribunal Act 1998 to allow the Tribunal to request information concerning domestic building disputes.
Content and Committee comment
[Clauses]
[2]. The provisions in the Bill come into operation on proclamation but not later than 1 July 2002.
Amendments to the Domestic Building Contracts Act 1995
The amendments to the Act give the Director a new conciliation power and expand the scope of technical inspectors by inspectors and enable the Director to exchange information with the Building Commission ("the Commission").
[3]. Inserts a new Part 3A (Conciliation of Disputes) consisting of new sections 43A to 43F.
New section 43B permits a building owner who is a party to a domestic building dispute to make a complaint to the Director about any matter concerning that dispute. 43C provides that a dispute may be referred to a conciliator. 43F provides that the Director may ask the Commission to appoint an inspector to examine any building that is the subject of the dispute.
[4]. Amends section 44 to allow a party to a domestic building dispute to ask the Commission to appoint an inspector to examine whether or not domestic building work is defective.
[7]. Inserts a new section 123A to permit the Director to give the Commission information in relation to a building dispute if the information will assist the resolution of the dispute.
Amendments to the Building Act 1993
[10]. Amends section 179 to allow the Building Practitioners Board to inquire into the conduct of a registered building practitioner who has failed to carry out a recommendation contained in an inspector's report under section 48 of the Domestic Building Contracts Act 1995.
[13]. Amends section 201 to provide for an additional building permit levy to be imposed of ·064 cents in the dollar of the cost of building work for which a building permit is sought over a threshold of $10 000. This new levy will apply to applications made on or after 1 July 2002.
Amendment to the Victorian Civil and Administrative Tribunal Act 1998
[15]. The Bill also amends the Victorian Civil and Administrative Tribunal Act 1998 to allow the Tribunal to request information concerning domestic building disputes. The Director or the Commission must comply with such a request.
The Committee makes no further comment.
Environment Protection (Resource Efficiency) Bill
Introduced: 8 May 2002
Second Reading Speech: 9 May 2002
House: Legislative Assembly
Minister introducing Bill: Hon. S. Garbutt MLA
Portfolio responsibility: Minister for Environment and Conservation
Purpose
This Bill introduces sustainability covenants into the Environment Protection Act 1970 ("the Act") to promote improvements in resource use efficiency and reductions in ecological impact, and makes changes to improve the operation of provisions dealing with waste management and resource recovery.
This Bill also repeals the Litter Act 1987 and re-enacts those provisions (with amendments) in the Act and makes minor amendments to the Local Government Act 1989 and the Magistrates' Court Act 1989.
Content and Committee comment
[Clauses]
[2]. Parts 1, 2, 4 and 5 and Division 1 of Part 3 come into operation on the day after Royal Assent. Divisions 2 and 3 of Part 3 and sections 32 and 33 come into operation on 1 July 2002. The remaining provisions come into operation on proclamation but not later than 1 January 2004.
[5]. Inserts a new Division 1A into Part IXA of the Act ("the new Division") consisting of new sections 49AA to 49AP. The new Division enables the Authority to become a signatory to sustainability covenants voluntarily entered into by industry sectors to increase the efficiency with which they use resources to produce products and services and to reduce their ecological impact. The Division also provides the Governor in Council with the power to declare that an industry has the potential to have a significant impact on the environment. If such a declaration is made and members of that industry do not enter into a sustainability covenant, the Division enables the Authority to require those members to prepare statements of ecological impact. Companies with a demonstrated significant environmental impact may be required to undertake further action to improve their resource use efficiency or to reduce their ecological impact. The regulatory provisions will not apply to covenant signatories. The
Division also enables the Authority to produce guidelines and undertake audits for the purposes of the new Division.New section 49AM makes it an offence to comply with a requirement imposed by the Authority under 49AF (Authority may require ecological impact statement), 49AG (statement required where industry fails to create covenant) and 49AH (requirement to take action to address major inefficiencies or impacts).
[6]. Amends section 32 to provide the Victorian Civil and Administrative Tribunal ("VCAT") with jurisdiction and powers to review decisions of the Authority with respect to certain notices served under the new Division.
[7]. Inserts new section 36BA into the Act to enable a person served with a notice under the new Division to apply to the VCAT for a review of the decision.
[8]. Amends Schedule A of the Act to provide for an infringement notice to be issued where there is a failure to comply with a requirement under the new Division.
Part 3 (clauses 9 to 36) deal with waste management and resource recovery.
[10]. Inserts a new section 16A into the Act that enables the Governor in Council, on the Authority's recommendation, to declare waste management policy for any aspect of the management of waste in Victoria.
[31]. Amends Schedule 1 to the Local Government Act 1989 to clarify that the functions of councils include the management, collection and disposal of municipal waste and resource recovery and recycling.
Part 4 – Litter (clauses 37 to 50)
The Bill integrates the Litter Act 1987 (which is repealed by the Bill) into the Act.
[39]. The clause consists of new sections 45A to 45ZL.
New sections 45K to 45M concern unsolicited documents and advertisements. New section 45N prohibits leaflets being placed on vehicles.
New section 45O prohibits bill posting.
New section 45Q provides that a person who engages another person (whether as an employee or as an agent) to deposit unsolicited documents at premises within an area must give a litter enforcement officer the name and address of that other person.
Strict liability offence
New section 45R deals with persons who commission the printing of unsolicited documents and creates an obligation for that person to ensure it is distributed in a way that prevents it from becoming litter. There is a defence provided that the person took all reasonable steps to comply with the provision.
| The Committee considered this provision may pose a potential undue trespass to rights and freedoms in that the defence provided offers little guidance as to the reasonable steps that need to be taken to avoid liability under the section by persons commissioning the printing of unsolicited documents. | |
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Given that the provisions will have general application and will require compliance by voluntary and non-commercial organisations, the Committee will seek further information from the Minister concerning the way in which relevant persons may be able to discharge their responsibility under this provision. |
New section 45U deals with offences related to loaded vehicles.
New section 45ZB provides for the issue of litter abatement notices.
New section 45ZF deals with powers of entry of litter enforcement officers. 45ZG provides that a person is obliged to give their name and address if an officer believes on reasonable grounds that the person has committed an offence. It is an offence to state a false name and or address.
New section 45ZI provides that persons may be required to give certain information to a litter enforcement officer. The information an officer may require from a person may include how, when and where the litter came into or left the person's possession; the name and address of anyone who had possession of the litter after the litter left the person's possession; the name and address of anyone else involved in the commissioning of the material that became the litter.
If required to do so by a notice, a person must give the officer within the time specified in the notice all the information sought in the notice that is within the person's knowledge or in the person's possession.
Privilege against self-incrimination
New section 45ZI(8) provides that any information given by a person in response to a notice under the section is not admissible in any prosecution against the person if, before giving the information, the person objected to giving the information on the ground that it might tend to incriminate him or her. The provision does not apply where the information given was false or misleading.
| The Committee notes the privilege against self-incrimination is only maintained if the privilege is invoked by the person prior to the giving of the information. | |
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The Committee is concerned at the abridgment of the privilege in the manner proposed by the provision and will seek further advice from the Minister concerning the extent or prominence of the caution to be given to persons required to answer questions pursuant to a written notice under proposed section 45ZI. |
[40 and 41]. Deal with VCAT’s continued jurisdiction related to litter offences.
[49]. Repeals the Litter Act 1987.
The Committee makes no further comment.
Gaming Legislation (Amendment) Bill
Introduced: 9 May 2002
Second Reading Speech: 14 May 2002
House: Legislative Assembly
Minister introducing Bill: Hon. J. Pandazopolous MLA
Portfolio responsibility: Minister for Gaming
Purpose
The Bill amends the Casino Control Act 1991, the Gaming and Betting Act 1994, the Gaming Machine Control Act 1991, the Gaming No. 2 Act 1997, the Interactive Gaming (Player Protection) Act 1999 and the Public Lotteries Act 2000.
Content and Committee comment
[Clauses]
[2]. Provides for the various commencement provisions of the Bill.
Many of the provisions in the Bill commence on the day after Royal Assent. Other than section 52(2) the remaining provisions will all commence prior to 1 July 2003.
Section 52(2) is deemed to have come into operation on 1 March 2001.
Amendments to the Casino Control Act 1991
[8]. Inserts new section 62AB in the Act to prohibit large denomination note acceptors (i.e. $100) and auto play facilities.
[9]. Inserts new sub-sections (2) and (3) in section 64 of the Act to enable the use of foreign currency in certain circumstances at the casino.
[13]. Inserts new section 78A in the Act to prohibit the casino operator from knowingly sending advertising material to excluded persons, whether excluded by the Police Commissioner, casino operator or the Director, or by an interstate Chief Commissioner.
[14]. Amends section 81(2) of the Act to enable casino staff to detain persons suspected of obtaining property (such as casino chips) by deception.
[15]. Inserts new sections 81AA and 81AAB in the Act. The new section 81AA(1) will prohibit a casino operator from providing cash facilities, or allowing another person to provide, cash facilities within 50 metres of any entrance to the casino that allow a person to obtain by means of those facilities, in any one transaction on any one debit or credit card, an amount of cash greater than $200.
New section 81AAB(1) requires a casino operator to pay out winnings or accumulated credits from a gaming machine exceeding $2000 by cheque. New section 81AAB(2) provides that the requirement does not apply to a gaming machine located in an area specified by notice of the Authority published in the Government Gazette, if the casino operator complies with any conditions specified in the notice. Under new section 81AAB(3), a casino operator will also have to pay out winnings or accumulated credits of any value by cheque at the request of the player. New section 81AAB(4) prohibits a casino operator from giving, or allowing another person to give, a person cash or gaming tokens in exchange for a cheque drawn on an account of the casino operator to enable that person to play a gaming machine in the casino.
