| Commissioner for Ecologically
Sustainable Development Bill
Introduced: 12 September 2002
Second Reading Speech: 12 September 2002
House: Legislative Assembly
Minister introducing Bill: Hon. S. Garbutt MLA
Portfolio responsibility: Minister for Environment and Conservation
Purpose
The Bill provides for the appointment of the Commissioner for
Ecologically Sustainable Development ("the Commissioner").
Content and Committee comment
[Clauses]
[2]. 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 1
March 2003.
[6 to 10]. Provides for the appointment of the Commissioner and sets
out the objectives functions and powers of the Commissioner. [11 to 13]. Provides for the
appointment of an Acting Commissioner, staff and consultants of the Commission.
[14]. Provides for the Commissioner to delegate his or her functions or
powers under the Bill, other than the power of delegation, to staff of the Commissioner
employed under the Public Sector Management and Employment Act 1998.
The Committee notes the
delegation power and considers the delegation is sufficiently defined for the purposes of
the Act. |
[17]. Requires the Commissioner to prepare and submit to the Minister a
periodical report on the State of the Environment of Victoria.
[20]. Allows the Commissioner to publish statements and guidelines
relating to the performance of the functions and the exercise of powers of the
Commissioner.
[21]. Requires the Commissioner to ensure that copies of certain
documents are laid before each House of Parliament and that any statements and guidelines
are publicly available and published on the Internet.
The Committee makes no further comment.
Constitution (Parliamentary Reform)
Bill
Introduced: 12 September 2002
Second Reading Speech: 12 September 2002
House: Legislative Assembly
Minister introducing Bill: Hon. S. Bracks MLA
Portfolio responsibility: Premier
Purpose
The Bill amends the Constitution Act 1975 ("the Act")
to –
- recognise the principle of Government mandate;
provide for the constitutional entrenchment of certain legislative provisions;
provide for a fixed four year parliamentary term;
re-constitute the Legislative Council ("the Council") to consist of 40
Members, elected from 8 regions each region returning 5 Members;
provide for the filling of casual vacancies in the Council;
remove the ability of the Council to block supply (Annual Appropriation) Bills;
establish a dispute resolution process for deadlocked Bills; and
provide for proportional representation with optional preferential voting for the
Council.
Content and Committee
comment
[Clauses]
[2]. Part 1 comes into operation on the day on which this Act receives
the Royal Assent. Division 3 of Part 2 (fixed 4 year terms) comes into operation on the
day of the dissolution or determination of the Legislative Assembly next occurring after
the day on which this Act receives the Royal Assent. Divisions 1, 2, 6 and 7 of Part 2
come into operation on the coming into existence of the Legislative Assembly first elected
after this Act receives the Royal Assent. Divisions 4 and 5 (constitution of the
Legislative Council)of Part 2 and Parts 3 and 4 come into operation on 1 July 2003.
Amendments to the Constitution Act 1975
Division 1 – The Principle of Government Mandate
[3]. Inserts a new section 16A providing that in exercising its powers
as a House of Review, the Council is to recognise the Government's specific and general
mandate.
Division 2 – Entrenchment by Referendum, Special and
Absolute Majorities
[4]. Amends section 18 to provide for three methods of legislative
entrenchment by –
- a referendum of the Victorian electors;
- a special majority of 3/5ths of the whole number of members of the Assembly and the
Council;
- an absolute majority of the whole number of the members of the Assembly and the Council.
[5]. Inserts a new Part VA which –
- inserts new sections 94E and 94F which respectively establish the offices of the
Ombudsman and the Electoral Commissioner as independent officers of the Parliament.
- inserts new section 94G to ensure the continuance of an Electoral Boundaries Commission
whose function is to continue to perform the function specified in the Electoral
Boundaries Commission Act 1982.
- inserts a new section 94H to ensure the continuance of an Act whose functions and
objectives reflect the current Freedom of Information Act 1984.
Division 3 – Fixed 4 year terms for Parliament
[8]. Provides that the Assembly may only be dissolved by the Governor
if there is a motion of no confidence in the Premier and other Ministers, or the Premier
advises the Governor to dissolve the Assembly if the dispute resolution process has failed
to resolve a deadlocked Bill.
[9]. Inserts a new section 8A which sets out the requirements for a
motion of no confidence in the Premier and other Ministers to be passed, before a
dissolution of the Assembly may occur.
[10]. Substitutes a new section 28 to provide that the Council will
exist as long as the Assembly co-exists. If the Assembly is dissolved or determined, the
Council will also cease to exist.
The clause also terminates the entire Council on the dissolution of the
Assembly after these amendments come into force.
The question of the early termination of the term
of office of half the members of the Legislative Council that will occur as a result of
these amendments is a matter for Parliament’s consideration. |
[11]. Insert new sections 38 and 38A to provide for a 4 year duration
of the Assembly.
Division 4 – Constitution of the Legislative Council
[13]. Substitutes two new sections for sections 26 and 27 to provide
for the division of the State into 8 region, each region returning 5 members. Also
refer to [45] which provides the list of Legislative Assembly districts that are proposed
to form each new Legislative Council regions.
Division 5 – Casual vacancies in the Council
[14]. Inserts a new section 27A which provides that in the case of the
vacancy of a Member of the Council, a new Member will be selected from the same political
party as that of the vacating member by a joint sitting of both Houses. Where the vacancy
is that of an independent the replacement must be selected by a special majority (3/5ths)
of members present at a joint sitting.
Division 6 – Appropriation Bills
[16]. Substitutes section 62 of the Act and provides that an
appropriation Bill must originate in the Assembly, and may be rejected, but not altered by
the Council subject to section 65.
[17]. Substitutes section 65 and provides that if within one month of
an appropriation Bill passing the Assembly, and the Council fails to pass it or returns it
to the Assembly suggesting an amendment to which the Assembly does not agree, the Bill
must be presented for Royal Assent and becomes an Act of the Parliament, notwithstanding
that the Council did not pass the Bill.
The question of the constitutional
powers of the Legislative Council to amend or reject an Appropriation Bill as proposed in
the amendments to the Constitution Act 1975 is a matter for Parliament’s
consideration. |
Division 7 – Provisions relating to disputes concerning Bills
[18]. Inserts a new Division 9A providing for a dispute resolution
process concerning a deadlocked Bill between the Assembly and the Council. This Division
provides for the establishment of a Dispute Resolution Committee at the commencement of
each Parliament.
Amendments to the Electoral Act 2002
[6]. Inserts a new Part 9A consisting of new sections 177A to 177K to
provide for a process to hold referendums and contains related procedures.
[23]. Amends section 61 relating to issue of a general election writ
and the timing of such an election.
[24]. Inserts into section 69 three new sub-sections which specify that
a candidate for a Council election must indicate on their nomination form, the place of
their enrolment and accompany the enrolment form with a payment of $350.
[25]. Inserts new sections 69A and 69B setting out the requirements for
the grouping of two or more candidates for a Council election and the requirements for a
group of candidates who wish to obtain a group voting ticket describing the order of
preferences for candidates.
[26]. Amends section 72(1) by providing that the death of an Assembly
candidate at certain stages in the election process may lead to the election failing, but
not the death of a Council candidate.
[28]. Inserts a new section 73A dealing with a group voting ticket for
the Council. The proposed ballot paper resembles the ballot paper used for the Australian
Senate with above the line and below the line voting permitted.
[33]. Inserts a new section 93A describing how votes are to be marked
in a Council election. This new section provides that in Council elections, the elector
may vote above the line by placing a number 1 in the square for the group, or below the
line by placing numbers at least from 1-5 in the squares opposite each candidate's name.
[35]. Inserts two new sections 112A and 112B to provide the
circumstances in which Council ballot papers may be taken to be formal and the way in
which Council ballot-papers may be deemed to be marked when an elector has voted for a
group of candidates.
[37]. Inserts a new section 114A which provides for the procedure to
ascertain the number of votes for Council candidates. The procedure is similar to the
Senate quota preferential voting system. To achieve an outright quota for election a
candidate for the Council needs to receive 16.67 per cent of the valid votes cast at the
election. However a quota may be achieved by the transfer of votes from candidates
achieving more than a quota (surplus votes) and also from candidates declared
‘excluded from the count’.
[39]. Inserts a new Schedule 1A to the Electoral Act 2002 which
sets out the form of the ballot-paper for use in Council elections.
[45]. Inserts a new Schedule into the Electoral Boundaries
Commission Act 1982 which describes the Assembly districts that comprise the eight new
Legislative Council regions.
Legislative Assembly Districts comprising each Legislative Council
Region
1. Bass, Frankston, Gembrook, Gippsland East, Gippsland South,
Hastings, Monbulk, Mornington, Morwell, Narracan, Nepean
2. Albert Park, Box Hill, Brunswick, Essendon, Hawthorn, Ivanhoe, Kew, Melbourne,
Northcote, Prahran, Richmond
3. Ballarat East, Ballarat West, Bellarine, Geelong, Lara, Lowan, Melton, Polwarth,
Ripon, South Barwon, South-West Coast
4. Bentleigh, Brighton, Burwood, Carrum, Caulfield, Clayton,
Malvern, Mordialloc, Mount Waverley, Oakleigh, Sandringham
5. Bulleen, Bundoora, Doncaster, Eltham, Evelyn, Kilsyth, Mill Park,
Preston, Thomastown, Warrandyte, Yan Yean
6. Benalla, Benambra, Bendigo East, Bendigo West, Macedon, Mildura, Murray Valley, Rodney, Seymour,
Shepparton, Swan Hill
7. Bayswater, Cranbourne, Dandenong, Ferntree Gully, Forest Hill,
Lyndhurst, Mitcham, Mulgrave, Narre Warren South, Narre Warren North, Scoresby
8. Altona, Broadmeadows, Derrimut, Footscray, Keilor, Kororoit,
Niddrie, Pascoe Vale, Tarneit, Williamstown, Yuroke |
The Committee makes no further comment.
