| Alert Digest No. 9 of 2002 Tuesday, 29 October 2002 |
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| Child Employment
Bill
Introduced: 9 October 2002 The Bill reforms the law relating to the employment of children under the age of 15. Content and Committee comment[Clauses] [2]. The Act comes into operation on proclamation but not later than 1 July 2003. [3]. Defines "child" for the purposes of the Act as a child under the age of 15. The clause also defines ‘entertainment’. [4]. Defines "employment" for the purposes of the Act. The clause also provides examples of activities that do not constitute employment for the purposes of the Act. [5]. Defines "light work" for the purposes of the Act and provides examples of light work. [7]. A child may be employed, (a) in accordance with a permit or (b) in a family business (see clauses 22 to 24). [8]. It is an offence for an employer to employ a child, or a parent to allow their child to be employed, without a permit. This clause does not, however, apply to the employment of a child in a family business. Age limits [9]. Under 11 years - a person must not employ a child under 11 years.
Employment during school hours prohibited [10]. Makes it an offence to employ a child during school hours on a school day unless the Minister for Education and Training has exempted the child from attendance under the Community Services Act 1970. This offence also applies to parents who employ their own children in a family business and to others who employ children. It also makes it an offence for a parent or guardian to allow a child to be employed, whether for a family business or for another employer, if the nature of the employment is such that it will prejudice the child's attendance at school or their capacity to benefit from instruction. [11]. Makes it an offence to employ a child in door to door sales; deep-sea fishing; the building and construction industry prior to lock-up stage. The clause also gives the Governor in Council the power to declare a kind of employment to be prohibited employment. This will allow the Governor in Council to declare any industry or type of work to be prohibited employment. Permits and processes for children to engage in employment [12]. States that a parent or guardian may apply for a child employment permit. The parent or guardian is responsible for applying for a permit prior to a child being employed. [13]. Details what a child employment permit application must contain the signed consent to a police check of the criminal record of the employer and each person who will supervise, tutor or chaperone the child. [14 and 15]. Details the process the Secretary must undertake in assessing a permit application and the criteria to be used in this assessment. [16 and 17]. The Secretary has power to place conditions on a permit, to vary or cancel a permit at any time by providing notice in writing to the parent or guardian. Only light work and limited hours of work permitted [18]. Provides a restriction on the employment of children to light work only. [19]. Restricts the number of hours a child can work and the hours of the day and night during which a child can be employed.
[20]. Provides that a child must receive a break of at least 30 minutes after every 3 hours of work and a break of at least 12 hours between finishing one shift and commencing the next. The break may be paid or unpaid. [21]. Makes it an offence to employ a child in contravention of the conditions in the Act. Employment in a Family Business [22]. A child may be employed in a family business without a permit; however, a child cannot be employed in prohibited employment. [24]. Makes it an offence for a parent or guardian to employ a child in a family business if the parent or guardian does not directly supervise the child. Employment in Entertainment and mandatory codes of practice [25]. A child may be employed in entertainment in accordance with a permit. [26]. The provisions relating to age limits [9], hours of work [19] and rest breaks [20] do not apply to employment in entertainment. [27]. Requires the Minister to make a mandatory code of practice for the employment of children in entertainment. [28]. Provides that the mandatory code will contain provisions that regulate the employment of children in entertainment and that the code may apply, adopt or incorporate any other document. As in force at a particular tome or as in force from time to time. [29]. Provides that the code is made by order published in the Government Gazette and that it will take effect on the day that the order is published or on a later day specified in the order. [30]. Makes it an offence for an employer to contravene the mandatory code with penalties applying of 100 penalty units for corporations and 60 penalty units for individuals.
Other restrictions [33]. Makes it an offence for a person to cause or permit a child to do any of the following things if they are not light work –
This clause does not apply to parents or guardians merely because they permit their child to engage in activity that is being conducted or supervised by another person or body (as above). [34]. Makes it an offence for a non-profit organisation to employ a child in door-to-door fundraising activities or in any work in a public place between the hours of 6.00 p.m. (or sunset, whichever is earlier) and 6.00 a.m. (or sunrise, whichever is later) unless the child is accompanied by an adult. Compliance [35 to 37]. Sets out the functions, appointment of and identity cards of child employment officers. [38]. States that a compliance power may be exercised to investigate an application for a permit or in determining compliance with the Act.
