Agricultural Industry Development (Further Amendment) Bill
Introduced: 5 June 2002
Second Reading Speech: 6 June 2002
House: Legislative Assembly
Minister introducing Bill: Hon. K. Hamilton MLA
Portfolio responsibility: Minister for Agriculture
Purpose
The Bill amends the Agricultural Industry Development Act 1990 ("the Act") to provide for the extraterritorial operation of certain declared agricultural commodity market development and research committees ("committees") by amending the Act to make provision –
The Bill has been developed to implement the recommendations of the National Competition Policy review of the Murray Valley Citrus Marketing Act 1989. However the Bill has been drafted in a manner so that –
The Committee notes the comments in the Second Reading Speech –
The proposal to reconstitute the two current citrus boards as a single entity in one State with extraterritorial operation in the production area of the other State represents a significant step forward in interstate cooperation to achieve administrative efficiencies and deliver cost savings to both government and industry.
Legal advice to both the Victorian and New South Wales governments confirmed that State Parliaments have legislative power to make laws of extraterritorial operation and that complementary legislative provisions are needed in both jurisdictions permitting the relevant government to consent to the formation of a committee with extraterritorial application and creating a mechanism for the government to give such consents.
Content and Committee comment
[Clauses]
[2]. Sections 1 to 3, 8, 9, 11 to 13, 16 and 18 come into operation on the day after Royal Assent. Other than sections 20 and 21 the remaining provisions come into operation on a day or days to be proclaimed but not later than 1 July 2003. If sections 20 and 21 do not come into operation on or before 1 July 2004, those sections come into operation on that day.
[4]. Amends section 1(a) of the Act to insert new purposes of the Act to reflect that it will provide for –
[6]. Inserts new sections 3A and 3B of the Act. Proposed new section 3A provides that the Principal Act applies both within and outside Victoria to the full extent of the extraterritorial legislative power of the Parliament and proposed new section 3B provides that the Act binds the Crown in right of Victoria and, as far as the legislative power of the Parliament permits, the Crown in all its other capacities.
[8]. Amends section 18 of the Act to allow an Order to provide that authorised officers can only exercise the powers relating to search and entry which are specified in the Order. This allows an Order to limit search and entry powers to those required to administer the Order rather than authorised officers automatically receiving the powers specified in section 18(1)(a) of the Act.
[10]. Inserts a new Division 3 in Part 2 of the Act comprising new sections 19A to 19D.
Proposed new section 19A provides for the Governor in Council, on the recommendation of the Minister, to declare by Order another State or Territory to be a participating jurisdiction for the purposes of the Act; and an Act, Order, regulation or other instrument of another State or Territory which relates to agricultural industry development to be corresponding agricultural industry development legislation for the purposes of the Act.
Proposed new section 19D provides for the disallowance of an Order in Council made under section 19A or 19C of the Act.
Search and seizure powers
[11]. Amends section 50(3) of the Act to require an authorised officer to produce his or her certificate of identification before exercising a power, in addition to when he or she is requested to do so.
[12]. Amends section 51 of the Act to provide that an authorised officer can only enter and search premises under that section with the consent of the occupier. If consent of the occupier is not provided, an authorised officer must obtain a search warrant under proposed new section 51A.
[13]. Inserts proposed new sections 51A, 51B and 51C in the Act. New section 51A provides for applications for search warrants and proposed sections 51B and 51C set out the requirements for executing search warrants pursuant to the provisions in the Magistrates’ Court Act 1989.
[16]. Inserts new section 58A in the Act creating offences for false or misleading information in relation to a poll.
[19]. Repeals the Murray Valley Citrus Marketing Act 1989.
The Committee makes no further comment.