Constitution (Water Authorities) Bill
Introduced: 12 September 2002
Second Reading Speech: 12 September 2002
House: Legislative Assembly
Minister introducing Bill: Hon. S. Bracks MLA
Portfolio responsibility: Premier
Purpose
The Bill amends the Constitution Act 1975 ("the
Act") so as to entrench the responsibility of public authorities for ensuring the
delivery of water services and their accountability to responsible Ministers.
Content and Committee comment
[Clauses]
[2]. The amendments (except section 6) come into operation on the day
after Royal Assent. Section 6 (consequential amendments) comes into operation on the day
on which Division 2 of Part 2** of the Constitution (Parliamentary Reform) Act 2002*
comes into operation.
** The Division concerns the new entrenchment provisions provided by
that Act. * Also considered in this Alert Digest
[4]. Inserts two new paragraphs (ab) and (ac) in sub-section 18(2) the
effect of which is to prohibit any Bill from being presented to the Governor for Royal
Assent that divests water service responsibilities or registered infrastructure to a non
public authority without the Bill receiving absolute majorities in both Houses.
[5]. Inserts a new Part VII into the Act comprising new sections 96 to
98.
New section 97 provides that a current authority with water service
responsibilities must maintain that responsibility and remain accountable to the Minister
for service delivery.
New section 98 requires the Minister to maintain a register of publicly
owned dams and associated works. Any dams or associated works details of which are
recorded in the register must not be sold unless the sale of the particular dam or
associated works is expressly, and not merely by implication, authorised by this or
another Act.
The Minister must ensure that the register is available for inspection
during normal office hours by members of the public without charge at the responsible
Department.
The Minister must cause notice to be published in the Government
Gazette of the recording in the register of details of any dam or associated works within
14 days after that recording.
The Committee makes no further comment.
Control of Weapons and Firearms Acts
(Search Powers) Bill
Introduced: 12 September 2002
Second Reading Speech: 12 September 2002
House: Legislative Assembly
Minister introducing Bill: Hon. A. Haermeyer MLA
Portfolio responsibility: Minister for Police and Emergency Services
Purpose
The Bill amends the Control of Weapons Act 1990 and the Firearms
Act 1996 to –
- lower the standard of conviction from ‘reasonable belief’ to ‘reasonable
suspicion’ required by a police member acting under the relevant provisions of the Control
of Weapons Act 1990 and the Firearms Act 1996 or an authorised officer under
section 153A of the Firearms Act 1996 to justify a search without warrant;
- provide additional safeguards against the potential abuse of increased search powers;
and
- require annual reports to the Minister on the exercise of those powers.
Content and Committee comment
[Clauses]
[2]. Part 1 of the amendments come into operation on the day after
Royal Assent and the remaining provisions come into operation upon proclamation but not
later than by 1 July 2003.
Amendments to the Control of Weapons Act 1990 – Clauses 3 to 8.
Search permitted in non-government schools
[3]. Inserts a new definition of ‘non-government school’ in
the Act.
[4]. Amends section 7 to provide that it is an offence to carry a
dangerous article without a lawful excuse in a non-government school as well as in a
public place. State schools are already included in the definition of public place.
The Committee notes the comments in the Second Reading Speech –
Under the Control of Weapons Act 1990 searches without warrant can
only be conducted in a public place as defined in the Summary Offences Act 1966. This does
not include non-government schools. This creates the anomalous situation where searches
can be conducted in government schools (where the principal authorised the police to
enter), but not in non-government schools. To address this anomaly, a definition of
'non-government school' has been included in the Bill. This allows for the police to
exercise their increased search powers in a non-government school (once the principal has
authorised their entry in line with current protocols), but does not undermine
non-government schools' status as private places.
New power to require production of approval for possession of
prohibited weapon
[5]. Inserts new section 8G and gives a member of the police force, who
has reasonable grounds for suspecting that a person has contravened section 5 (possess,
sell, manufacture, import, prohibited weapons) or is carrying a prohibited weapon the
power to demand that the person produce an approval, granted under section 8C of the Act,
to carry the weapon. The member of the police force making the demand must produce
identification for inspection by the person.
New threshold test for lawful search for weapons
[6]. Substitutes section 10 and inserts new section 10A and 10B to
enable a police member to conduct a search without warrant for a prohibited weapon or
controlled weapon in a public place or a non-government school in certain circumstances.
It differs from the existing section 10 in that it –
- requires the police member to have reasonable grounds for suspecting, rather than
believing, a person has a prohibited or controlled weapon (a lower legal standard);
- provides that the fact the person is in a location with a high incidence of violent
crime is a relevant consideration in forming the reasonable grounds for suspicion;
- requires the police member, before conducting the search, to inform the person of the
member's name, rank and place of duty and, if not in uniform, produce his or her police
identification;
- allows the police member to demand production of a suspected weapon detected or seen
during the search; and
- makes it an offence punishable by a fine of up to 30 penalty units ($3000) for a person
to refuse or fail to produce the detected thing upon demand without reasonable excuse.
New sections 10A and 10B require –
- members of the police force to make records concerning such searches;
- provides a right for those searched to obtain a copy of the record of the search; and
- requires the Chief Commissioner of Police to provide an annual report to the Minister on
the details of searches without warrant conducted under the Control of Weapons Act 1990.
The Committee notes the comments in the Second Reading Speech –
… the Bill lowers the standard of conviction required by a
police member to justify a search without warrant for prohibited or controlled weapons
under the Control of Weapons Act 1990 and firearms under the Firearms Act 1996 from
reasonable grounds for 'belief' to reasonable grounds for 'suspicion' that an offence is
being or is about to be committed. The courts have held that 'reasonable grounds to
believe' is usually taken to mean something more than 'reasonable grounds to suspect' in
that 'belief' connotes a higher standard of conviction than 'suspicion'.
The exercise of such search powers impinges upon the integrity of
individual persons and the possession of their property. For this reason, under both
legislation and the common law such powers are generally limited to emergencies or
dangerous situations. Therefore, an important consideration in considering the lowering of
the search threshold is whether the increased powers are justified in terms of the risk
and gravity of the behaviour sought to be prevented. This involves striking an appropriate
balance between individual rights and the interests of the larger community.
[7]. Amends section 12(1) to enable regulations to be made prescribing
–
- the manner in which searches are to be conducted, and
- particulars to be included in records of searches.
The Committee notes the regulation
making powers and accepts that they are appropriate to give effect to the purposes of the
legislation. |
[8]. Inserts new section 14 which is a transitional provision which
provides that the existing section 10 continues to apply to searches (and alleged offences
related to searches) conducted before the commencement of the new section 10.
Amendments to the Firearms Act 1996
New threshold test for lawful search for firearms
[9]. Substitutes section 149 to provide a member of the police force
with the power to search without warrant if the member has reasonable grounds for
suspecting a person is committing or is about to commit an offence against the Act and
the person has a firearm or cartridge ammunition in their possession.
Note: The new provisions differ from the existing section 149
in similar respects to those listed in the dot points listed in [6] above. Also refer to
exert from Second Reading Speech under [6] above.
The clause also inserts new section 149A requiring a member of the
police force to make records concerning such searches and provides a right for those
searched to obtain a copy of the record of the search.
New threshold test for requirement to produce licence for
firearms
[10]. Amends section 150(1)(a) to allow a member of the police force to
require production of a firearms licence or permit if the member has reasonable grounds to
suspect (rather than reasonable grounds to believe) that a person has committed or is
about to commit an offence against that Act or is in possession of a firearm.
New threshold test for search by authorised officers for firearms
[11]. Amends section 153A to amend the power of authorised officers
appointed under the Conservation, Forests and Lands Act 1987 to search without
warrant if the officer has reasonable grounds for suspecting that a person has a firearm
or cartridge ammunition in their possession and is committing or is about to commit an
offence on land administered by the Minister administering that Act or if the authorised
officer is acting in accordance with his or her duties under the Wildlife Act 1975
or the Fisheries Act 1995. It differs from the existing section 153A in similar
respects to clause 6 and 9 above.
It further amends section 153A to allow an authorised officer to
require production of a firearms licence or permit if the authorised officer has
reasonable grounds to suspect (rather than reasonable grounds to believe) that a person is
in possession of a firearm or is committing or is about to commit an offence.
Parliamentary Committees Act 1968,
section 4D(a)(i) – Undue trespass to rights and freedoms
The Committee notes the proposed lowered threshold test
permitting a lawful search for weapons and firearms without warrant in clauses 6, 9 and
11. The Committee also notes the additional procedural safeguards provided by each of
those clauses.
The question whether the provisions constitute an undue
trespass to rights and freedoms, and whether the circumstances justify a lowering of the
legal threshold involves a balancing between individual rights and the interests of the
larger community and is a matter for the Parliament to consider.