[39]. Allows child employment officers to enter any premises identified in an application for a permit as an intended workplace of a child or where they have reasonable grounds for believing that a child is or has been performing work. Entry must be without force and should occur during ordinary working hours. The clause requires certain information to be given to the occupier where the occupier is present and is not present at the time of entry. Entry to any part of any premises used for residential purposes is only with the signed consent of the occupier, however consent is not required where any part of the premises is used both for residential purposes and for work. [41]. Allows a child employment officer to require by written notice the production of a document for the purposes of investigating an application for a permit or determining compliance with this Act. [43]. Allows a child employment officer to apply for a search warrant and sets out the conditions under which a magistrate may issue a search warrant pursuant to the rules, forms and procedures found in the Magistrates’ Court Act 1989. [44 and 45]. Requires a child employment officer to announce that he/she is authorised to enter a premises before executing a search warrant unless he/she believes that immediate entry is required to ensure the safety of a person or to ensure that the effective execution of the warrant is not frustrated. A copy of the warrant must be given to the occupier. [47]. It is an offence to fail to produce documents or hinder child employment officers, and to give false information or false or misleading documents to child employment officers. Privilege against self-incrimination [48]. Provides that a person may refuse to give information or produce a document to a child employment officer, on the grounds that it may incriminate them. This does not apply to a document if it is a document the person is required to keep under the Act or the regulations. [52]. Allows the Secretary to delegate any of the powers of the Secretary under this Act to a child employment officer [36] except the power of delegation.
[53]. Allows the Governor in Council to make regulations, including in relation to requirements to keep and maintain documents and records and to give effect to the purposes of the Act.
[54]. Repeals Division 9 of Part III of the Community Services Act 1970, these being the current provisions relating to child employment. Amongst the provisions in the Division to be repealed is section 78 which makes it an offence to cause or procure a child to beg or receive alms or to induce or allows a child to perform or sing for such a purpose.
The Committee makes no further comment.
Country Fire Authority (Volunteer Protection and Community Safety) Bill Introduced: 9 October 2002Second Reading Speech: 10 October 2002 House: Legislative Assembly Minister introducing Bill: Hon. A. Haermeyer MLA Portfolio responsibility: Minister for Police and Emergency Services Purpose The Bill makes amends the Country Fire Authority Act 1958 (the ‘Act’) to strengthen the legal protection and compensation provided to volunteers and paid members of the Authority and also to provide an improved means of protecting community safety through the provision and clarification of the operational and regulatory powers of the Authority. Content and Committee comment [Clauses] [2]. The provisions in the Bill (other than proposed sections 12(1) & (2) commence on the day after Royal Assent. The Bill provides for the retrospective commencement of sections 12(1) & (2) on 30 June 1992. This is necessary to ensure the validity of the Country Fire Authority Regulations 1992.
[8]. Amends section 64 of the Act, to provide the Authority with the power to determine the amount of compensation payable to volunteers for loss or damage of wearing apparel or personal effects. Immunity provisions against personal civil liability [9]. Substitutes sections 92 and 92A with a new section 92 to clarify and restate the civil liability immunity protection for CFA officers, brigade members and volunteers for acts performed in good faith. Any liability attaches instead to the Country Fire Authority. [10]. Substitutes section 95 of the Act, to clarify and improve the civil liability immunity protection for any persons complying with a direction given under the Act or exercising a power under the Act. The protection will apply to all acts or omissions performed under the Act which are carried out in good faith. Any liability attaches instead to the Country Fire Authority. New regulation making powers concerning entitlement to compensation [12]. Sub-clause (1) amends section 110(1) of the Act (the regulation making power) and substitutes paragraph (g) and inserts new paragraphs (ga) and (gb) to provide for entitlements of brigade members and volunteers and their families, dependants and domestic partners and other like matters relating to compensation. Sub-clause (2) repeals section 110(4) which refers to the old section 110(1)(g). Sub-clause 12(3) deems the Country Fire Authority Regulations 1992 (SR. No.180/1992) to have been made as though section 12(1) and (2) had been in force when the regulations were made (Also see comment at clause 2 above). The Committee makes no further comment.