[16]. Repeals section 128P of the Act which provides that a casino may be exempted from Acts or subordinate legislation.
[18]. Inserts new sub-section (1A) in section 144 of the Act to allow the Authority to delegate to a committee of three members any power or function of the Authority in relation to the cancellation, suspension or variation of casino licence or appointment of a manager if a licence is cancelled or suspended.
Amendments to the Gaming and Betting Act 1994
[20]. Amends sections 53 and 57 to increase TABCORP shareholder limits from 5% to 10% and remove restrictions on foreign ownership of shares.
Amendments to the Gaming Machine Control Act 1991
[31]. Amends section 27(2A)(c) of the Act to require an applicant for further gaming machines to submit economic and social impact material. Section 27(3B)(ac) requires the Authority to be satisfied that an amendment to a venue operator licence that would increase the number of gaming machines permitted at a venue will not have a detrimental net economic and social effect on the well-being of the municipal district in which the venue is located.
[38]. Inserts new sections 77B and 77C in the Act banning large denomination note acceptors and autoplay facilities on new games after 1 January 2003 and all games after 1 January 2008.
[40]. Inserts new sections 81A and 81B in the to prohibit a venue operator from providing cash facilities in the approved venue that allow a person to obtain by means of those facilities, in any one transaction an amount of cash greater than $200.
[51]. Amends section 159(1) of the Act to enable regulations to be made by the Governor in Council for advertising which is "generally associated with gaming", for example neon palm trees, banners, flags or hot air balloons and ban the use of signs advertising gaming rooms such as Wild Cash room, Fortunes, Easy Winnings, Lucky's etc, on the outside of gaming venues.
The clause inserts new paragraph (uc) in section 159(1) to empower the Governor in Council to make regulations in relation to the information which must be provided to participants before joining a loyalty scheme. The new paragraph also provides for the Governor in Council to make regulations regarding the provision to participants of player activity statements, including the particulars to be included in the statements.
[52]. Amends section 136(3)(a) to correct an error made by the Gambling Legislation (Miscellaneous Amendments) Act 2000. The provision is retrospective to 1 March 2001.
The Committee notes the following brief explanation found in the explanatory memorandum for this retrospective amendment. ‘It is necessary for this amendment to retrospectively apply to the commencement of that Act so that the taxation arrangements are not affected’ The Committee accepts that the error was a referencing error made by the amending legislation. |
Amendments to the Gaming No.2 Act 1997
[53]. Inserts new section 12K in the Act to provide for a suspension of a declaration of a community and charitable organisation if the Authority is considering whether to revoke the declaration and the Authority considers it in the public interest to suspend the declaration in the meantime. By adding a suspension provision, the Authority may suspend a declaration as soon as it believes the organisation to be acting improperly.
[55]. Amends section 79 of the Act to require inspectors to provide a person from whom items are seized with a copy of records certified by the inspector within a reasonable time rather than the 10 days currently allowed.
[56]. Inserts a new section 80A in the Act to prohibit a person from undertaking the functions of an inspector if he or she fails to produce on demand his or her identify card.
[58]. Substitutes a new section 83 in the Act to mirror offences in other Gaming Acts in relation to the obstruction etc. of inspectors. It will be an offence to assault, obstruct, hinder, threaten, abuse, insult or intimidate an inspector or member of the police force; fail to produce any equipment or records required by an inspector or member of the police force; fail to attend before an inspector or member of the police force when required; take, without permission, anything seized under the Act; fail to comply with an order to withdraw equipment from use; prevent a person from attending before an inspector or member of police force, producing any equipment of records, answering any questions or supplying any information to an inspector or member when that person is required to do so.
[60]. Inserts a new section 10A in the Interactive Gaming (Player Protection) Act 1999 to prohibit a person from employing another person to service, maintain or repair interactive gaming equipment unless that person holds a current technician's license under the Gaming Machine Control Act 1991.
Amendments to the Public Lotteries Act 2000
[62]. Amends the definition of "public lottery" in section 3(1) of the Act to enable non-monetary prizes to be offered as a prize in a public lottery. Currently the Act only allows the holder of a lotteries license under the Act to offer monetary prizes.
[64]. Inserts a new section 14A in the Act to require a licensee offering a non-monetary prize in a public lottery to offer a monetary prize of equivalent value (including the GST payable) as an alternative to the non-monetary prize.
The Committee makes no further comment.
Introduced: 8 May 2002
Second Reading Speech: 9 May 2002
House: Legislative Assembly
Minister introducing Bill: Hon. R. Hulls MLA
Portfolio responsibility: Attorney-General
Purpose
The Bill amends the Juries Act 2000 ("the Act’) including improving the procedures for assigning jury districts, providing for majority verdicts in civil trials with reduced juries of 5 jurors and clarifying provisions relating to persons disqualified or ineligible to serve as jurors.
Content and Committee comment
[Clauses]
[2]. Sections 1 and 2 come into operation on the day after Royal Assent. Section 5(2) comes into operation on the day after Royal Assent or the day on which the Electoral Act 2002 comes into operation, whichever is the later day. The remaining provisions of this Act come into operation by proclamation but not later than 1 November 2002.
[3]. Amends section 10 to provide that an appeal by a person aggrieved by a decision of the Juries Commissioner may be made at any time up to the point of empanelment as a juror.
Note: Persons can appeal against the following decisions of the Juries Commissioner, section 7 - deferral of jury service, section 8 - decisions about being excused from jury service, and section 9 - decisions about permanently being excused from jury service. |
[6]. Amends section 31(1) to make the calling out of the names of the jury panel discretionary rather than mandatory. The calling out of the names of persons comprising the panel during the empanelment process (sections 33 and 36) remains unchanged.
[7]. Amends section 47 to allow for majority verdicts in civil trials where the number of jurors has been reduced from six to five. The amendment also enables a judge to discharge a civil jury if the members of the jury have failed to reach a verdict after six hours.
[9]. Amends Schedule 1 to clarify that it is the length of the sentence imposed and not actual time served that determines disqualification to serve on a jury.
[10]. Amends clause 1 to Schedule 2 to clarify the holding of which public law enforcement offices disqualify a person from serving on a jury.
The Committee makes no further comment.
Liquor Control Reform (Packaged Liquor Licences) Bill
Introduced: 15 May 2002
Second Reading Speech: 16 May 2002
House: Legislative Assembly
Minister introducing Bill: Hon. J. Brumby MLA
Portfolio responsibility: Minister for Small Business, Hon. M. Thomson MLC
Purpose
The Bill amends the Liquor Control Reform Act 1998 ("the Act") to -
provide for the misuse or abuse of alcohol to be an additional ground for objection to an application for the grant, variation or relocation of a packaged liquor licence;
define the concept of amenity;
improve the advertising of licence applications;
provide for additional packaged liquor licence conditions;
provide for an industry code of conduct on the retailing of packaged liquor that promotes the objects of the Act;
phase out the 8% limit on packaged liquor licences; and
impose restrictions during the phase-out period on the grant, transfer and relocation of certain packaged liquor licences.
Content and Committee comment
[Clauses]
[2]. The provisions in the Bill (except sections 4(2) and 16) come into operation on Royal Assent. Section 4(2) is deemed to have come into operation on 14 May 2002. Section 16 comes into operation on 1 January 2006.
[4]. Amends section 3 of the Act by expanding the definition of ‘related entity’ for the purposes of the limit on holding packaged liquor licences. The provision is retrospective to 14 May 2002 being the date of the announcement of the measure by the Minister.
The Committee notes the retrospective application of the provision to the date of the announcement by the Minister. The Committee accepts the retrospective provision is appropriate in the circumstances. |
[7]. Amends sections 18A and 23 of the Act by substituting the term "permitted percentage" for "8%" wherever occurring. The permitted percentage is defined in section 3(1) of the Act. This clause, coupled with clause 16, achieves a phase out of the 8% limit on holding packaged liquor licences.
[11]. Amends sections 38 and 40 of the Act. New section 38(1A) which provides that a person may object to the grant, variation or relocation of a packaged liquor licence on the ground that the grant of the application would be conducive to or encourage the misuse or abuse of alcohol.
New section 40(1A) provides that a municipal council may object to the grant, variation or relocation of a packaged liquor licence on the ground that the grant of the application would be conducive to or encourage the misuse or abuse of alcohol.
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 (jurisdiction of the Supreme Court) of the Constitution Act 1975.
[13]. Inserts a new 179A(2) to declare that it is the intention of the current section 26K, as it applies to Division 3A of Part 2 as amended by the Bill to alter or vary section 85 of the Constitution Act 1975.
The Committee notes the comments in the Second Reading Speech –
Section 179A of the Act already states that it is the intention of section 26K to alter or vary section 85 of the Constitution Act 1975. Section 26K provides that no compensation is payable by the State or the Director to any person for any loss or damage as a result of the enactment of Division 3A.
The Bill makes certain amendments to Division 3A, such as replacing the controlling interest provision with a substantial interest provision, redefining 'relevant day' and repealing the director's power to extend the relevant day by 90 days. These amendments are necessary to enable the practical operation of Division 3A, given that the permitted percentage will vary in accordance with the Bill.
The government has a clear commitment to ensure that the percentage limits are complied with during the course of the phase-out. The public has been well informed of this position. The only bodies corporate affected by this division are those that, notwithstanding the government's policy commitment and the intent of the legislation, seek to increase their holdings of packaged liquor licences above the permitted percentage. The proposed amendments ensure compliance with the limits without exposing the State or Director to the risk of compensation claims.
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. |
[16]. Repeals various provisions in the Act the effect of which will abolish the limit on packaged liquor licences. The provision comes into operation on 1 January 2006.
The Committee makes no further comment.