The Committee draws attention to the provisions. |
[12]. Inserts new sections 153B and 153C in the Firearms Act 1996
to provide similar safeguard requirements as in [6] above.
[13]. Amends section 176 to provide that the Chief Commissioner of
Police cannot delegate the obligation to provide a report on searches (without warrant) to
the Minister.
[14]. Extends the regulation-making power of section 191(1) to include
the prescription of –
- the manner in which searches are to be conducted and
- particulars to be included in records of searches under the Act. Also see [7] above.
Amendments to the Wildlife Act 1975
New threshold test for requirement to produce licence to authorised
officers
[16]. Amends section 60A(1)(a) of the Act to provide a new threshold
test for an authorised officer appointed under the Conservation, Forests and Lands Act
1987 to require the production of a firearms licence, by replacing
"believing" with "suspecting". The amendment is in line with the
reduced threshold test introduced by other provisions in the Bill.
The Committee makes no further comment.
Crimes (Property Damage and Computer Offences) Bill
Introduced: 12 September 2002
Second Reading Speech: 12 September 2002
House: Legislative Assembly
Minister introducing Bill: Hon. R. Hulls MLA
Portfolio responsibility: Attorney-General
Purpose
The Bill amends the Crimes Act 1958 to create offences relating
to bushfires, computers and sabotage; and the Bail Act 1977 to include the offence
of arson causing death as an offence in respect of which there is a presumption against
bail.
Content and Committee comment
[Clauses]
[2]. The provisions in the Bill come into operation on the day after
Royal Assent.
Part 2 – Amendments to the Crimes Act 1958
Fire offences
[4]. Inserts a new section 201A to create an offence for a person to
intentionally or recklessly cause a fire; and be reckless as to the spread of the fire to
vegetation on property belonging to another person.
A person will not be taken to be reckless as to the spread of fire
where the person caused the fire in the course of carrying out a fire prevention, fire
suppression or other land management activity; and carried out that activity in accordance
with a provision made by or under an Act or by a Code of Practice approved under an Act
that applied to that activity; and believed that his or her conduct in carrying out that
activity was justified having regard to all of the circumstances.
Computer offences
[5]. Inserts a new Subdivision (6) in Division 3 of Part I (new
sections 247A-247I) creating 7 new computer offences.
New section 247A defines the terms "access",
"data", "data held in a computer", "data storage device",
"electronic communication", "impairment", "modification",
"serious computer offence" and "unauthorised computer function" used
in the subdivision.
New section 247B makes it an offence for a person to cause an
unauthorised computer function. The person must know that the function is unauthorised and
must have the intention of committing a serious offence or facilitating the commission of
a serious offence (whether by the person or another person). New section 247B(2) defines a
"serious offence".
New section 247C makes it an offence for a person to cause any
unauthorised modification of data held in a computer. The person must know that the
modification is unauthorised, and must intend to impair access to, or the reliability,
security or operation of, any data held in a computer or the person must be reckless as to
any such impairment.
New section 247D makes it an offence for a person to cause any
unauthorised impairment of electronic communication. The person must know that the
impairment is unauthorised, and must intend to impair electronic communication or be
reckless as to any such impairment.
New section 247E makes it an offence for a person to possess or control
data with the intention of committing a serious computer offence or facilitating the
commission of a serious computer offence (whether by that person or another person).
New section 247F makes it an offence for a person to produce, supply or
obtain data with the intention of committing or facilitating a serious computer offence.
New section 247G makes it a summary offence for a person to cause
unauthorised access to, or modification of, restricted data held in a computer. The person
must know that the access or modification is unauthorised and must intend to cause the
access or modification.
New section 247H makes it a summary offence for a person to cause any
unauthorised impairment of the reliability, security or operation of data held on a
computer disk, credit card or other device used to store data by electronic means. The
person must know that the impairment is unauthorised and must intend to cause the
impairment.
New section 247I provides that the offences created by the Subdivision
have extra-territorial effect provided that there is a nexus between the conduct or
computer or device and Victoria.
Sabotage and threats to damage a public facility
[6]. Inserts new sections 247J-247L creating two new sabotage offences.
New section 247K makes it an offence for a person to damage a public
facility (defined by new section 247J) or by causing an unauthorised computer function
with the intention of causing major disruption to government functions, or major
disruption to the use of services by the public, or major economic loss. Penalty – 25
years' imprisonment.
New section 247L makes it an offence for a person to make a threat to
damage a public facility by committing a property offence or by causing an unauthorised
computer function. The person who makes the threat must intend the other person to fear
that the threat will be carried out and will cause major disruption to government
functions, or major disruption to the use of services by the public, or major economic
loss. Penalty – 15 years' imprisonment.
[7]. Inserts new sections 428 and 429 to provide for alternative jury
verdicts for the new offences under sections 247C and 247D (see above).
[8]. Makes a consequential amendment to provide that the offences under
new section 201A (intentionally or recklessly causing a bushfire), new section 247K
(sabotage) and new section 247L (threats to sabotage) are forensic sample offences for the
purposes of the Act.
[9]. Inserts a new section 597 providing that the amendments made by
the Bill apply only to offences alleged to have been committed on or after the
commencement of the new provisions.
Part 3 – Amendments to the Bail Act 1977
[10]. Inserts a new paragraph (caa) in section 4(4) of the Bail Act
1977 to include the offence of arson causing death under section 197A of the Crimes
Act 1958. As a consequence a court will be required to refuse bail where an accused is
charged with that offence unless the person can "show cause" as to why detention
in custody is not justified.
Note: Section 197A of the Crimes Act 1958 provides –
A person who commits arson as defined in section 197 and thereby
causes the death of another person is guilty of an indictable offence’. Penalty:
Level 2 imprisonment (25 years maximum).
[11]. Inserts new section 34(5) into the Bail Act 1977 to
provide that the amendment to the Act only applies to a charge for an offence filed on or
after its commencement.
The Committee notes that section 4(1)
of the Bail Act 1977 commences with the presumption that an accused should be granted
bail. The Committee further notes that in certain cases the presumption of bail is
displaced where an accused person must show cause why detention in custody is not
justified.
The question whether the presumption of bail should be
displaced in cases involving an offence of arson causing death under section 197A of the
Crimes Act 1958 is a matter for Parliament to consider.
The Committee draws attention to the provision. |
Amendments to other Acts
[13]. Makes a consequential amendment to the Sentencing Act 1991
to insert the offence of the intentionally or recklessly causing a bushfire as an offence
for which a person may be sentenced under that Act as a serious offender. [14]. Inserts a
transitional provision new section 127, into the Sentencing Act 1991 to provide
that amendments made to that Act by the proposed Bill apply only to offences alleged to
have been committed on or after the commencement of this proposed Act.
[15]. Repeals section 9A of the Summary Offences Act 1966
prohibiting gaining access to, or entering, a computer system or part of a computer system
without lawful authority. The new provisions in this Bill replace this outdated provision.
The Committee makes no further comment.
Federal Awards (Uniform System)
Bill
Introduced: 12 September 2002
Second Reading Speech: 12 September 2002
House: Legislative Assembly
Minister introducing Bill: Hon. J. Lenders MLA
Portfolio responsibility: Minister for Industrial Relations
Purpose
The Bill refers certain legislative powers to the Commonwealth
Parliament relating to industrial relations, and empowers the Victorian Civil and
Administrative Tribunal (VCAT) to make orders applying federal award conditions as common
rules in Victoria.
Content and Committee comment
[2]. The provisions in the Bill come into operation on a day or days to
be proclaimed. Section 43 does not come into operation unless the Governor in Council is
satisfied that a Bill has been introduced into the Commonwealth Parliament containing
provisions about the matter to be referred to that Parliament by proposed clause 43.
Clause 2(3) provides that, if section 43 has come into operation, the remaining Parts of
the Act will not come into operation.
The Committee notes the comments in the Second Reading Speech –
The main purpose of the Bill is to refer to the Commonwealth
Parliament a further matter relating to industrial relations, and to empower the Victorian
Civil and Administrative Tribunal (VCAT) to make orders applying Federal award conditions
as common rules in Victoria.
The Bill, in fact, has two stages:
Stage 1 involves a referral of further industrial relations power to
the Commonwealth so it can legislate to apply Federal award standards (the 20 minimum
conditions) to Victorian schedule 1A workers.
Stage 2 will be implemented if the Commonwealth refuses to legislate to
adopt the proposed referred power. It involves Federal awards applying on application by
common rule, under Victorian legislation.
In other words, stage 2 will only be implemented if stage 1 fails due to a lack of
cooperation on the part of the Commonwealth.
…
It is only if the Commonwealth refuses the referral of the common rule
power that the remaining provisions in the legislation will be implemented.
The Committee notes that a
proclamation will not be made bringing the provisions of the Bill into operation (other
than section 43) if section 43 comes into operation. The Committee further notes that
section 43 will only come into operation if certain Commonwealth legislation is introduced
into a House of the Commonwealth Parliament. In the event that the Commonwealth does not
introduce certain legislation the provisions of the Bill (other than section 43) may
commence on proclamation.
In the circumstances the Committee accepts the use of a
commencement by proclamation provision is appropriate. |
Part 2 – Common Rule Orders
[6]. A "common rule order" ("an order") is an order
made by VCAT, having the effect of binding all employers and employees in the industry
concerned. An order is of no effect to the extent that it relates to a term or part of a
term of an award that provides for matters other than allowable matters. [7]. States the
effect of an order.