Forests Legislation (Amendment) Bill
Introduced: 4 June 2002
Second Reading Speech: 5 June 2002
House: Legislative Council
Member introducing Bill: Hon. C. A. Furletti MLC
Private Members Bill
Purpose
The Bill amends the Forests Act 1958 to secure the obligations of the State to provide long-term stability of forests and forest industries under regional forest agreements entered into with the Commonwealth. The Bill also amends the Conservation, Forests and Lands Act 1987 to provide for the protection of forest operations, persons engaged in such operations, increased public safety with regard to forest operations and to clarify what constitutes a properly authorised forest operation.
Content and Committee comment
[Clauses]
[2]. The provisions in the Bill come into operation on the day after Royal Assent or on 1 January 2003 whichever is the later day.
[4]. Inserts new section 52BA in the Forests Act 1958 dealing with changes in land available for timber production providing that any area of state forest available for timber harvesting under the regional forest agreements which is removed must be replaced with a comparable area of state Forest and in doing so the minister must take into account sustainable yield rates of timber in the replacement area and the volume, species and quality of that timber.
The clause also defines ‘regional forest agreement’ in similar terms to the Commonwealth’s Regional Forest Agreement Act 2002.
[5]. Amends section 52D and provides that consultation must take place between the State and Commonwealth Ministers responsible for forestry matters before a review of sustainable yield rates is undertaken and further ensures that any proposed review of sustainable yield rates be publicised well in advance of any such review being undertaken.
[7]. Amends section 95A of the Conservation, Forests and Lands Act 1997 to provide that a person must not hinder or obstruct another person in the carrying out of forest operations authorised under the Forests Act 1958; or the carrying out of forest operations authorised under the Forests Act 1958.
[8]. Inserts new sections 95B, 95C and 95D in the Conservation, Forests and Lands Act 1997.
New section 95B provides that the Secretary of the Department of Natural Resources and Environment ("the Secretary") may declare in writing an area of Crown land that is being, or is intended to be, used for forest operations including any adjoining buffer area to be a safe working zone for the purposes of the Act. 95B(2) and (3) provides for the matters the Secretary must take into account before declaring a zone and the time during which the declaration of the zone is operative.
New 95B(4) provides that a declaration of a safe working zone must be published in the Government Gazette and in a newspaper circulating in the region where the zone is located as soon as practicable after the declaration of the zone, but the fact that a declaration has not been published shall not be a defence to an action brought against a person for a failure to comply with the provisions of section 95C.
Parliamentary Committees Act 1968, Section 4D(a)(i) – Undue trespass to rights and freedoms – Absolute liability offence Proposed new sections 95C(1) and 95B(4) appear to create an offence of absolute liability. That is, an offence where there is no fault element for any of the physical elements of the offence (enter or remain on land in a safe working zone) and an offence where a defence of mistaken fact (failure to publish declaration or failure to post signs) is unavailable. The Committee notes that proof of a guilty mind (mens rea) is a normal requirement to constitute criminal conduct. It would appear to the Committee that a person entering a zone declared by the Secretary under 95B without such a zone being gazetted or advertised or where inadequate or no signage exists, commits an offence of absolute liability. The Committee will seek further advice from the Member as to why a declaration by the Secretary should be sufficient to found liability and why defences to an offence under proposed section 95C(1) are not mentioned in the proposed legislation. Parliamentary Committees Act 1968, Section 4D(a)(ii) – makes rights, freedoms or obligations dependent upon Insufficiently defined administrative powers Proposed new section 95B(1) will permit the Secretary to declare safe working zones constituted by an area of Crown land to be used for forest operations including any ‘adjoining buffer area’. The concept of ‘adjoining buffer area’ is not defined for the purposes of the Bill. Other than the matters the Secretary must take into account pursuant to 95B(2) the provision will enable the Secretary to declare in his or her absolute discretion an undefined and unlimited area of Crown land for the purposes of excluding persons (other than prescribed persons) from those areas. The Committee notes that penalties of up to $5000 are provided in proposed section 95C for prohibited entry to safe working zones. The Committee will write to the Member to seek further information concerning the need to use a provision that appears to be insufficiently defined as an administrative power exercisable by the Secretary. Parliamentary Committees Act 1968, Section 4D(a)(iii) – makes rights, freedoms or obligations dependent upon non-reviewable administrative decisions The Committee notes that there is no appeal provision against an unreasonable exercise of the discretion vested in the Secretary to declare a safe working zone including a ‘safe buffer area’ in proposed section 95B. The Committee will write to the Member to seek advice as to why a merits review provision is not included in the Bill. |
New section 95C which creates the offences of unauthorised entry and remaining in a safe working zone and of inciting or encouraging people to do so.