Local Government (Update) Bill
Introduced: 15 May 2002
Second Reading Speech: 16 May 2002
House: Legislative Council
Minister introducing Bill: Hon. J. Madden MLC
Portfolio responsibility: Minister for Local Government, Hon. R. Cameron MLA
Purpose
The Bill amends the Local Government Act 1989 ("the Act") to facilitate recognition of the place of local government, to improve the accountability and transparency of local government, to improve electoral processes and to improve the functioning of local government.
The Bill amends the Constitution Act 1975 to further facilitate the recognition of local government. The Bill also amends the City of Melbourne Act 2001 in regard to matter relating to and consequential to the amendments to the Act. In addition the Bill makes minor consequential amendments to the Docklands Authority Act 1991.
Content and Committee comment
[Clauses]
[2]. Provides that sections 1 and 2 come into operation on the day after Royal Assent. The remaining provisions come into operation on proclamation but not later than on 1 July 2003.
[3]. Provides for the insertion of a Preamble as a new section 1 of the Local Government Act 1989. The Preamble provides for the recognition of local government as a distinct and essential tier of Government that provides for the peace, order and good government of a municipal district and that a Council consists of its democratically elected councillors.
[4]. Inserts a new section 1A into the Act that provides that the provisions of the Act are to be interpreted so as to give effect to the Preamble and the local government charter.
[5]. Inserts a new Part 1A in the Act to include a local government charter that defines the constitution, role, objectives, purposes, functions and powers of Councils.
[6]. Inserts a new section 5B in the Act that provides that a Council must consist of between 5 and 12 Councillors and specifies the three types of electoral structures that apply to a Council.
[10]. Amends section 74A(1) in the Constitution Act 1975 in order to give recognition to local government and safeguard its democratic processes. The clause provides that local government is a distinct and essential tier of government consisting of democratically elected Councils having the functions and powers that the Parliament considers are necessary to ensure the peace, order and good government of each municipal district.
[11]. Amends section 219(1) and provides for the suspension of all the Councillors of a Council by the Governor in Council on the recommendation of the Minister on certain specified grounds and subject to consideration of steps taken by the Council.
[20]. Substitutes new sections 77, 77A and 77B for section 77 of the Act. The new sections deal with confidential information acquired by Councillors, disclosure of direct and indirect pecuniary interests and conflicts of interest by Councillors.
[21]. Substitutes a new section 79 in Act to expand and clarify the existing duty to disclose a pecuniary interest in section 79 to a duty to disclose any conflict of interest, as defined by the new section 77B.
[26]. Amends section 98 to provide that a delegation to a member of Council staff may be made either to a person named in the delegation or to the holder of an office or position specified in legislation. Further all delegations must be reviewed within 12 months following a general election of the Council.
[27]. Amends the City of Melbourne Act 2001 by inserting a new section 25A that empowers the City of Melbourne to delegate certain Councillor related powers to the Lord Mayor.
[31]. Inserts new section 223C (old section 132) concerning offences related to investigations.
[38]. Repeals sections 11(4) and 11(5) to discontinue the requirement for Councils to enrol the occupiers of non-residential property without application.
[35]. Inserts a new section 10A that clarifies the basis on which a person may be entitled to be on the voters roll. It ensures that enrolment is strictly based on an entitlement on entitlement day and, where an application is required it be lodged by entitlement day.
[43]. Inserts a new section 20A in the Act extending silent voter provisions, currently available for State Government voters, to the voters list prepared by the Chief Executive Officer.
[46]. Amends section 28(1) with respect to the qualifications to be a candidate and a Councillor and requires candidates and Councillors to be entitled to be on the voters' roll in accordance with section 10A (clause 35).
[55]. Amends section 40 which deals with the information required to be carried on an infringement notice for failure to vote at an election.
[56]. Amends section 42 and Schedule 3 of the Act to provide for proportional representation to be the standard system for counting votes where 2 or more Councillors are being simultaneously elected to a ward or district. The amendment also provides for a Council to conduct a public consultation process and request the Minister to seek an Order-in-Council to change the vote counting system used at that Council.
[59]. Replaces sections 55 and 56 of the Act with new sections 55 to 56A.
New section 55 replaces existing sections 55(2) and 55(3) and removes the requirement to show the name and address of the printer in the authorisation.
New section 55A replaces the existing sections 55(5) and 55(6) with the addition of a prohibition against producing a representation of a ballot paper that is likely to mislead voters.
New section 55B provides for newspapers to identify an election advertisement with the word "advertisement" in the headline.
New section 55C provides for the authors of any electoral matter to be identified in any newspaper, circular or pamphlet and for letters to the editor in respect of elections to identify the name and suburb of the author.
New section 55D provides that a Council may not produce or distribute electoral matter during the election period except where it is about the election process.
[63]. Inserts a new Division 9 in Part 3 of the Act to provide for the disclosure of campaign donations of $200 or over in Council elections. New section 62B prohibits Councillors accepting anonymous donations for election purposes of over $200.
[67]. Inserts clause 5A in Schedule 3 of the Act to clarify that votes may be counted by electronic means and to provide for regulations to be made in respect to electronic counting.
[68]. Amends clause 8 of Schedule 2 to specify that a candidate who retires after close of nominations will not be refunded the nomination fee.
[69]. Amends clause 9 of Schedule 2 of the Act to specify that, in the event that a candidate dies after the close of nominations and before the close of voting, the election will proceed and the nomination fee will be returned to the candidates' personal representative.
[85]. Inserts a new sub-section (1AA) in section 175 to provide that, where a Council is entitled to be paid costs awarded by a court against the owner of a property in respect of unpaid rates and charges and where those costs have not been paid, the Council may recover the court costs from the new owner of the property together with the actual rates and charges owing.
[89]. Amends section 193 and deals with risk management processes and assessments by Councils engaging in entrepreneurial ventures. If the risk or investment is greater than $500,000 or 5% of rate revenue the Minister’s approval must be obtained. If it exceeds $5 million the Treasurer’s approval must also be obtained.
The Committee makes no further comment.
National Parks (Marine National Parks and Marine Sanctuaries) (No. 2) Bill
Introduced: 15 May 2002
Second Reading Speech: 16 May 2002
House: Legislative Assembly
Minister introducing Bill: Hon. S. Garbutt MLA
Portfolio responsibility: Minister for Conservation and Environment
Purpose
The Bill -
amends the National Parks Act 1975 to provide for marine national parks and marine sanctuaries;
amends the Fisheries Act 1995 to provide for a compensation scheme for the introduction of marine national parks and marine sanctuaries and to make other related amendments to that Act; and
makes consequential amendments to the Extractive Industries Development Act 1995 and the Mineral Resources Development Act 1990.
Content and Committee comment
[Clauses]
[2]. The provisions in the Bill come into operation on 16 November 2002.
Amendments to the National Parks Act 1975
[3]. Amends the definitions in section 3(1) and inserts a new definition of "park" to include any marine national park and any marine sanctuary.
[7]. Inserts new section 21A to enable the Secretary to grant a permit to take, in a marine national park or a marine sanctuary, fish or fishing bait for the purpose of appropriate research, study or investigation. A permit holder must comply with the terms and conditions of the permit. The taking of fish or fishing bait under, and in accordance with, such a permit does not constitute an offence under the Fisheries Act 1995.
[8]. Inserts section 32O to enable the Minister to grant a right of access that the Minister considers is reasonable over French Island Marine National Park to a person who owns land on French Island, and to exempt that person from any regulation affecting the park.
[9]. Inserts a new section 38(2) empowering an authorised officer to direct a person to cease illegal activity in a marine national park or a marine sanctuary.
[10]. Inserts new section 38AA requiring an authorised officer to produce evidence of identification if asked to do so before or at any time during the exercising of the power under section 38(2) in clause 9 above, unless it is unreasonable in the circumstances.
[15]. Inserts new sections 45(7) and (8) creating an offence for a person not to comply with a direction of an authorised officer given under section 38(2) (see clause 9) but provides that a person is not guilty of such an offence if the authorised officer failed to produce identification in accordance with section 38AA (see clause 10).
Strict liability offence
[16]. Inserts a new section 45A(5) prohibiting a person from having in his or her charge or possession in a marine national park or a marine sanctuary a boat carrying priority species. New section 45A(6) makes it a defence in any proceedings for an offence under section 45A(5) if the person charged can prove that the boat was travelling through the marine national park or the marine sanctuary by the shortest practicable route.
The Committee notes the strict liability provision in new section 45A(5) and the defence provided in section 45A(6). The Committee draws attention to the provision. |
Liability of licence holder for acts of employee or person in charge
Section 45D deems that holders of certain categories of fishery licences are also liable for offences that are committed under sections 45A and 45B by any employee of the licence holder or a person in charge of a boat under contract or arrangement with the licence holder while that person is operating within the scope of his or her actual or apparent authority.
The offence does not apply if the licence holder establishes that he or she took reasonable precautions and exercised due diligence to avoid the conduct.
The Committee notes the provision will make a licence holder vicariously liable for the acts of an employee or the acts of a person in charge of a boat under contract or arrangement with the licence holder. The Committee notes that the licence holder has a due diligence defence to a charge under this provision. The Committee draws attention to the provision. |
[18]. Amends the regulation making power in section 48 so that regulations under the Act can apply to marine national parks and marine sanctuaries. It inserts new regulation making heads of power to enable areas of Cape Howe Marine National Park and classes of boats and equipment to be prescribed for the purposes of section 45A(4), and conditions to be prescribed in relation to section 45B and Point Hicks Marine National Park. It also amends the general regulation making power in section 48(a) so that it describes more comprehensively the matters or things which need to be preserved or protected in particular categories of parks, including marine national parks and marine sanctuaries.