[8]. Provides that VCAT may make an order on application by the
Minister, a registered organisation or a peak body in the relevant industry.
[9]. Establishes the application procedure for an order.
[10]. Requires VCAT to make an order in certain circumstances.
[11]. Requires VCAT to specify the scope of the order, for example, the
class of employee to which it applies. VCAT may, in exceptional circumstances, provide
that an order comes into effect on a day earlier than the day on which the order is made.
If that happens, a person cannot be convicted of an offence in respect of conduct that
occurred before the day the order is made and [12 and 13] provide for the variation and
revocation of a common rule order.
Part 3 – Compliance (sections 14 to 39)
[14]. Sets out the functions of information services officers
("officers") to provide information about the Act, as well as ensuring
compliance with the Act. [15]. Sets out the appointment mechanism for, and the
qualifications of officers and [16] provides that such officers are to be provided with
approved identity cards, which must be produced when exercising powers and [17] allows
officers to request assistance from the police.
Powers of entry search, seizure
[19]. Allows information services officers to enter any premises, with
the consent of the occupier, where the officer has reasonable grounds for believing that
work under a common rule order is being performed, or documents relevant to compliance
with an order are kept.
[20]. Provides powers of inspection, taking samples of goods,
interviewing employees, or inspecting documents.
[21]. Allows an information services officer to require the production
of a document for the purposes of determining compliance with an order (note
section 29 providing a privilege against self-incrimination).
[23]. Allows for the issue of a search warrant, and sets out the
conditions under which a magistrate may issue a search warrant pursuant to the rules and
procedures of the Magistrates’ Court Act 1989.
[24]. Deals with a formal announcement by an officer before executing a
search warrant, unless immediate entry is required to ensure the safety of a person, or to
ensure that the effective execution of the warrant is not frustrated.
[27]. Requires that an employer, registered organisation or interested
organisation must not victimise an employee who claims a benefit, or exercises a power or
right, under the Act or a common rule order, or who has brought a proceeding under the
Act.
[28]. Makes it an offence, without reasonable excuse, to fail to
produce documents or hinder information services officers and also makes it an offence to
give false information or false or misleading documents to information services officers (note
section 29 providing a privilege against self-incrimination).
Privilege against self-incrimination
[29]. Provides protection against self-incrimination. However the
privilege does not cover the operation of section 105 of the Victorian Civil and
Administrative Tribunal Act 1998. That section requires a person to give evidence or
produce a document in proceedings before the Tribunal notwithstanding a tendency to
incriminate. That section also provides a use limitation in any other criminal proceedings
for information provided other than in respect to the falsity of the information provided.
Reverse onus of proof
[35]. In a prosecution of an employer for failing to pay an employee an
amount owed to the employee under a contract of employment, if the employee is dead and
the employer alleges that the period of continuous employment shown in the charge is
wrong, the employer bears the onus of proving the allegation.
The Committee accepts that the matters
required to be proved in such prosecutions are also within the peculiar knowledge of an
employer and that it is therefore acceptable to include a reverse onus of proof in the
circumstances of a claim made by a representative of a deceased employee. |
[40]. Allows for a general regulation making power.
The Committee notes the regulation
making powers and accepts that they are appropriate to give effect to the purposes of the
legislation. |
[43]. Inserts a new section 4A in the Commonwealth Powers
(Industrial Relations) Act 1996 referring to the Commonwealth Parliament the power of
making an award or order as, or declaring a term of an award or order to be, a common rule
in Victoria for an industry. There is also provision in for the termination of this
reference by proclamation by Governor in Council.
The Committee makes no further comment.
Health Legislation (Research
Involving Embryos and Prohibition of Human Cloning) Bill
Introduced: 12 September 2002
Second Reading Speech: 12 September 2002
House: Legislative Assembly
Minister introducing Bill: Hon. J. Thwaites MLA
Portfolio responsibility: Minister for Health
Purpose
The Bill amends the Infertility Treatment Act 1995 ("the
Act") so as to make fresh provision for –
- the regulation of certain research involving the use of human embryos; and
- the prohibition of human cloning and certain other practices associated with
reproductive technology.
The Committee notes the following selected exerts from the Second
Reading Speech –
- Victoria has now become part of a commitment to implement nationally consistent
legislation to prohibit human reproductive cloning and regulate assisted reproductive
technology and related emerging human technologies. This commitment was made at the
Council of Australian Governments in April this year.
- The decision of the Council of Australian Governments requires legislation to be passed
by the Commonwealth and all Australian States and Territories. This Bill is Victoria's
contribution to that national scheme.
- This Bill prohibits the creation of embryos for research purposes.
- Once defined as excess, the woman (or couple) is able to consent to the embryo being
used in research. Destructive research will only be permitted on embryos already existing
at 5 April 2002.
- The proposed Bill requires consent of all individuals who contributed to the creation of
the embryo and the woman or couple for whom the embryo was made.
- All research on excess embryos will be regulated by the National Health and Medical
Research Council (NHMRC) embryo research licensing committee. This national committee will
be responsible for issuing licences to conduct research and reporting to Parliament and
the public about such research.
Ban on cloning
This Bill replaces the existing ban on human cloning by adopting the
wording in the Commonwealth legislation. The wording in the Commonwealth Bill is adequate
to cover foreseeable changes in technology and this will satisfy any community concern
that the current provisions are not adequate.
The penalties listed in the Bill for cloning and other prohibited
practices are significantly higher than those in the Infertility Treatment Act 1995. The
higher penalties reflect current concerns in the community about the significance of
cloning and the lack of support for such a practice.
Content and Committee comment
[2]. The provisions in the Bill come into operation on proclamation.
The Committee notes the Explanatory Memorandum to the effect that
–
The Bill is complementary to the Bills for the Research Involving
Embryos Act 2002 (Commonwealth) (referred to in this Explanatory Memorandum as "the
Commonwealth Act") and the Prohibition of Human Cloning Act 2002 (Commonwealth).
The Committee notes that the Bill is
complimentary to Commonwealth legislation and accepts that in the circumstances it is
appropriate to use a commencement by proclamation provision. |
[7]. Inserts a new Part 2A. consisting of new sections 21A to 21Z.
New section 21B defines "excess embryo".
New section 21C essentially describes the scope of the regulatory
scheme for excess embryos by describing the uses of excess embryos that require a licence
by the NHMRC Licensing Committee ("the Committee") and those that do not. (‘NHMRC’
- National Health and Medical Research Council)
It is an offence to intentionally use an excess embryo unless the use
is authorised by a licence or is one of the exempt uses. The offence is an indictable
offence punishable by imprisonment for a term not exceeding 5 years.
New section 21D provides that it is an offence to intentionally use a
non-excess embryo unless the use is part of a program carried out by an accredited clinic.
New section 21E provides that a person is guilty of an offence if they
intentionally do something, or fail to do something, that they know will result in a
breach of a condition of licence or that they do so being reckless as to whether or not
the action or omission will contravene a condition of licence. An offence against this
section is an indictable offence punishable by imprisonment for a term not exceeding 5
years.
New section 21F confers functions on the NHMRC Licensing Committee,
which is a Committee established by section 13 of the Commonwealth Act. In essence, the
Committee will, amongst other things, consider licence applications and monitor compliance
with the legislation.
New section 21N enables the Committee to suspend or revoke a licence
that has been issued if they believe, on reasonable grounds, that a condition of the
licence has been breached.
New section 21R is intended to protect, from public disclosure, certain
information that is legitimately confidential commercial information. Information may be
disclosed by a court order or with the consent of the person to whom the information has a
commercial or other value.
New section 21T provides that an eligible person may apply to the
Commonwealth Administrative Appeals Tribunal for review of certain decisions of the
Committee.
Entry and Search Powers
New section 21U confers powers upon an inspector to enter any premises
and to exercise any or all of the powers set out in the new section 21V for the purposes
of establishing whether or not the new Part 2A or the regulations are being complied with.
An inspector may only enter premises if he or she has the consent of the occupier or if
the occupier is a licence holder, or a person covered by a licence, and the entry is at a
reasonable time.
The Committee notes that the provision
will permit entry without the need for of a warrant. However the Committee notes that
section 21L deals with conditions attached to licences including monitoring conditions. In
the circumstances the Committee accepts the inclusion of such a search and entry
provision. |
New section 21V describes the monitoring powers that an inspector may
exercise for the purposes of determining whether the new Part 2A or the regulations have
been complied with.
New section 21W provides that if an inspector, during the course of
inspecting premises, finds something that may be evidence in relation to an offence
committed under the new Part 2A, the inspector may secure the thing pending application
for a warrant to seize it.
New section 21X provides that an inspector cannot exercise any of the
powers under new Part 2A in relation to premises unless he or she produces his or her
identity card upon being requested to do so by the occupier of those premises.
New section 21Y provides that, before obtaining consent from a person
to enter premises the inspector must inform the person that he or she may refuse consent.
Any consent given by a person to enable entry to premises by the inspector must be
voluntary. New section 21Z provides that the Committee may have to pay compensation for
any damage caused during an inspection.
[9]. Inserts a new Part 4A consisting of new sections 38A to 38O which
sets out prohibited practices in relation to embryos.