The clause also provides for the secretary to give authority to classes of prescribed persons to enter upon and remain in safe working zones and in addition, to authorise people to enter and remain in those zones on a short-term or temporary basis.
New section 95D makes it an offence for a person to alter, damage or interfere with the signage required to be erected pursuant to section 95B(5).
The Committee makes no further comment.
Introduced: 11 June 2002
Second Reading Speech: 12 June 2002
House: Legislative Council
Member introducing Bill: The Hon. P. R. Hall MLC
Private Members Bill
Purpose
The Bill provides protection to volunteers carrying out community work from personal liability for certain acts or omissions, causing injury, loss or damage.
Content and Committee comment
[Clauses]
[2]. The provisions in the Bill come into operation on proclamation but not later than by 31 December 2002.
[3]. Provides definitions including "community work" and "volunteer".
[4]. Provides that no proceeding may be brought against a volunteer to recover damages in respect of any injury, loss or damage whatsoever resulting from or arising out of any negligent act or omission, trespass, nuisance or breach of statutory duty that is done, made or committed by the volunteer after the commencement of this Act and that arises out of or in the course of community work being carried out by the volunteer.
This limitation does not extend to any proceeding brought under certain specified Acts and in respect of an injury, loss or damage resulting from or arising out of conduct that constitutes an offence on the part of the volunteer; or conduct engaged in by the volunteer with a conscious or flagrant indifference to the rights or safety of the person who suffered the injury, loss or damage, or the use of any aircraft.
Nothing in the Bill affects any vicarious liability that a person or body may have for the conduct of a volunteer.
Report to the Parliament pursuant to section 4D(b)(i) and (ii) of the Parliamentary Committees Act 1968 concerning a repeal alteration or variation of section 85 of the Constitution Act 1975 (limitation of the jurisdiction of the Supreme Court).
[5]. Declares that it is the intention of clause 4 (above) to alter or vary section 85 of the Constitution Act 1975.
The Committee notes the section 85 statement in the Member’s Second Reading Speech –
It is the intention of section 4 to preclude civil actions in the Supreme Court whereby damages may be sought for the consequences of those events set out in the section. The reason for limiting the jurisdiction of the Supreme Court with respect to these matters is to ensure the application of the immunity which is created under the terms of the Bill.
Parliamentary Committees Act 1968, Section 4D(a)(i) – Undue trespass to rights and freedoms The Committee has examined the section 85 provision in clauses 4 and 5 providing an immunity against civil proceedings that are currently available to persons injured by the negligent actions of a volunteer. The Committee notes that the Bill preserves any vicarious liability that a person may have for the conduct of a volunteer. The Committee will write to the Member for further advice justifying the removal of an existing civil remedy available against negligent volunteers. Pending further advice from the Member the Committee is unable to say whether the section 85 provision is appropriate and desirable in all the circumstances. |
[6]. The Governor in Council may make regulations for or with respect to prescribing work or a class of work to be community work; exempting from the operation of the Act work or a class of work that is community work under the definition of "community work"; and generally prescribing any other matter or thing required or permitted by the Act to be prescribed or necessary to be prescribed to give effect to the Act.
The Committee makes no further comment.
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Scrutiny of Acts and Regulations Committee Last
Updated 12/9/2002 |