The Committee notes the amendments to the regulation making powers made by the clause and considers they are appropriate to the purposes of the Act. |
[19]. Inserts new section 48A providing that the amendments made to the Act by the Bill are not intended to affect native title rights and interests other than where they are affected or are authorised to be affected by or under the Native Title Act 1993 (Clth).
Amendments to the Fisheries Act 1995
Compensation Scheme
[27]. Inserts a new Part 10, which contains sections 164-198 and sets out a compensation scheme for eligible access licence holders and for eligible charter boat operators, which are defined in section 164. Divisions 2-4 specify what the entitlements are in respect of reduced catch, increased fishing operating costs and increased charter boat operating costs. Divisions 5 and 6 provide for a Compensation Assessment Panel (established under Division 8) to determine the amount of any entitlements, and Division 7 provides for a Compensation Appeals Tribunal (established under Division 9) to hear any appeal against a determination of the Panel. Division 10 provides for reports on the condition of particular fisheries.
New section 165(1) provides that, except as provided in Part 10 compensation is not payable by the State of Victoria to a person who is, or has been at any time, the holder of a fishery licence or a general permit under section 49 for any loss, damage or injury whatsoever resulting from or arising out of the enactment of the Bill 2002 or the existence of any marine national park or marine sanctuary created by the operation of the Bill.
New section 165(2) provides that nothing in section 165 prevents any proceeding to recover damages for any loss, damage or injury whatsoever resulting from or arising out of any person negligently or unlawfully exercising, purporting to exercise or failing to exercise any power, duty or authority conferred by or under the Act or under the National Parks Act 1975.
New section 182 allows a person to request the Compensation Appeals Tribunal ("the Tribunal") to review certain determinations in new Divisions 5 and 6.
New sections 184 to 189 deals with the constitution proceedings, meetings and registrar of the Compensation Assessment Panel established for the purposes of the Act.
New sections 190 to 195 establish a Compensation Appeals Tribunal and make provision for it’s meetings, proceedings and registrar.
The Committee notes the Minister’s comments in the Second Reading Speech –
The Government remains firmly committed to significantly increased fisheries enforcement and compliance measures. These will particularly benefit the abalone sector. It therefore reaffirms its commitment in the 2001-02 state budget to providing an additional $14.3 million over four years and $3.4 million each year thereafter. This will enable:
21 new regional field-based fisheries officers to be appointed to achieve an enhanced level of compliance, particularly in relation to abalone theft;
3 strategically located regional investigations officers to be appointed to plan coordinated major, intelligence-based, joint-agency enforcement operations;
the Special Investigations Group to be expanded to include 3 additional intelligence analysts and investigators to concentrate on illegal abalone activities;
a permanent fisheries station to be established between Geelong and Warrnambool; and
a new fisheries patrol vessel to be purchased to strengthen the at-sea compliance capacity on the Gippsland coast.
The Government will work closely with the seafood industry to ensure that this increased enforcement effort is effective and targets the illegal take of priority species.
The additional fisheries enforcement effort will be complemented by 18 new positions for on-ground management and planning of the marine national parks and sanctuaries. These will be located in centres along the Victorian coast from Portland to Mallacoota. An agreement between the Department of Natural Resources and Environment and Parks Victoria will ensure that there is a complementary enforcement effort across the marine environment.
The Government has also initiated discussions with New South Wales over complementary enforcement measures which could be put in place on the state border. These, together with the strong enforcement provision included in the Bill in relation to Cape Howe Marine National Park, will help to reduce abalone poaching in that vicinity.
The Government also reaffirms its previous budget commitment to provide the abalone industry with scientific and technical support to help identify and survey areas of currently under-utilised resource that can help to replace the existing fishing grounds within the parks and sanctuaries.
The Committee notes the submission made by Fitzpatrick Teale, Solicitors, on behalf of the Victorian Abalone Divers Association Inc. to the effect that the compensation scheme introduced by the Bill does not cover compensation for abalone access licence holders. The Committee also notes the Minister’s undertakings in the Second Reading Speech (above) to provide an assistance package to benefit the abalone sector. The Committee notes the compensation scheme proposed by the Bill and notes that the scheme does not apply to abalone access licences. The question whether the compensation scheme and the assistance package announced by the Minister is fair and reasonable is a question for the Parliament to determine. |
[28 and 29]. Make amendments to the Extractive Industries Development Act 1995 and the Mineral Resources Development Act 1990.
The Committee makes no further comment.
Pathology Services Accreditation (Amendment) Bill
Introduced: 15 May 2002
Second Reading Speech: 16 May 2002
House: Legislative Assembly
Minister introducing Bill: Hon. J. Thwaites MLA
Portfolio responsibility: Minister for Health
Purpose
The Bill amends the Pathology Services Accreditation Act 1984 ("the Act") to enable the Pathology Services Accreditation Board ("the Board") to impose limitations or restrictions about the type of pathology testing that may be carried out by an accredited pathology service.
Content and Committee comment
[Clauses]
[2]. The provisions in the Bill come into force on the day after Royal Assent.
[6]. Inserts a new section 17A which empowers the Board to impose limitations or restrictions on the types of tests that a pathology service can perform when either granting, deeming or renewing the accreditation of the service under the Act.
[7]. Amends section 18 of the Act to provide that if in the opinion of the Board a serious breach of a limitation or restriction could be a serious risk to the public health, the Board may suspend or cancel the accreditation of a pathology service.
[8]. Amends section 26 to allow appeals by the proprietor of an accredited pathology service against a decision of the Board to impose limitations and restriction on accreditation.
[10]. Amends section 30(1) to provide that a person who in an accredited pathology service performs a test which it is not permitted to perform is not entitled to recover in any court any fee or charge for or in relation to the performance of the test.
[14]. Amends section 35 to provide that it is an offence for a person to perform or caused to be performed, other than in an accredited pathology service, any test unless that test is permitted by or under the Act to be performed outside an accredited pathology service.
[15]. Amends section 36 to provide that it is an offence to perform a test that is not permitted to be performed in a pathology service because of a limitation or restriction on its accreditation.
[16]. Inserts a transitional provision to provide that the Board may impose any limitation or restriction on an accreditation or deemed accreditation existing at the commencement of the Bill.
The Committee makes no further comment.
Residential Tenancies (Amendment) Bill
Introduced: 14 May 2002
Second Reading Speech: 14 May 2002
House: Legislative Assembly
Minister introducing Bill: Hon. B. Pike MLA
Portfolio responsibility: Minister for Housing
Purpose
The Bill amends the Residential Tenancies Act 1997 ("the Act").
The main features of the Bill are –
in place of the current 90 day notice, a landlord, rooming house owner or caravan park owner will have to give a tenant or resident 120 days notice to vacate without giving a reason.
in place of the current 90 day period a person will need to occupy a site in a caravan park for 60 days before being eligible for protection provided by the Act as a ‘resident’.
introduction of a limit of no more than two rent increases per year and the reduction from 90 days to 60 days notice by the landlord of such a rent increase.
additional criteria which may be considered in determining whether a rent increase is excessive.
a landlord, rooming house owner or caravan park owner will have the right to make an urgent application to the VCAT if a tenant or resident refuses entry to a property, for example where entry is required by a prospective buyer or a lender.
an offence to use the right of suspension of a resident or exclusion of visitors from a residence for serious acts of violence without reasonable grounds.
an offence for a landlord to fail to give a tenant a copy of the completed bond lodgement.
an offence for a landlord to enter a rental property other than in accordance with the Act.
an offence for failure to comply with a monetary or non-monetary order of the VCAT with respect to the operation of the Act.
provisions to update the requirements of landlords and their agents to maintain records of rent payments and to ensure and facilitate electronic payments of rent are sufficiently recorded.
clarification of the exemption from the Act of premises which are ancillary to an educational or training institution.
extension from 28 days to 90 days the period in which an owner of rented property must keep personal documents that are left behind at the end of the tenancy before disposing of them. Removal of the requirement that an owner must advertise their intention to dispose of such documents at the end of 90 days.
Content and Committee comment
[Clauses]
[2]. The Bill comes into operation on proclamation but not later than 1 July 2004.
[4]. Inserts a definition of "temporary crisis accommodation" into section 3 of the Act which is an exempted form of accommodation for the operation of the Act.
[10]. Substitutes a new section 22 into the Act which excludes temporary crisis accommodation (defined in clause 4) from the operation of the Act. (see also clause 60).
[11]. Substitutes section 43(2) with new sub-sections (2), (2A) and (2B) to provide that where the tenant does not pay the rent in person or requests a receipt at the time of making the payment, it will be an offence for the person who receives the payment of rent not to keep a record of that payment until the earlier of 12 months from the date of receiving the payment; or if the tenant requests a copy of the record before the end of 12 months after making the payment, the provision of a copy of the record to the tenant (see also clause 32 applying similar provisions in respect to residents of rooming houses and clause 48 in respect to a resident of a caravan park).
[12]. Makes amendments to section 44 which regulates rent increases in respect of tenancy agreements. The clause reduces the time required to give notice of a rent increase from 90 days to 60 days. The notice must be in prescribed form and also advise the tenant of their right to complain to the Director of Consumer Affairs.
New section 44(4A) provides that a landlord must not increase the rent payable under a tenancy agreement at intervals of less than 6 months (see clause 33 which applies similar provisions in respect to residents of rooming houses and clause 49 in respect to a resident of a caravan park).
[16]. Amends section 68 of the Act to provide that if a landlord owns or controls rented premises and the common areas relating to those rented premises, the landlord must take reasonable steps to ensure that the common areas are maintained in good repair.
[18]. Amends section 86 of the Act to provide that in the case of a first tenancy agreement entered into between a landlord and a tenant, the right of entry to enable inspection of the premises may only be exercised after the end of the first 3 months of the tenancy.