New section 38A makes it an offence to intentionally create an embryo
that is a genetic copy of another living or dead human. It is an indictable offence
punishable by imprisonment for a term not exceeding 15 years (as are the offences under
38B, 38C and 38D).
New section 38B makes it an offence to intentionally place into the
body of a human or an animal a human embryo that is a genetic copy of another living or
dead human.
New section 38C makes it an offence to intentionally import a human
embryo clone into Victoria or intentionally export a human embryo clone from Victoria.
New section 38D provides that any human embryo clone that is
intentionally created, implanted, imported or exported does not have to survive to the
point of live birth in order for an offence to be established under the new section 38A,
38B or 38C.
New section 38F provides an offence to create a human embryo outside
the body of a woman if it is intended, at the time of creation, that the embryo could be
implanted in an attempt to achieve pregnancy in a particular woman. It is an indictable
offence (also under 38G, 38H, 38I, 38J, 38K, 38L, 38M, 38N and 38O) punishable by
imprisonment for a term not exceeding 10 years.
New section 38G makes it an offence to intentionally create or develop
a human embryo containing genetic material provided by more than 2 people.
New section 38H requires that a human embryo created outside the body
of a woman must not be allowed to develop beyond 14 days.
New section 38I prevents the creation of a human embryo with cells
taken from another human embryo or a human foetus that have the potential to develop into
egg or sperm cells. It is also an offence to develop a human embryo created by precursor
cells of eggs or sperm taken from an embryo or foetus.
New section 38J prohibits any manipulation of a human genome that is
intended to be heritable, that is, able to be passed on to subsequent generations of
humans.
New section 38K prevents the removal of viable human embryos from the
body of a woman after fertilisation has taken place in vivo – a practice sometimes
referred to as embryo flushing.
New section 38L makes it an offence to intentionally create a chimeric
embryo or to intentionally create a hybrid embryo.
New section 38M prevents the placement of a human embryo in an animal;
a human embryo into the body of a human, including a man or any part of a woman's body,
other than the female reproductive tract; an animal embryo in a human, for any period of
gestation.
New section 38N prevents the intentional import into Victoria,
intentional export from Victoria or the intentional placement in the body of a woman of
any embryo that is referenced in the new sections 38E, 38F, 38G, 38H, 38I, 38J, 38K, 38L
and 38M.
New section 38O prevents the commercial trading of human eggs, sperm
and embryos.
[24]. Repeals provisions in the Gene Technology Act 2001 that
ban human cloning, certain experiments involving animal eggs and certain experiments
involving putting human and animal cells into a human uterus. These provisions are
redundant once the Bill has been enacted.
The Committee makes no further comment.
Murray-Darling Basin (Amendment) Bill
Introduced: 12 September 2002
Second Reading Speech: 12 September 2002
House: Legislative Assembly
Minister introducing Bill: Hon. S. Garbutt MLA
Portfolio responsibility: Minister for Environment and Conservation
Purpose
The Bill amends the Murray-Darling Basin Act 1993 ("the
Act") to approve and give effect to the Murray-Darling Basin Amending Agreement
between the Commonwealth, New South Wales, Victoria and South Australia ("Amending
Agreement") to amend the Murray-Darling Basin Agreement ("Agreement").
The effect of the Amending Agreement is to make new arrangements for
the sharing of water made available in the River Murray catchment above the Hume Dam by
the Snowy Scheme. The Amending Agreement is subject to the approval of the Parliament of
each party to the Agreement.
The purpose of the original Agreement was to promote and co-ordinate
effective planning and management for the equitable efficient and sustainable use of the
water, land and environmental resources of the Murray-Darling Basin.
The Amending Agreement adds schedule G to the agreement to make
arrangements for the sharing between New South Wales, Victoria and South Australia of
water made available in the catchment of the River Murray above Hume Dam by the Snowy
Scheme.
Content and Committee comment
[Clauses]
[2]. Provides for the Bill to commence on a day to be proclaimed. No
time limit has been placed on proclamation to allow for commencement to be co-ordinated
with the commencement of corresponding legislation in the other jurisdictions that are
signatories to the Murray-Darling Basin Amending Agreement.
The Committee notes the commencement
by proclamation clause and accepts that as the Bill gives effect to a multi-lateral
agreement it is therefore appropriate in the circumstances to use such a commencement
clause. |
[4]. Inserts a new section 5A into the Act providing that the Amending
Agreement is approved by the Parliament. [6]. Inserts a new Schedule 2 containing the text
of the Amending Agreement.
The Committee makes no further comment.
National Parks (Box-Ironbark and
Other Parks) Bill
Introduced: 12 September 2002
Second Reading Speech: 12 September 2002
House: Legislative Assembly
Minister introducing Bill: Hon. S. Garbutt MLA
Portfolio responsibility: Minister for Environment and Conservation
Purpose
The Bill –
- amends the National Parks Act 1975 to create new parks under that Act and make
further provision in relation to existing parks and other Crown land and to make other
amendments to that Act; and
- creates new reserves under the Crown Land (Reserves) Act 1978 and to make other
amendments to that Act; and
- makes related amendments to the Mineral Resources Development Act 1990, the Reference
Areas Act 1978 and the Forests Act 1958 and to make further consequential
amendments to those Acts.
Content and Committee comment
[2]. The provisions in the Bill come into operation on the day after
Royal Assent.
Amendments to the National Parks Act 1975 ("the Act")
[6]. Inserts new section 29A in relation to leases over land at two
lighthouse reserves at Wilsons Promontory (South East Point and Citadel Island) that are
being added to Wilsons Promontory National Park. The section continues the leases which
were granted to the Commonwealth of Australia and the Australian Maritime Safety Authority
in 1995 over small areas of land for maritime safety or meteorological purposes, and
enables new leases to be granted for similar purposes.
[8]. Inserts a new heading to section 32D and amends that section by
substituting new paragraphs describing the parks or parts of parks in which the searching
for minerals or particular minerals (gemstones) may be authorised.
[9]. Amends section 37(2) to enable the Secretary to authorise the
carriage or use of firearms in specified parks.
[11]. Inserts new sections 50A-50M.
Section 50M states that the amendments 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 of the Commonwealth.
Amendments to the Crown Land (Reserves) Act 1978
Amendments to other Acts
Part 4 contains clauses 20-27, which amend the Mineral Resources
Development Act 1990 (MRDA), the Reference Areas Act 1978 and the Forests
Act 1958.
[20]. Amends section 6 of the MRDA by inserting sub-section (3) to
provide that a mining licence may be granted over a specified part of Greater Bendigo
National Park if the licence only authorises minor mining infrastructure, despite the
provisions of sub-section (1)(b) which exempt land that is a national park from being
subject to a mining licence (except in particular circumstances).
The Committee makes no further comment.
Regional Development Victoria Bill
Introduced: 12 September 2002
Second Reading Speech: 12 September 2002
House: Legislative Assembly
Minister introducing Bill: Hon. J. Brumby MLA
Portfolio responsibility: Minister for State and Regional Development
Purpose
The Bill creates Regional Development Victoria (RDV) as a
statutory body, defines its role, provides for a Chief Executive and creates a committee
to advise the Minister about the development of rural and regional Victoria.
Content and Committee comment
[Clauses]
[2]. The Bill comes into operation by proclamation but not later than
by 1 July 2003.
[3]. Defines terms used in the Bill, including "rural and regional
Victoria".
[4]. Establishes RDV consisting of a Chief Executive and staff employed
in a public sector agency under Part 3 of the Public Sector Management and Employment
Act 1998 who have been seconded or transferred to or assigned work in RDV.
[5]. Sets out the functions and powers of RDV and [6] creates the
office of the Chief Executive of RDV. [7]. Specifies the functions, powers and duties of
the Chief Executive.
[8]. Enables the Chief Executive to delegate to staff employed under
[4], any power under the proposed Act except the power of delegation.
The Committee notes the delegation
power and considers the delegation is sufficiently defined for the purposes of the Act. |
[10]. Provides the Minister with the power to issue directions to RDV.
[11]. Creates the RDV Advisory Committee which is to consist of the
Chief Executive, who will be Chairperson, and no more than 6 other members appointed by
the Governor in Council on the recommendation of the Minister.
[12]. Specifies the functions of the Advisory Committee.
The Committee makes no further comment.
Road Safety (Responsible Driving) Bill
Introduced: 12 September 2002
Second Reading Speech: 12 September 2002
House: Legislative Assembly
Minister introducing Bill: Hon. P. Batchelor MLA
Portfolio responsibility: Minister for Transport
Purpose
The Bill amends the Road Safety Act 1986 ("the Act")
to –
- introduce measures to deter excessive speeding;
- expand the circumstances in which a learner permit or probationary driver licence may be
immediately suspended for certain offences involving alcohol; and
- introduce a new demerit points suspension of licence scheme for probationary and learner
licence holders.
The Bill also amends the Marine Act 1988 to clarify the scope of
the failing a breath test offence.
Content and Committee comment
[Clauses]
[2]. Sections 8 and 15 come into operation on the day after Royal
Assent. The remaining provisions will come into operation on proclamation but not later
than by 1 December 2003.
Demerit points scheme – probationary licences
[5]. Amends section 25 dealing with the demerit points scheme requiring
VicRoads to serve a notice on any learner or probationary driver who accrues 5 points
within any 12 month period. The suspension of licence for 12 demerit points in 3 years
stays in place.