[19]. Inserts new section 91A to create an offence for a landlord to enter rented premises other than in accordance with the provisions of the Act. (see clause 39 applying similar measures in respect to rooming houses and clause 54 in respect to a resident of a caravan park).
[22]. Substitutes a new section 244(3) which provides that a landlord is not entitled to exercise the right to give a tenant a notice to vacate on the basis that the tenant or the tenant's visitor has endangered the safety of occupiers of neighbouring premises, if a notice to leave has been given to the tenant under section 368(1) of the Act. Section 368(1) allows certain residents or their visitors to be given a notice to leave a managed high density building (that is, a building which contains two or more rented premises and which has an on-site manager) immediately, if the manager believes on reasonable grounds that a serious act of violence by the resident or visitor has occurred in the building or that the safety of any person on the managed premises is in danger from the resident or visitor. (see clause 40 applying similar provisions in respect to rooming houses and clause 56 in respect to residents of caravan parks).
[25]. Inserts a new section 262A into the Act which provides that the Director of Housing may give a tenant of the Director a notice to vacate if the rented premises were provided as accommodation for a period of between 14 days and 12 months to persons in crisis as a result of homelessness or impending homelessness (which is referred to as "transitional housing"); and the tenant has unreasonably refused to seek alternative accommodation or has refused a reasonable offer of alternative accommodation. The notice must specify a termination date that is not less than 30 days after the date on which it is given. (see clause 42 applying similar provisions in respect to rooming houses).
[26]. Amends section 263 to extend the minimum notice to vacate rented premises without giving a specific reason from 90 to 120 days. Notice to appeal to the VCAT against such a notice is extended from 28 days to 60 days. (see clause 43 applying similar provisions in respect to rooming houses and clause 58 in respect to residents of a caravan park).
[44]. Amends section 145(b) to provide that even if a written agreement is not entered into by which a person becomes a resident of a caravan park, the person nevertheless becomes a resident if the person occupies, for at least 60 consecutive days, any site in the caravan park as his or her only or main residence. Under former section 145(b), the requirement was occupation for at least 90 consecutive days.
[60]. Amends section 237 of the Act to provide that a tenant who needs to vacate rented premises in order to obtain temporary crisis accommodation may give the reduced periods of notice to vacate referred to in sections 237(1) and (2) of the Act.
[67]. Amends section 380 to extend the period for which the owner of premises is required to take reasonable care of personal documents which have been left behind by a tenant or resident from 28 to 90 days. The clause also repeals the requirement for the owner of premises to advertise in a newspaper the owner's intention to dispose of the tenant's or resident's personal documents after the required retention period has expired.
[71]. Inserts a penalty into section 405(4) which makes it an offence for a landlord to fail to give a copy of a bond lodgement form to a tenant and amends section 406 to provide that if a landlord receives a bond from a tenant, the landlord must give the amount of the bond to the Residential Tenancies Bond Authority together with the completed bond lodgement form within 10 business days after the bond is received.
[78]. Inserts a new section 209A which requires the VCAT to hear an application under section 209 for a compensation and compliance order within 5 business days after the application is made if the application relates to a failure by a tenant or resident to allow a landlord, rooming house owner, caravan park owner, caravan owner or the agent of any of these people to enter the rented premises, room, caravan site or caravan for the purpose of showing the premises, room, site or caravan to a prospective buyer or to a lender who proposes to use the premises, room, site or caravan as security for a loan.
[86]. Inserts a new section 480 which makes it an offence to fail to comply with a determination of the VCAT under the Act whether the determination relates to a monetary order or a non-monetary order.
[93]. Inserts a new section 368A into Act making it an offence for a manager of managed premises to give a notice to leave, or a document purporting to be a notice to leave, where the manager did not, at the relevant time, have reasonable grounds to believe either that a serious act of violence by the resident or visitor had occurred on the rented premises or that the safety of any person on the managed premises was in danger from the resident or visitor.
The Committee makes no further comment.
Sports Event Ticketing (Fair Access) Bill
Introduced: 9 May 2002
Second Reading Speech: 14 May 2002
House: Legislative Assembly
Minister introducing Bill: Hon. J. Pandazopoulos MLA
Portfolio responsibility: Minister for Sport, Hon. J. Madden MLC
Purpose
The purpose of the Bill is to maximise access by members of the public to tickets to certain sports events by -
allowing the Minister to declare certain sports events for the purposes of the Act; and
require the sale and distribution of tickets to declared events to be in accordance with a scheme approved by the Minister, which may involve placing conditions on the sale or distribution of tickets to the event; and
to provide offences for certain breaches of an approved ticket scheme for a declared event or of conditions on the sale or distribution of tickets to the event.
Content and Committee comment
[Clauses]
[2]. The Act comes into operation on the day after Royal Assent.
[4]. Defines "sports event" for the purposes of the proposed Act.
[6]. Provides that if the Minister considers a sports event is major and that it is appropriate to declare the event for the purposes of the proposed Act, the Minister may notify the event organiser, no less than 9 months before the event is to be held, that he or she intends to declare the event. If the Minister declares the event, a copy of the declaration must be published in the Government Gazette.
[7]. Provides the Minister a power to declare an event for the purposes of the Act and [8] allows the Minister to revoke a declaration made under [7].
[9]. Requires the event organiser to give the Minister a ticket scheme proposal within 60 days after receiving notice that the Minister has declared the event. The proposal must comply with the guidelines made under clause 15.
[10]. Permits the Minister to approve or refuse to approve a ticket scheme proposed by an event organiser.
[15]. Requires the Minister to make written guidelines setting out requirements for ticket scheme proposals and approved ticket schemes. Proposed section 15(2) provides some examples of what may be contained in the guidelines. A copy of the guidelines must be published in the Government Gazette and laid before each House of the Parliament within 10 sitting days after Gazettal. Clause 15(2) provides -
(2) The guidelines may, for example, require that an approved ticket scheme for an event -
(a) provide that a specified minimum proportion of tickets to the event must be made available for sale or distribution to the public generally or to particular classes of persons; and
(b) place conditions on the sale or distribution of tickets to the event prohibiting or restricting the sale or distribution of tickets by persons who are not authorised in writing to sell or distribute tickets on behalf of the event organiser; and
(c) require certain information to be printed on tickets to the event (such as information about conditions on the sale or distribution of tickets and offences that may apply if a person breaches such a condition).
The Committee notes that the clause permits guidelines to be made that are to be published in the Government Gazette and tabled in the Parliament but not subject to scrutiny by the Committee or disallowance by the Parliament. The Committee draws attention to the provision. |
[16]. Makes it an offence if the event organiser of a sports event, without reasonable excuse, holds the event, sells tickets to the event or authorises (whether orally or in writing) tickets to the event to be sold or distributed at any time before the approval of the ticketing scheme.
[17]. Provides offences for failing to comply with an approved ticket scheme.
[18]. Makes it an offence for a person to knowingly contravene, without reasonable excuse, a condition that is printed on a ticket to a declared event; and prohibits or restricts the sale or distribution of the ticket by anyone who is not authorised in writing to sell or distribute tickets on the event organiser's behalf.
[19]. Provides that an offence against Part 5 of the proposed Act is an indictable offence (but clause 43 amends the Magistrates' Court Act 1989 to allow these offences to be heard and determined summarily).
[24]. Provides that the Department Head may, with the Minister's written approval, appoint a person as an authorised officer.
[25]. Requires the Department Head to issue an identity card to each authorised officer containing the officer's photograph. The authorised officer must produce the identity card for inspection before exercising a power under Part 6 other than a requirement by post; and at any time during the exercise of such a power if asked to do so.
Search and seizure powers
[26]. Gives authorised officers powers to search premises occupied by the event organiser of a declared event in respect of which there is an approved ticket scheme; or a person who is authorised in writing to sell or distribute tickets to that event on behalf of the event organiser.
The authorised officer can only exercise the powers with the consent of the occupier of the premises and for the purposes of monitoring compliance with the approved ticket scheme or investigating the authorised officer's reasonable belief that a person has contravened the Act.
The clause also enables an authorised officer, with the Department Head's written approval, to apply to a magistrate for the issue of a search warrant for the premises pursuant to the forms and procedures found in the Magistrates’ Court Act 1989.
[27]. Requires an authorised officer to announce, on executing a search warrant, that he or she is authorised by the warrant to enter the premises. However, the authorised officer is not required to do so if immediate entry to the premises is required to ensure the safety of a person or that the effective execution of the search warrant is not frustrated.
An authorised officer is also required to identify himself or herself, and give a copy of the warrant to the occupier or another person at the premises if the occupier is not present; and if asked to do so, allow the occupier or person a reasonable opportunity to arrange for a legal practitioner to be present during the search of the premises.
[28]. Allows an authorised officer to apply to the Magistrates' Court, with the Department Head's written approval, for an order requiring certain persons to answer questions, supply information or produce documents.
[29 to 31]. Deal with seizure, copying and retention of documents and things.
[32]. Provides a protection against self-incrimination. It allows a natural person to refuse or fail to give information or do anything else (other than produce a document) that the person would otherwise be required under the Act to do, if giving the information or doing the thing would tend to incriminate the person.
The Committee notes the clause is a limited self-incrimination privilege. The Committee has previously commented on such provisions which seek to balance the privilege against self-incrimination against the need to obtain information for prosecution purposes. The Committee draws attention to the provision. |
[33]. Provides that it is an offence if a person gives information to an authorised officer that the person knows to be false or misleading in any material particular. Is is also an offence to produce a document that the person knows to be false or misleading without indicating how it is false or misleading and, if practicable, giving correct information.
[34]. Provides that it is an offence for a person to hinder or obstruct an authorised officer who is exercising a power under Part 6 of the proposed Act or for a person who is not an authorised officer to hold himself or herself out to be an authorised officer.
[36]. Provides that a person may complain to the Department Head about the exercise of a power by an authorised officer. The Department Head is required to investigate the complaint and provide a written report to the complainant on the results of the investigation.
[38]. Prohibits an authorised officer from giving anyone information relating to a person's business or personal affairs that is acquired by the authorised officer in carrying out his or her powers under Part 6 (except to the extent that the giving of the information is necessary to carry out those powers). There are specific exemptions to the prohibition such as the giving of information to a court or tribunal in the course of legal proceedings, to facilitate investigations or with the written authority of the Department Head or person to whom the information relates.
[40]. Provides that decisions made by the Minister under clauses 7 (declare an event) or 10 (refuse to approve ticket scheme) may be reviewed by the Victorian Civil and Administrative Tribunal.
[41]. Provides that the Department Head may, in writing, delegate all or any of his or her functions or powers under the proposed Act (other than the power of delegation) to a person employed under Part 3 of the Public Sector Management and Employment Act 1998.
The Committee notes the delegation provision and accepts that it appropriate to give effect to the purposes of the proposed Act. |
[42]. Allows the Governor in Council to make such regulations as are required or permitted by the proposed Act or necessary to give effect to the proposed Act.
The Committee notes the regulation making power provision and accepts that it appropriate to give effect to the purposes of the proposed Act. |
[43]. Amends Schedule 4 to the Magistrates' Court Act 1989 to allow indictable offences under the proposed Act to be heard and determined summarily.
The Committee makes no further comment.
State Taxation Acts (Further Tax Reform) Bill
Introduced: 8 May 2002
Second Reading Speech: 9 May 2002
House: Legislative Assembly
Minister introducing Bill: Hon. J. Brumby MLA
Portfolio responsibility: Treasurer
Purpose
The Bill amends the Duties Act 2000 to bring forward to 1 July 2002 the prospective abolition of duty on unquoted marketable securities, and to increase the thresholds for duty concessions for family first home buyers and concession cardholders.
The Bill also amends the Land Tax Act 1958 by increasing the land tax threshold from the 2003 land tax year. Amendments to the Pay-roll Tax Act 1971 lower the pay-roll tax rate from 1 July 2002 and again from 1 July 2003, and raise the taxation threshold with effect from 1 July 2002.
Content and Committee comment
[Clauses]
[2]. Other than clause 4 all provisions of the Bill come into operation on the day after Royal Assent. Clause 4 comes into operation on 1 July 2002.
Amendments to the Duties Act 2000
The Part brings forward by 12 months the abolition of duty on unquoted marketable securities. Duty on unquoted marketable securities was abolished by the State Taxation Acts (Taxation Reform Implementation) Act 2001, effective from 1 July 2003. The date of abolition is brought forward to 1 July 2002. The Bill also increases the thresholds applying to the exemption from duty and the duty concession available to family first home buyers and pensioners, with effect from 1 July 2002. The income test for families is also removed.
[4]. Contains amendments to the exemptions and concessions from duty available to qualifying pensioner and first home owners.
Amendments to the Land Tax Act 1958
[8]. Amends section 7A to provide that the minimum amount of land tax payable is increased from $125 to $150 from the 2003 land tax year. This is as a result of the raising of the tax-free threshold. The clause raises the current land tax threshold of $125,000, by providing that no land tax is payable by the owner of land if the total unimproved value of land is less than $150,000.
Amendments to the Pay-Roll Tax Act 1971
[9]. Amends section 7(1) of the Pay-roll Tax Act 1971 to reduce the pay-roll tax rate from 5·45% of taxable wages to 5·35% of taxable wages from 1 July 2002. The rate is further reduced from 1 July 2003, from 5·35% of taxable wages to 5·25%. With effect from 1 July 2002, the taxable threshold will be raised from $515,000 to $550,000. This measure was to have taken effect from 1 July 2003.
The Committee makes no further comment.
Tobacco (Miscellaneous Amendments) Bill
Introduced: 9 May 2002
Second Reading Speech:14 May 2002
House: Legislative Assembly
Minister introducing Bill: Hon. J. Thwaites MLA
Portfolio responsibility: Minister for Health
Purpose
The Bill amends the Tobacco Act 1987 ("the Act") to prohibit smoking in places where bingo is played and to limit smoking in licensed premises, gaming venues and the casino.
Content and Committee comment
[Clauses]
[2]. Sections 1, 2, 3, 4(3), 5, 12 and 15 come into operation on the day after Royal Assent. The remaining provisions of the Bill come into operation on 1 September 2002.
[8]. Inserts a new section 5BA which is a re-enactment of the current section 15A. This section has been re-enacted in the new Division 1 of Part 2 to ensure that all the provisions relating to prohibitions on smoking in various areas are located in the same Division.
[9]. Inserts new sections 5E to 5R in the Act.
New section 5F provides that a person must not smoke in a bingo area or bingo centre.
Strict liability offence – bingo centre
New section 5G(1) provides that the occupier of a bingo area or bingo centre is guilty of an offence if smoking occurs in a bingo area or bingo centre in contravention of section 5F.
Defence
5G(2) provides that it is a defence to a prosecution under section 5G(1) if the defendant proves that the defendant did not provide an ashtray, matches, a lighter or any other thing designed to facilitate smoking where the contravention occurred and that the defendant was not aware, and could not reasonably be expected to have been aware, that the contravention was occurring; or the defendant requested the person contravening to stop smoking; and informed the person that the person was committing an offence.
New section 5H provides that the occupier of a bingo area or bingo centre is guilty of an offence if "no smoking" signs are not displayed in accordance with the requirements of the section. The signs must contain certain information and be displayed so that a person is reasonably likely to see one or more of them when entering, or from within, the bingo area or bingo centre.
New section 5I creates an offence such that a person must not smoke in a casino except in a declared smoking area.
Strict liability offence - casino
New section 5J provides that, if smoking occurs in an area of a casino which is not a declared smoking area, the occupier of that area is guilty of an offence.
Defence
An identical defence is provided as in new section 5G above.
New section 5K provides that the occupier of an area of a casino other than a declared smoking area is guilty of an offence if "no smoking" signs are not displayed in accordance with the requirements of the section. The signs must contain certain information and be displayed so that a person is reasonably likely to see one or more of them when entering, or from within, the area of a casino other than a declared smoking area.
New section 5L creates an offence that a person must not smoke in certain areas of an approved venue.
Strict liability offence – gaming room
Section 5M provides that, if smoking occurs in a gaming machine area or gaming room, the occupier of the area or room is guilty of an offence.
Defence
An identical defence is provided as in new section 5G above.
New section 5N provides that the occupier of a gaming machine area or gaming room is guilty of an offence if "no smoking" signs are not displayed in accordance with the requirements of the section. The signs must contain certain information and be displayed so that a person is reasonably likely to see one or more of them when entering, or from within, the gaming machine area or gaming room.
New section 5O requires the occupier of licensed premises that at any time has two or more rooms in operation to designate one of those rooms to be a non-smoking room. It is an offence for the occupier of the licensed premises to fail to do so. Licensed premises include hotels, bars and clubs but not licensed restaurants, cafes or bingo centres.
New section 5P creates an offence such that a person must not smoke in a room that has been designated as a non-smoking room pursuant to section 5O.
Strict liability offences – licensed premises
New section 5Q provides that, if smoking occurs in a designated non-smoking area of a licensed premises, the occupier of the room is guilty of an offence.
Defence
An identical defence is provided as in new section 5G above.
The Committee notes that new sections 5G, 5J, 5M and 5Q create strict liability offences and that appropriate due diligence type defences are provided in each case. The Committee draws attention to the provisions. |
New section 5R provides that the occupier of a designated non-smoking room of a licensed premises is guilty of an offence if "no smoking" signs are not displayed in accordance with the requirements of the section. The signs must contain certain information and be displayed so that a person is reasonably likely to see one or more of them when entering, or from within, the designated non-smoking room.
[11]. Inserts a new section 41A which provides that if an act or omission constitutes more than one offence against the Principal Act, the offender is liable to be prosecuted for any or all of those offences but is not liable to be punished more than once for the same act or omission.
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 (jurisdiction of the Supreme Court) of the Constitution Act 1975.
[13]. Inserts a new section 42B(3) to express the intention of section 42 as it applies after the commencement of clauses 8 and 9 of the Bill to alter or vary section 85 of the Constitution Act 1975.
Section 42 of the Act provides –
An action does not lie against a person for the failure or refusal to do anything that would constitute an offence against this Act.
The Committee notes the comments in the Second Reading Speech –
That clause [13] inserts a new sub-section (3) in section 42B of the Tobacco Act which states that it is the intention of section 42, as it will have effect after the amendments come into force, to alter or vary section 85 of the Constitution Act 1975.
Section 42 of the Tobacco Act provides that an action does not lie against a person for the failure to do anything that would constitute an offence under the Act. This was included in the Act when it was first passed in 1987.
The Bill creates new offences. It is necessary that section 42 apply to those offences in the same way that it applies to existing offences.
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. |
[14]. Amends the Schedule to provide for infringement notices to be issued for offences against various sections of the Act that are inserted by the Bill.
The Committee makes no further comment.
Introduced: 8 May 2002
Second Reading Speech: 9 May 2002
House: Legislative Assembly
Minister introducing Bill: Hon. P. Batchelor MLA
Portfolio responsibility: Minister for Transport
Purpose
The Bill amends the Transport Act 1983 ("the Act") to -
amend the powers of the Director of Public Transport;
provide for the audit of the medical records of safety workers;
implement reforms in the tow truck industry;
remove the public interest test for the issue of small commercial passenger vehicle licences other than taxi-cab licences and provide for licence fees for hire car licences and special purpose vehicle licences, with effect from 9 May 2002;
change the way that taxi fares and tow truck charges are determined;
provide for the Essential Services Commission to investigate and report on licence fees, taxi fares and tow truck charges;
regulate the installation and use of security cameras in taxis;
allow for the accreditation of taxi depots, dispatch networks and taxi operators and drivers; and
strengthen enforcement provisions by providing for verification of names and addresses of suspected offenders.