Excessive speeding – licence suspension
[7]. Amends section 28 to provide that a court must suspend the licence
or permit of any person who exceeds a speed limit by 25 kilometres per hour or more.
Presently the relevant speed limit 30 km/h or more. (also see table below at clause
[14] )
The Committee notes the comments in the Second Reading Speech –
In this Bill, the deterrent against excessive speeding is
strengthened by redefining it as exceeding the speed limit by 25 kilometres per hour,
rather than 30 kilometres per hour, as at present. Excessive speeding incurs a minimum
licence suspension of one month. In cases where a driver exceeds the speed limit by 35
kilometres per hour or more, the Bill sets a minimum suspension period of six months. And
exceeding the speed limit by 45 kilometres per hour or more will now incur suspension for
at least 12 months.
‘On the spot’ interim suspension of licences for drink
driving offences
[9]. Amends section 51 to provide for "on the spot"
suspension of driver licences and permits for drink-drivers.
The Committee notes the comments in the Second Reading Speech –
… the Bill proposes amendments to permit the police to suspend
the licences or permits of drink-drivers on the spot wherever they could be suspended
following charge under the current law. In essence, this is a timing change, designed to
get the person off the road immediately.
To achieve this, the Bill proposes that suspensions may be imposed on
the basis of the same certificates of analysis that can presently be used to prove a
drink-driving charge.
For repeat drink-drivers, interim suspension can be imposed for any
drink-driving offence, as at present. For a first offender with a full licence, interim
suspension can be imposed if the person's blood alcohol content is 0.15 or higher. Again,
this is the current threshold for interim suspension.
In the case of learner drivers and probationary drivers, however, the
Bill proposes to lower the threshold for interim suspension to 0.07. These are
inexperienced drivers, who are subject to a zero alcohol condition. A learner or
probationary driver who drives with a blood alcohol concentration of 0.07 or higher
represents an unacceptable risk and should have his or her licence suspended immediately.
New section 51(1)(a)(ii) will permit Police to issue an interim
suspension notice to the holder of a probationary licence or learner permit after charging
him or her with a drink-driving offence that alleges a BAC of 0·07 or higher.
Sub-clause (2) insert new sections 51(1B) and (1C) to allow Police to
issue an interim licence or permit suspension notice "on the spot" if all of the
following preconditions are met –
- the person has provided a breath or blood sample within three hours of driving (or being
in charge of a vehicle), that the sample had been analysed and the analysis had indicated
the presence of an unlawful BAC level.
- a certificate has been issued that states the level of BAC.
- the BAC stated in the certificate is at or above the amount stated in new section
51(1B)(c). This means any licence or permit may be suspended if the driver's BAC is 0·15
or higher. In the case of a probationary licence or learner permit, suspension can be
imposed if the driver's BAC is 0·07 or higher. Further, in the case of a person who has
committed a drink-driving offence within the previous ten years, the licence or permit may
be suspended if the analysis shows any unlawful BAC level.
All interim suspension begins when the suspension notice is actually
given to the person. The new suspension powers will only apply in relation to offences
alleged to have been committed after the amendments take effect.
[11]. Amends section 89D which deals with the suspension of licences or
permits for excessive speed infringements. Section 89D(2) is repealed so that probationary
periods will not be extended as a result of excessive speed infringements. Instead the
Bill increases the licence suspension penalties in respect of excessive speeding.
[12]. Inserts a new paragraph (ib) into section 92(3) dealing with the
use and disclosure of personal and commercially sensitive information from VicRoads'
records. The amendment will enable Police and VicRoads to use or disclose such information
for the purpose of informing persons about the possible consequences of incurring further
demerit points.
[13]. Inserts a new section 103C setting out the transitional
arrangements for the amendments made by the Bill. The general principle is that the new
interim licence suspension arrangements and increased licence loss penalties will apply
only in respect of offences committed after the legislation comes into operation.
[14]. Substitutes Schedule 5 which sets out minimum suspension periods
for excessive speed offences. Threshold speeds are reduced and the suspension periods are
increased (see table below). Section 28 of the Act requires courts to impose these minimum
periods of suspension for excessive speed offences.
The new suspension requirements brought in by the new Schedule 5 will
apply only to offences that are alleged to have been committed after the commencement of
that section.
Schedule 5
Excess speed limits and relevant licence suspension
periods
Speed of Vehicle Minimum period
1. Exceed speed limit by 25 (30) kph but less than 35 kph
(40) 1 month
2. Exceed speed limit by 35 (40) kph but less than 45 kph (50) 6 (4)
months
3. Exceed speed limit by 45 (50) kph or more 12 (6) months
4. Any speed of 130 kph or more not covered by 1, 2, or 3 above 1 month
*
Existing speed limits and suspension of licence periods are shown in (brackets) |
Amendments to the Marine Act 1988
[15]. Amends section 28 to clarify that the
drink-driving offence of failing a breath test within three hours of driving, includes
failing a breath test conducted under any sub-section of section 31 (breath analysis) of
that Act. [16]. Provides that the amendment to section 28 applies only in respect of
offences committed after the amendment comes into force.
The Committee makes no further comment.
Sentencing (Further Amendment) Bill
Introduced: 12 September 2002
Second Reading Speech: 12 September 2002
House: Legislative Assembly
Minister introducing Bill: Hon. R. Hulls MLA
Portfolio responsibility: Attorney-General
Purpose
The Bill amends the Sentencing Act 1991 ("the Act") to
empower the Court of Appeal ("the Court") to give guideline judgments and to
establish a Sentencing Advisory Council ("the Council").
Content and Committee comment
[Clauses]
[2]. The amendments come into operation on proclamation but not later
than 1 October 2003.
[4]. Inserts new Part 2AA which sets out the power of the Court to give
guideline judgments.
New section 6AA defines a guideline judgment to mean a judgment that is
expressed to contain guidelines to be taken into account by courts in sentencing
offenders. The Court may confirm, vary, revoke or substitute a guideline judgment with a
new guideline judgment.
New section 6AB(3) provides that the Court may give or review a
guideline judgment even if it is not necessary for the purpose of determining any appeal
before the Court.
New section 6AB(4) provides that a decision of the Court to give or
review a guideline judgment must be a unanimous decision of the Judges constituting the
Court.
New 6AC and 6AD provide for the content of guideline judgments and for
procedural requirements before making guideline judgments.
New section 6AE provides that, in considering the giving of, or in
reviewing, a guideline judgment, the Court must have regard to –
- the need to promote consistency of approach in sentencing offenders; and
- the need to promote public confidence in the criminal justice system; and
- any views stated by the Council, and any submissions made by the Director of Public
Prosecutions or a legal practitioner representing Victoria Legal Aid under new section
6AD.
[6]. Inserts new Part 9A which provides for the establishment of the
Council.
New section 108B provides for the establishment of the Council as a
body corporate.
New section 108C sets out the functions of the Council, which are to
–
- state in writing to the Court its views in relation to the giving, or review, of a
guideline judgment;
- provide statistical information on sentencing, including information on current
sentencing practices, to members of the judiciary and other interested persons;
- conduct research and disseminate information on sentencing matters to members of the
judiciary and other interested persons;
- gauge public opinion on sentencing matters;
- consult on sentencing matters with government departments and other interested persons
and bodies as well as the general public;
- advise the Attorney-General on sentencing matters.
New section 108E provides that the Council may delegate any of its
functions or powers to a director of the Council, the CEO of the Council or a member of
staff of the Council (employed under the Public Sector Management and Employment Act
1998), other than its function to provide written views to the Court of Appeal in
relation to the giving, or review, of a guideline judgment; and its power of delegation.
The Committee notes the delegation
power and considers the delegation is sufficiently defined for the purposes of the Act. |
New section 108F provides for the constitution of the Council and
provides that between 9 and 12 directors are to be appointed by the Governor in Council on
the nomination of the Attorney-General.
New section 108M provides for the employment of a CEO of the Council
and as many other employees under the Public Sector Management and Employment Act 1998 as
are necessary to enable the Council to perform its functions.
New section 108P requires the Council, on request, to provide
information to Parliament or a Parliamentary Committee.
The Committee makes no further comment.
Wrongs and Other Acts (Public
Liability Insurance Reform) Bill
Introduced: 12 September 2002
Second Reading Speech: 12 September 2002
House: Legislative Assembly
Minister introducing Bill: Hon. S Bracks MLA
Portfolio responsibility: Premier
Purpose
The Bill amends the –
(a) Wrongs Act 1958 to –
(i) provide that issues of intoxication and illegal activity must be taken into
consideration in certain claims in respect of death or personal injury;
(ii) provide that an apology does not constitute an admission of liability in civil
proceedings where the death or injury of a person is in issue;
(iii) limit the amounts that may be recovered as damages for death or personal injury
caused by the fault of a person by –
- creating a cap on loss of earnings of three times average weekly earnings,
creating a cap on non-economic losses of approximately $370,000 (indexed), and
setting the discount rate at 5 per cent and adjusting this rate to reflect actual real
investment returns.
(iv) provide for the use of structured settlements as an alternative method for payment
of personal injury compensation;
(v) protect good samaritans providing assistance, advice or care at emergencies or
accidents from civil liability for their actions;
(vi) protect food donors from civil liability arising from the consumption of donated
food; and
(vii) protect volunteers providing services in relation to community work from civil
liability for their actions.