The Bill amends the Essential Services Commission Act 2001 to confer further transport-related functions on the Essential Services Commission.
The Bill also amends the Melbourne City Link (Further Miscellaneous Amendments) Act 2002 in relation to the backdating of temporary registration.
Content and Committee comment
[Clauses]
[2]. The provisions in the Bill except clauses 6(1), 9, 17 and 24, come into operation on the day after Royal Assent.
Section 24 is deemed to have come into operation on 2 October 2001. Sections 6(1) and 9 are deemed to have come into operation on 9 May 2002. Section 17 comes into operation on a day to be proclaimed but not later than by 30 June 2003.
In respect to the retrospective amendments made by the Bill by clauses 24, 6(1) and 9 the Committee notes the following comments in the explanatory memorandum under clause 2 and 9 –
The Committee accepts that the retrospective application of these provisions are appropriate and raise no issue of an undue trespass to rights and freedoms. |
[5]. Inserts new sections 9A to 9J in the Act.
Power to acquire land - New section 9A provides the Director with the power to purchase or compulsorily acquire land and related easements required in connection with the performance of the Director's powers. New section 9A(2) provides that the Land Acquisition and Compensation Act 1986 applies to the provisions in the Bill.
Power to order removal of obstructing trees - New section 9C provides the Director with the ability, on behalf of the Crown, to require the owner or occupier of any land to clear or remove any trees or wood on that land which is within 60 metres of a railway track operated or maintained by the Director on behalf of the Crown which may obstruct railway track.
No duty to fence - New section 9D provides that the Director and the Crown are not required to fence any portion of a railway or tramway and are not liable for any damage that may be caused due to the railway/tramway not being fenced.
[6]. Inserts certain definitions in the Act. The retrospective amendments (see clause 2) are for ‘hire car licence’ and for ‘special purpose vehicle licence’.
[7]. Inserts a new section 129VA into the Act providing the Secretary, or an inspector, with the ability to conduct an audit of any medical records of persons employed to perform railway safety work held by accredited companies or contractors. The section defines an "audit" and "railway safety work" and provides that regulations may be made to establish procedures for the conduct of audits.
[9]. Substitutes a new section 142 in the Act which removes the public interest test for granting a licence for a hire car or special purpose vehicle if the licence application is made on or after 9 May 2002. The new section provides that the licensing authority may grant a hire car or a special purpose vehicle licence if satisfied that the applicant is a fit and proper person and the licence is consistent with any determination of policy made by the Minister under section 89.
A licence fee must be paid for a hire car or special purpose vehicle licence granted on or after 9 May 2002, the date the provision was announced publicly. This provision is intended to ensure that there is no time gap between the date of public announcement of the licence fee and the day that the provision comes into operation, during which persons could lodge applications prior to the introduction of the licence fee. The licence fee is not payable if the application for the licence was made before 9 May 2002. If the application was made on or after 9 May 2002 and the licence is granted before the Bill receives Royal Assent, the licence fee is not payable until after Royal Assent. Sub-section (8) ensures that the public interest test currently in section 143 of the Transport Act 1983 will not apply to hire car or special purpose vehicle licence applications made on or after 9 May 2002. This sub-section is necessary as the amendments to section 143 made by clause 10 of the Bill will only take effect on the day after the Bill receives Royal Assent.
[10]. Amends section 144(2)(d)(i) so that the Minister, rather than the Secretary, will determine taxi fares. A new licence condition, requiring late night fare surcharges to be paid wholly to the taxi driver, is also inserted.
The clause also inserts a number of additional implied taxi-cab licence conditions. Section 144(3) provides that wireless transmission and audio-recording equipment must not be installed in taxi-cabs and section 144(4) imposes maximum penalties of 10 and 20 penalty units for a first and second offence respectively for breach of these conditions.
[13]. Inserts new sections 158B and 158C into the Act.
New section 158B(1) provides that it is an offence for a person to download or print an image or data obtained from the use of security cameras installed in taxi-cabs, unless that person is employed by the Department of Infrastructure and is acting in accordance with written authorisation, or has in place an agreement with the Secretary of the Department for the downloading of images obtained from surveillance cameras installed in taxi-cabs. Section 158B(2) provides that it is an offence for a person to possess, publish, transmit or disclose an image or other data obtained from the use of a security camera installed in a taxi-cab; or to transmit images or data directly from a security camera installed in the taxi-cab, unless that person is acting with the written authorisation of the Secretary and the regulations. Police will be exempt from these provisions while engaged in law enforcement work.
New section 158B(4) provides that it is an offence to make an audio-recording of a person travelling in a taxi-cab and 158B(5) provides that the section does not apply to an audio recording resulting from the operation of an emergency warning device.
New section 158C provides the Secretary with the authority to make agreements with persons in relation to the downloading or printing of images or other data obtained from the use of security cameras installed in a taxi-cab. The proposed section also provides that the Information Privacy Act 2000 applies to the person with whom the agreement is made and that an agreement under this section must provide for the person to be bound by the Information Privacy Principles and any applicable code of practice under the legislation.
Regulations
[14]. Amends the regulation making powers in section 162 of the Act to enable regulations to be made relating to the installation of security cameras in taxi-cabs and the downloading, printing, possession, publication, transmission and disclosure of images and other data obtained from security cameras installed in taxi-cabs. The clause also provides for regulations to be made under section 162 governing the accreditation of taxi depots and communication networks receiving bookings on behalf of taxi-cabs, in addition to the accreditation of taxi-cab licensees and taxi-cab drivers.
| The Committee notes the amendments made to the regulation making powers and accepts that they are appropriate to give effect to the purposes of the Act. |
[18]. Inserts a new section 183D to provide police with the power to direct certain persons to leave the immediate vicinity of an accident if it is believed that there is unwarranted obstruction to traffic or salvage operations. A definition of the term "immediate vicinity" is included (being an area within a 500 metre radius of the approximate place of the accident).
[20]. Inserts Division 9 into Part VI concerning Commission investigations.
New section 186 provides that the Minister for Transport may refer a matter relating to licence fees for hire cars or special purpose vehicles, taxi-cab fares or tow truck charges to the Essential Services Commission ("the Commission") for investigation.
New section 187 provides the Commission with the power to conduct an investigation in any matter it considers appropriate, stating that it is not bound by rules of evidence and may receive written submissions or statements.
New section 188 provides that the objectives of the Commission under the Essential Services Commission Act 2001 do not apply to the functions and powers of the Commission under Division 9 of Part VI of the Act.
New section 189 provides the Commission with specified powers in carrying out an investigation, including the ability to serve a summons on a person to provide specified information/documents and to appear before the Commission to give evidence. The section provides a number of offences for disobeying a summons or giving false or misleading information to the Commission or threatening, intimidating or coercing another person because that person assisted the Commission with its investigation.
No civil proceedings lie against person for giving statement
New section 189(7) provides that civil proceedings do not lie against a person in respect of loss, damage or injury of any kind suffered by another person because of the making in good faith of a statement, or the giving in good faith of a document or information to the Commission in connection with an investigation under the Division. The protection applies whether or not an oral statement is made or a written document or information provided in connection with a written submission or public hearing. [Refer to section 85 Constitution Act 1975 statement at clause 22].
Request for further evidence of correctness of name and address
[21]. Inserts a number of new sub-sections ((6A) to (6D)) into section 218B of Act.
New sub-section (6A) provides that, where an authorised officer suspects that a person has provided a false name and address the officer may request the person to provide evidence of the correctness of the name and address.
New sub-section (6B) renders it an offence not to comply with a request under sub-section (6A). However, sub-section (6C) states that it is not an offence if the authorised officer did not inform the person that it was an offence not to comply with the request.
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 (jurisdiction of the Supreme Court) of the Constitution Act 1975
[22]. Inserts a new section 255E into Part VIII of the Act providing that the new section 189(7), inserted by clause 20, is intended to alter section 85 of the Constitution Act 1975 by limiting the jurisdiction of the Supreme Court.
The Committee notes the comments in the Second Reading Speech –
The combined effect of proposed sections 255E and 189(7) is to confer an immunity on persons as a consequence of their making of a statement or giving of a document or information to the Essential Services Commission in good faith, in connection with an investigation under Division 9 of Part VI of the Transport Act. The protection applies whether or not an oral statement is made or a written document or information provided in connection with a written submission or public hearing. These provisions have the same effect as the equivalent provision in section 63 of the Essential Services Commission Act 2001, which was inserted to cover section 51(7) of that Act.
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 under Division 9 of Part VI of the Transport Act, 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 Essential Services Commission, and thus enhance the quality of its reports.
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. |
[24]. Makes a number of minor miscellaneous statute law revision amendments to the Transport (Further Amendment) Act 2001.
[26]. Substitutes a new section 12 of the Melbourne City Link (Further Miscellaneous Amendments) Act 2002. Proposed section 12 will insert new sub-sections (2A) and (2B) into section 73C of the Melbourne City Link Act 1995 to allow for the backdating of a temporary registration. The effect of this amendment is that a person may seek registration within 3 calendar days after the day of first travel. Sub-section (2B) will allow a person to apply for registration for a specified period (other than a 24 hour period) within that specified period or within the 2 days immediately following the specified period (but not later than 6 days after the beginning of that specified period) and have that registration back-dated to a time not earlier than the beginning of that specified period.
The Committee makes no further comment.
Travel Agents (Amendment) Bill
Introduced: 8 May 2002
Second Reading Speech: 9 May 2002
House: Legislative Assembly
Minister introducing Bill: Hon. C. Campbell MLA
Portfolio responsibility: Minister for Consumer Affairs
Purpose
The Bill amends the Travel Agents Act 1986 ("the Act") to enable the compensation scheme trustees to sue and be sued in the name of the Travel Compensation Fund and to vary the process for the review by the Victorian Civil and Administrative Tribunal ("VCAT") of decisions of the trustees of the Travel Compensation Fund relating to the payment of compensation.
Content and Committee comment
[Clauses]
[2]. Other than sections 5 and 7 the provisions in the Bill come into operation on the day after Royal Assent. Sections 5 and 7 commence on a day to be proclaimed but not later than 1 July 2004.
[3]. Inserts a definition of "trust deed" in the Act to mean the trust deed of 12 December 1986 (as amended from time to time). This trust deed established a compensation scheme that is the approved compensation scheme for the purposes of the Act.
[4]. Inserts new section 45A in the Act to provide that the compensation scheme trustees may sue and be sued in the name of the "Travel Compensation Fund".
[5]. Inserts a new section 46AA in the Act to provide for a new appeal scheme providing that a person whose interests are affected by a decision of the compensation scheme trustees relating to the payment of compensation under clause 15.1 of the trust deed may apply to the VCAT for a review of that decision. Currently an appeal is determined by an Appeal Committee established under the trust deed. The clause also provides for the time within which review can be sought under the new scheme.
The Committee makes no further comment.
Utility Meters (Metrological Controls) Bill
Introduced: 14 May 2002
Second Reading Speech: 16 May 2002
House: Legislative Assembly
Minister introducing Bill: Hon. S. Garbutt MLA
Portfolio responsibility: Minister for Environment and Conservation
Purpose
The Bill enacts trade measurement legislation in respect of utility meters in Victoria to -
provide for a scheme similar to the National Model Uniform Trade Measurement Legislation to apply to utility meters used for trade;
enable the scheme to be applied to utility meters used in the gas, electricity and the water industries from a relevant prescribed date;
provide for transitional arrangements in respect of existing and new utility meters;
provide for the Director, Trade Measurement Victoria to be the administering authority and the licensing authority;
provides for verification of utility meters in specified cases and for re-verification and certification of all utility meters;
provide for the granting of servicing licences;
provide for the enforcement of the Act, including the appointment and powers of inspectors and the issue of infringement notices;
enable the making of codes of conduct and provides for the approval of codes of conduct operating under existing arrangements;
empower the making of regulations for the purposes of the Act; and
make consequential amendments to the Water Act 1989.
Content and Committee comment
[Clauses]
[2]. The Act will commence on proclamation but not later than 1 January 2003.
[3]. Provides definitions. ‘Utility meter’ means a measuring instrument that is a gas, electricity, or water meter. The regulations may exempt certain classes of utility meters.
[10]. Prohibits the use of a utility meter for trade unless it bears an inspector's mark or a licensee's mark.
[11]. Creates the following offences - using for trade a utility meter that is incorrect; using a utility meter for trade in a manner that is unjust and; causing a utility meter in use for trade to give an incorrect reading.
[12]. Creates the offence of supplying a utility meter that is incorrect or not of an approved pattern.
[20]. Requires an inspector who rejects a utility meter to obliterate any inspector's mark or licensee's mark on it.
[33]. Requires payment by a licensee of a periodic licence fee.
[36]. Empowers the licensing authority to order that specified persons not be employed to certify utility meters on the grounds of the person's lack of competency or fitness.
[37]. Specifies the grounds for disciplinary action against a licensee and [39] provides for the disciplinary actions the authority can take.
[40]. Provides for the review by the Victorian Civil and Administrative Tribunal ("VCAT") of various decisions of the licensing authority.
Search and entry powers
[41]. Provides that the administering authority must issue a certificate of authority to each inspector and [42] requires an inspector to produce the inspector's certificate of authority, on request, in the course of exercising or proposing to exercise a function under the Act.
[43]. Provides for the general powers of entry and inspection by inspectors with the consent of the occupier and [44] provides that an inspector may apply to a magistrate for a search warrant under certain circumstances, and outlines the conditions and requirements that will apply pursuant to the practices and procedures in the Magistrates’ Court Act 1989.
[45]. Provides for the powers of inspectors in relation to the examination and testing of utility meters and to require a person in the building or place where the utility meter is found to answer questions, or produce records, concerning the utility meter or its use.
[47]. Creates offences of hindering, assaulting, impersonating, or failing to comply with a lawful requirement made by an inspector.
[48]. Protection against self-incrimination
(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 modification of the privilege against self-incrimination concerning the production of documents. The Committee accepts that the modification strikes an appropriate balance between the need to obtain information for prosecution purposes and the preservation of the privilege. The Committee draws attention to the provision. |
[51]. Provides that any person may complain to the administering authority about the exercise of a power by an inspector and requires the administering authority to investigate any such complaint.
[52]. Provides for confidentiality of information obtained by an inspector and the circumstances in which this does not apply.
[53 to 58]. Deal with the form, issue and service of orders, notices and infringement notices.
[62]. Empowers the court which convicts a person of an offence to award compensation to a person who has suffered pecuniary loss.
Vicarious liability
[63]. Makes the employer guilty of the same offence committed by an employee unless the employer had no knowledge of the contravention and could not have prevented the contravention. The section provides -
(1) If an employee contravenes any provision of this Act or the regulations, the employer is deemed to have contravened the same provision (whether or not the employee contravened the provision without the employer's authority or contrary to the employer's orders or instructions).
(2) It is a defence in proceedings against an employer for such a contravention if it is established -
(a) that the employer had no knowledge of the contravention; and
(b) that the employer could not, by the exercise of due diligence, have prevented the contravention.
The Committee notes that the provision makes an employer vicariously liable for the contravention of the Act or regulations by an employee. The provision also provides a defence in section 63(2) to a charge under section 63(1). The Committee accepts that the provision places a reasonable onus on employers for the actions of their employees. |
[69]. Protects a person from being liable for an offence under the Act if the person has been convicted or found to have committed an offence under another law for the same act or omission.
[70]. Provides that the administering authority may make and approve codes of conduct and documents the process in which approval is given.
70. Codes of Conduct
(1) The administering authority may make and approve Codes of Conduct for the purposes of this Act.
(2) The administering authority may adopt and approve a Code of Conduct which -
(a) applies in respect of utility meters used for trade in an industry; and
(b) is in force on the relevant prescribed date for that industry.
(3) A Code of Conduct approved under sub-section (2) is to continue in force for the period that it is approved.
(4) The administering authority must publish a Code of Conduct approved under this section in the Government Gazette.
(5) A Code of Conduct approved under sub-section (1) must not be inconsistent with this Act or the regulations.
(6) A Code of Conduct approved under sub-section (2) is to be given effect to despite any inconsistency with this Act or the regulations.
(7) If a Code of Conduct approved under this section applies, compliance with the Code of Conduct is to be taken to be compliance with the relevant requirements under this Act or the regulations or of any licence or condition of a licence.
Parliamentary Committees Act 1968 – Section 4D(a)(iv) – inappropriate delegation of legislative power. The Committee notes that the section appears to permit the enforcement of a code of conduct which is inconsistent with the Act and/ or the regulations. |
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The Committee will seek further advice from the Minister concerning the reason for including such a provision. |
[72]. Provides that other fees and charges may be prescribed in regulations for the purposes of the Act.
[74]. Provides that the Governor in Council may make regulations and specifies the matters for which regulations can be made.
The Committee notes the regulation making powers provided by clauses 72 and 74 and accepts that they are appropriate to give effect to the purposes of the Act. |
The Committee makes no further comment.
Victorian Civil and Administrative Tribunal (Planning Proceedings) Bill
Introduced: 9 May 2002
Second Reading Speech: 14 May 2002
House: Legislative Assembly
Minister introducing Bill: Hon. R. Hulls MLA
Portfolio responsibility: Attorney-General
Purpose
The Bill amends the Victorian Civil and Administrative Tribunal Act 1998 ("the Act") in relation to the constitution of the Tribunal for the purposes of the proceedings under a planning enactment; and validates certain things done by the Tribunal.
Content and Committee comment
[Clauses]
[2]. The amendments made by the Bill come into operation on Royal Assent.
[3]. Inserts a new section 162 into the Act to validate anything done or purported to be done under the Act or a planning enactment by the Tribunal before the commencement of the Bill as if clause 4 of the Bill had been in operation at that time.
Note: The recent decision of the Supreme Court in The Warehouse Group v Bevendale (No. 8757 of 2001) has cast doubt on whether the Tribunal was validly constituted in relation to certain proceedings. In that case the appellant argued that VCAT was not properly constituted when it made the decision under appeal. The basis for the argument was that the member, while otherwise possessing extensive qualifications and experience in the law relating to planning, did not possess practical experience as a planner. The Act required that the Tribunal be constituted by a member who possess ‘sound knowledge of, and experience in, planning or environmental practice in Victoria’ when hearing planning matters. |
[4]. Amends clause 52 of Schedule 1 of the Act by inserting a new sub-clause (1). This sub-clause sets out the requirements for the constitution of the Tribunal for the purposes of a proceeding under a planning enactment. If the Tribunal is constituted by a single member, that member must possess either, sound knowledge of and experience in planning or environmental law, or sound knowledge of and experience in planning or environmental practice. If the Tribunal is constituted by 2 members, at least one member must have the same qualifications as a single member sitting alone. If the Tribunal is constituted by 3, 4, or 5 members, at least 2 members must have the same qualifications as a single member sitting alone.
The Committee makes no further comment.
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Scrutiny of Acts and Regulations Committee Last
Updated 28/5/2002 |