(b) Coroners Act 1985 to provide that an apology or waiver or
reduction of professional fees does not constitute an admission for the purposes of
coronial findings in an investigation of a death;
(c) Food Act 1984 in relation to food donors;
(d) Goods Act 1958 to extend the operation of Part IV of that
Act to additional services and to provide for waivers permitting self-assumption of risk
by people who choose to participate in inherently risky activities;
(e) Essential Services Commission Act 2001 to confer functions
on the Commission in relation to the insurance industry;
(f) Country Fire Authority Act 1958 to enable information about
fire insurance levies under that Act to be obtained from insurers and made available; and
(g) Metropolitan Fire Brigades Board Act 1958 to enable
information about fire insurance levies under that Act to be obtained from insurers and
made available.
Content and Committee comment
[Clauses]
[2]. Provides that except sections 8 and 11 and Part 5 the provisions
in the Bill come into operation on the day after Royal Assent.
Section 8 is to come into operation on a day to be proclaimed. The
timing of commencement of this provision is dependent on the passage of Commonwealth
taxation legislation relating to structured settlements.
Section 11 is to come into operation on a day to be proclaimed but not
later than on 1 July 2003.
Part 5 is to come into operation on a day to be proclaimed. The timing
of commencement of this provision is dependent on the passage of similar amendments to the
Trade Practices Act 1974 (Clth).
Part 2 –– Amendments to the Wrongs Act 1958
Occupiers’ liability where plaintiff intoxicated and/ or
engaged in illegal activity
[3]. Inserts new paragraphs (fa) and (fb) into section 14B(4) to
provide that in determining whether the duty of care owed by occupiers to persons entering
their premises has been discharged, the court must consider whether the person entering
the premises is intoxicated by alcohol or drugs voluntarily consumed and the level of
intoxication or is engaged in an illegal activity and [4] inserts a transitional provision
to provide that this amendment applies to claims brought on or after the commencement of
[3].
Negligence – consideration of intoxication and illegal
activity for purposes of damages
[5]. Inserts a new Part IIB consisting of new sections 14F to 14H.
New section 14G provides that in determining whether the plaintiff has
established a breach of the duty of care owed by a defendant, the court must consider,
among other things, whether the plaintiff was intoxicated by alcohol or drugs voluntarily
consumed and the level of intoxication; or engaged in an illegal activity. New section 14H
provides that Part IIB applies to claims in which the statement of claim or complaint is
issued on or after the commencement of the section.
An apology not an admission of liability in certain cases
[6]. Inserts a new Part IIC consisting of new sections 14I to 14L
dealing with the legal effect of an apology in civil proceedings.
New section 14J provides that in civil proceedings the giving of an
apology (such as saying 'sorry') does not in itself amount to an admission of
liability for the death or injury; or unprofessional conduct, carelessness, incompetence,
unsatisfactory professional performance (or any other regulatory standard, such as
'misconduct' or 'unsatisfactory conduct').
This new section does not render an apology inadmissible, where under
the general law the statement could be admitted or taken into account for another purpose.
New section 14K is in similar terms, in relation to a reduction or
waiver of fees payable for a service, or a related service, by a person. The reduction or
waiver of fees does not amount to an admission of liability for death or injury, or of
unprofessional conduct in civil proceedings.
New section 14L provides that this Part applies to an apology or a
reduction or waiver of fees made on or after the commencement of the provisions in new
Part IIC.
Limitation of damages for injuries
[7]. Inserts a new Part VB and deals with personal injury damages and
imposes caps on damages for loss of earnings and for non-economic loss. It also prescribes
a discount rate that courts are to apply to the calculation of lump sum awards for
damages.
New section 28C states that Part VB applies to all awards of personal
injury damages, except –
- those made in consequence of injuries that are caused intentionally (it should be noted
that intentional acts are usually excluded from insurance coverage);
- those made subject to specific legislative provisions set out in sub-section (2);
- sums payable under a superannuation scheme or any life or other insurance policy; and
- awards excluded by the regulations.
New section 28D ensures that courts must apply the conditions set out
in Part VB to all awards of damages. This section therefore limits the jurisdiction of the
Supreme Court, and new section 28J includes the statement of intention to do this required
under the Constitution Act 1975 and new section 28J declares that it is the
intention of section 28D to limit the jurisdiction of the Supreme Court. (Refer to
section 85 Constitution Act 1975 report below)
Loss of earnings limitation
New section 28F restricts awards of damages for loss of earnings to an
amount of weekly earnings from which the lump sum is calculated to not more than three
times average weekly earnings.
Limitation for non-economic loss
New section 28G restricts awards of damages for non-economic loss,
which is defined by section 28B to comprise pain and suffering, loss of amenities of life,
loss of enjoyment of life to a maximum amount of $371 380 (subject to CPI indexation).
New section 28I requires that the court use a prescribed discount rate
for the purpose of calculating any lump sum award of damages for future economic loss. The
prescribed rate is set at 5 per cent per annum, but may be varied by regulation.
New section 28L provides transitional provisions that apply to the new
Part.
Undue trespass to rights and
freedoms – Parliamentary Committees Act 1968, s.4D(a)(i)
The Committee notes that recovery of damages for injuries are
limited by creating a cap on loss of future earnings of three times average weekly
earnings and by creating a cap on general damages for pain and suffering and loss of
enjoyment of life (non-economic loss).
The Committee notes that the question whether it is justified
to limit damages for personal injuries under the Wrongs Act 1958 in the manner
contemplated by the Bill is a matter for Parliament to consider.
The Committee draws Parliament’s attention to the
provisions.
A court may order a structured settlement (periodic payments) |
[8]. Inserts a new Part VC consisting of new sections 28M and 28N
allowing a court, with the consent of all parties to a claim, to award a structured
settlement. A structured settlement is a settlement in which all or part of a damages
award is paid in the form of an annuity or annuities and may include a deferred lump sum.
Protection from liability of good samaritans
[9]. Inserts a new Part VIA dealing with the provision of protection
from liability for good samaritans who provide assistance in emergencies or accidents.
New section 31B provides that a good samaritan will not be liable in
any civil proceeding for any act or omission when providing assistance, advice or care in
good faith to another person in relation to an emergency or accident and new section 31D
declares that it is the intention of section 31B to alter or vary section 85 of the Constitution
Act 1975. (Refer also to section 85 Constitution Act 1975 report below)
The Committee notes the comments in the Explanatory Memorandum –
Where an emergency or accident is caused by a person who then acts
as a good samaritan in assisting persons involved in the accident or emergency, those acts
or omissions will be covered by the statutory protection. However, the statutory
protection will not cover any act or omission that occurs prior to the 'good samaritan'
activities.
The Committee notes the comments in the Second Reading Speech –
This Bill provides good Samaritans with protection from civil
proceedings where they have rendered assistance, advice or care in good faith to other
persons in an emergency or accident. Well-intended efforts voluntarily undertaken by
would-be rescuers, including health care professionals, are protected and encouraged by
this government.
The Bill covers the actions of any emergency worker, Country Fire
Authority (CFA) member or volunteer whose actions as good Samaritans are outside the scope
of the relevant acts that establish their duties and authorised activities.
The proposed Bill seeks to provide immunity from civil proceedings for
good Samaritans as long as they have acted in good faith. By providing an immunity with a
good faith requirement, it is proposed that the legislation will reflect the position of
rescuers or good Samaritans at common law and that the flexibility of the common law will be retained in determining whether a
person has acted in good faith in emergency-type situations. A flexible standard of care
in such circumstances will also provide for the differing competencies brought to the
scene by good Samaritans, including professional health carers.
Undue trespass to rights and
freedoms – Parliamentary Committees Act 1968, s.4D(a)(i)
The Committee notes that the Bill provides that a good
samaritan is not liable in any civil proceedings for any act or omission done in good
faith in providing assistance advice or care at the scene of an emergency.
The Committee notes that the inability of an injured person to
bring a civil action against a good samaritan for damages for personal injuries may limit
a persons common law rights and whether this is justified is a matter for
Parliament’s consideration.
The Committee draws attention to the provision.
Clarification as to exceptions as to immunity of good
samaritans from civil liability
The Committee notes that unlike the exceptions as to immunity
from civil proceedings noted in proposed section 38(1)(b) (see [11] below) for a volunteer
acting under impairment of drugs or alcohol, no similar exception is provided in the case
of a good samaritan acting under an identical impairment. The Committee will seek further
advice from the Premier as to why the exceptions provided in the Bill for volunteers
should not equally apply in the case of good samaritans. |
Food donor protection
[10]. Inserts a new Part VIB dealing with food donor protection.
New section 31F provides that in certain specified circumstances a
natural or a corporate person who donates food to a charitable organisation for
distribution free of charge is not liable in any civil proceeding for any death or injury
that results from the consumption of the food. The immunity does not protect a food
business that donates unsafe food. The donor must also advise the charity concerning safe
storage and processing of the donated food.
A person harmed by the consumption of donated food may still take
action against the donor if the food was unsafe when received by the charity.
New section 31H states that it is the intention of section 31F to alter
or vary section 85 of the Constitution Act 1975. (Refer also to section 85
Constitution Act 1975 report below)
Undue trespass to rights and
freedoms – Parliamentary Committees Act 1968, s.4D(a)(i)
The Committee notes that the provision only provides immunity
to a food donor where the donor did not intend that the consumer would pay for the food,
the food was safe for consumption at the time of donation and where the donor explained
the proper storage, handling and shelf life of the food.
The Committee notes that the question of whether the inability
of an injured person to join a food donor in civil proceedings for damages abridges a
persons common law rights is a matter for Parliament to consider.
Volunteers not liable for actions done in good faith |
[11]. Inserts a new Part IX dealing with volunteer protection.
The Committee notes the comments in the Second Reading Speech –
This Bill strikes a reasonable balance between the need to protect
volunteers against personal liability and the interests of those who suffer injury. This
balance is achieved by providing that a volunteer cannot be held personally liable for
anything done, or not done, in good faith by the volunteer while providing a service
within the scope of community work organised by a community organisation. However, the
personal liability that the volunteer would otherwise have had is transferred to the
community organisation.
New section 34 sets out the definitions used in the Part for
‘community organisation’ to ensure that volunteers who receive protection are
undertaking work on behalf of a community organisation that is a body corporate. The
definition of ‘community organisation’ also includes a municipal council and the
Crown.
New section 35 sets out the meaning of volunteer.
New section 36 sets out the meaning of community work. Community work
is broadly defined as work that is done for a wide range of purposes.
New section 37 provides that a volunteer cannot be held liable in any
civil proceeding for anything done, or not done, in good faith by the volunteer while
providing a service in relation to community work organised by a community organisation.
New section 37(2) also provides that any civil liability that the
volunteer would otherwise have had is transferred to the community organisation.
New section 38 makes it clear that there are exceptions that apply to
the immunity provided to volunteers under this Part. The protection will not apply to a
volunteer who knew or ought reasonably to have known, that at the relevant time he or she
was acting –
- outside the scope of the community work organised by the community organisation, or
- contrary to instructions given by the community organisation in relation to the
providing of the service,
- where the volunteer's ability to carry out the work properly was significantly impaired
by drugs or alcohol, and
- in respect of any claim to recover damages for defamation.
- in respect of proceedings brought under the Transport Accident Act 1986.
The Bill preserves existing protection from liability that a community
organisation may have arising from contractual arrangements with a third party.
New section 39 provides that the liability that would be incurred under
section 37 by a community organisation, that is a public authority or agency or another
person or body acting on behalf of the State, is incurred by the State.
New section 40 precludes a community organisation from entering into an
arrangement which would entitle it to seek an indemnity or contribution from a volunteer
in respect of a liability of the community organisation arising out of the conduct of the
volunteer.
New section 41 is a transitional provision providing that section 37
only applies with respect to the provision of a service by a volunteer after the
commencement of the provision.
Undue trespass to rights and
freedoms – Parliamentary Committees Act 1968, s.4D(a)(i)
The Committee notes that the Bill provides an immunity from
civil proceedings against a volunteer for any act or omission done in good faith in
relation to community work organised by a community organisation and that any liability
that would have arisen by the volunteer attaches to the community organisation instead.
The Committee notes the exceptions to the immunity in proposed
section 38 concerning acting outside the scope of the work, acting contrary to
instructions or acting under impairment of drugs or alcohol.
The Committee notes that the question whether the inability of
an injured person to personally join a volunteer in proceedings for damages is justified
is a matter for Parliament’s consideration.
The Committee draws attention to the provision. |
Part 3 – Amendments to the Coroners Act 1985
[12]. Inserts a new section 18A providing that in an investigation of a
death under the Act the giving of an apology (such as saying 'sorry'); or reducing or
waiving fees that are payable for a service provided to the person who has died does not
constitute an admission for the purposes of a finding under section 19 of that Act,
regarding the cause of death or as to how the death occurred.
This provision does not prevent a coroner from taking an apology into
account for a different purpose. In addition, it also does not affect the admissibility of
a statement accompanying or forming part of an apology, with respect to a fact in issue.
Part 4 – Amendments to the Food Act 1984
[13]. Amends section 4 to provide that food that is donated for
charitable purpose is not to be taken to be food given away for the purpose of
advertisement or the furtherance of trade or business.
Part 5 – Amendments to the Goods Act 1958
Risky sporting and recreational activities – waiver of implied
conditions
The Committee notes the comments in the Second Reading Speech –
The Bill will strike the right balance between risks inherent in the
supply and participation in recreational services.
This Bill amends the Goods Act in line with proposed amendments to the
Commonwealth's Trade Practices Act, which has similar implied conditions, to allow waivers
for recreational services. All providers of recreational services in Victoria will then be
able to use the waivers.
The Bill goes further than the Commonwealth's proposed amendments, and
ensures that some consumer protections are preserved. A waiver will not be effective if
the provider is grossly negligent, meaning that the provider has done an act or has
omitted to do something with a reckless disregard for the consequences, the provider has
not complied with a prescribed form of waiver or the provider has made a false or
misleading statement in relation to the waiver.
[16]. Inserts a new section 97A to provide that sellers of
'recreational services' may in certain circumstances limit their liability under sections
95* or 97** of the Act for death or personal injury arising from the sale of those
recreational services.
*Section 95 – terms
of sale that purport to exclude, restrict or modify certain provisions in the Act.
**Section 97 – liability for damages not to be excluded or limited.
The clause provides that the seller cannot
rely on a term limiting liability where the seller has done an act or omitted to do
something and that act or omission was done with reckless disregard, with or without
consciousness, for the consequences of the act or omission.
Part 6 – Amendments to the Essential Services Commission Act
2001
This Part makes a series of amendments that enable the Essential
Services Commission (ESC) to collect information from the insurance industry and provide
advice to Government on that industry. The general powers of the ESC under the Essential
Services Commission Act 2001 apply to these functions, except where explicitly
excluded.
[20]. Inserts new sections 10A and 10B to provide for the functions of
the ESC in relation to the insurance industry and the statutory insurers.
[21]. Amends section 37 to provide that employees of statutory bodies
are not guilty of an offence if they provide information to the ESC in respect of a
requirement by the ESC under section 10A, provided that the information does not disclose
the identity of individuals.
Section 85 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).
[7, 9 and 10]. New sections* 28J, 31D and 31H respectively make
declarations that new sections 28D (Limitation on court awards of damages), 31B
(Immunity for good samaritans) and 31F (Immunity for food donors) are intended
to alter or vary section 85 of the Constitution Act 1975.
The Committee notes the section 85 Constitution Act 1975 statement
in the Second Reading Speech –
Limitations for damages for personal injuries
Clause 7 of this Bill proposes to insert new sections 28D and 28J
into the Wrongs Act 1958. Section 28J states that it is the intention of section 28D to
alter or vary section 85 of the Constitution Act 1975. Section 28D provides that a court
cannot award damages to a claimant contrary to new part VB of the Wrongs Act 1958. Section
28D therefore has the effect of limiting the Supreme Court's ability to determine the
amounts that may be awarded in respect of both non-economic and economic losses in claims
for damages for death or injury.
The purpose of part VB is to restrict the amounts of damages that
defendants will be liable to pay if they have been found negligent. In order for this
purpose to be achieved it is essential that this limitation applies to the Supreme Court.
This will ensure that defendants, and their insurers, can be confident of the maximum
liability they will face for these categories of damages in the event of a successful
claim.
Immunity for good samaritans
Clause 9 of this Bill proposes to insert new sections 31B and 31D
into the Wrongs Act 1958. Section 31D states that it is the intention of section 31B to
alter or vary section 85 of the Constitution Act 1975. Section 31B provides that good
Samaritans acting in good faith in the circumstances set out in the section are not liable
in civil proceedings for anything done, or not done, by them. It therefore has the effect
of preventing the Supreme Court from exercising its jurisdiction in relation to certain
possible claims arising from the activities of good Samaritans.
The purpose of section 31B is to encourage members of the community to
come to the aid of people in need of assistance in situations of emergency or accident. In
order for this purpose to be achieved it is vital that the immunity that the section
provides to good Samaritans applies to the Supreme Court. This will ensure that good
Samaritans can act confident in the knowledge that they will not be liable in civil
proceedings before that court for any mistakes that they make in good faith in trying to
help someone in the circumstances set out in the section.
Immunity for food donors
Clause 10 of this Bill proposes to insert new sections 31F and 31H
into the Wrongs Act 1958. Section 31H states that it is the intention of section 31F to
alter or vary section 85 of the Constitution Act 1975. Section 31F provides that a person
donating food in the circumstances set out in the section is not liable in any civil
proceeding for any death or injury that results from the consumption of the food.
It therefore has the effect of preventing the Supreme Court from
exercising its jurisdiction in relation to certain possible claims arising from food
donations.
The purpose of section 31F is to encourage members of the community to
donate for charitable purposes edible food that they do not want, rather than to throw it
away. In order for this purpose to be achieved it is vital that the immunity that the
section provides to food donors applies to the Supreme Court. This will ensure that food
donors can donate food confident in the knowledge that any incident arising from food that
they donate in good faith in the circumstances set out in the section will not expose them
to civil liability in that court.
The Committee refers to comments made
separately under clauses 7, 9 and 10 above concerning limitations of damages for personal
injuries or death and immunity from civil proceedings for good samaritans and food donors.
Subject to Parliament’s consideration whether these
provisions are appropriate limitations and immunities the Committee reports that it has
examined the proposed section 85 Constitution Act 1975 clauses, notes the Minister’s
statements in the Second Reading Speech and accepts that the provisions are consistent
with the purposes of the Bill.
The Committee makes no further comment. |
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