Courts Legislation (Judicial Pensions) Bill Introduced: 9 October 2002Second Reading Speech: 10 October 2002 House: Legislative Assembly Minister introducing Bill: Hon. R. Hulls MLA Portfolio responsibility: Attorney-General Purpose The Bill amends the Constitution Act 1975 and the County Court Act 1958 to enable prior service as a judge in a Federal or State or Territory Court (except the Federal or a State Magistrates' Court) to be taken into account for the purpose of accruing an entitlement to a judicial pension in Victoria. It also provides that where the relevant prior federal or interstate service commenced prior to 18 May 1995, the individual will be entitled to a judicial pension in Victoria after 10 years service on reaching the age of 60 years. The Bill states that the amount of the Victorian pension shall be reduced by the amount of the other jurisdiction's pension. Content and Committee comment [Clauses] [2]. Provides that the provisions in the Bill are deemed to have commenced on 10 October 2002. The date is the day of the announcement on the provisions in the Bill made in the course of the Second Reading Speech. [3]. Amends section 83(6) of the Constitution Act 1975. This amendment concerns prior service as a judge by persons appointed as Judges of the Supreme Court of Victoria. The purpose of this amendment is to enable prior judicial service in federal, State or Territory Courts (save for Magistrates' Courts) to be taken into account for the purpose of accruing an entitlement to a judicial pension in Victoria. [3]. Amends section 83(4) of the Constitution Act 1975 to provide that the amount of the Victorian pension shall be reduced by the amount of the federal or interstate pension, where there is an entitlement to a pension under the Victorian legislation and to a pension from another jurisdiction relating to prior judicial service at the federal level or outside Victoria. [4]. Amends the County Court Act 1958 to make similar amendments as those contained in [3] except that these pertain to the pension entitlements of Judges of the County Court of Victoria. The Committee makes no further comment.
Crimes (Stalking and Family Violence) Bill Introduced: 9 October 2002 Purpose The Bill amends the Crimes Act 1958 with respect to the offence of stalking to ensure –
The Bill also amends the Crimes (Family Violence) Act 1987 to ensure that intervention orders can be made by consent; and to validate certain orders made by consent before the commencement of this Act. Content and Committee comment [Clauses] [2]. The provisions in the Bill come into operation on the day after Royal Assent. Crimes Act 1958 [3]. Extends the definition of ‘course of conduct’ to ensure that it covers cyberstalking. [4]. Amends section 21A(2) and (3) by removing the requirement that a course of conduct that may constitute stalking must result in physical or mental harm to the victim or apprehension or fear in the victim for his or her safety. The Committee notes the comments in the Second Reading Speech –
[5]. Inserts new subsections (6) and (7) in section 21A to give the offence of stalking extra-territorial operation. As a result of this clause, section 21A will apply to a person overseas or interstate who stalks a victim in Victoria and a person in Victoria who stalks a victim overseas or interstate. [6]. Inserts a new section 598 to provide that the amending Act only applies to offences alleged to have been committed on or after the commencement of the amending Act. The clause also provides that the parties involved in the case of DPP v. Sutcliffe (currently before the Court of Appeal) which involves the interpretation of whether section 21A(2) has extra-territorial operation are not to be prejudiced by the amendments made by this Act. Amendments to the Crimes (Family Violence) Act 1987 [7]. Substitutes section 14 which allows a court to make an intervention order if the parties to the proceeding consent to the making of the order. [8]. Inserts a new section 25AB(1) to validate intervention orders made before the commencement of these amendments which were made with the consent of the parties, without the court necessarily being satisfied of any of the matters in section 4(1), may not be ruled invalid merely because they were made in this manner. New section 25AB(2)(a) protects the rights of the parties to the proceeding in the Supreme Court decision of Stephens v Melis & Ors in which an intervention order was held to be invalid on the grounds that it was made with the consent of the parties without the court being satisfied of any of the matters referred to in section 4(1).
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) [9]. Inserts a new section 25B(2) to provide that the validation of certain orders provided for by clause 8 is intended to alter or vary section 85 of the Constitution Act 1975. New section 25B(2) is necessary as the Bill validates existing intervention orders and removes an avenue of appeal that was potentially available to recipients of intervention orders who were convicted of a breach of that order before the commencement of the amendments made by the Bill. The Committee notes the section 85 Constitution Act 1975 statement in the Second Reading Speech –
The Committee makes no further comment.
Dandenong Development Board Bill Introduced: 9 October 2002 Purpose The Bill establishes the Dandenong Development Board (the ‘Board’) to facilitate the development of the Dandenong region. Content and Committee comment [Clauses] [2]. The Bill comes into operation on proclamation but not later than 1 January 2003. [5]. Establishes the Board as a body corporate. [6]. Sets out the functions of the Board including to facilitate development of Dandenong as a key centre for employment and services for south-east Melbourne. [7]. Sets out the powers of the Board. [8]. Provides that the Board is subject to the direction and control of the Minister. [9]. Provides that the Board may delegate any of its functions and powers, other than the power of delegation to any member of the Board, the executive officer or with the approval of the Minister any member of the Council staff of the Greater Dandenong City Council or employee of the Department of Infrastructure.
[10 and 11]. Provides for the constitution of the Board and provides for the terms and conditions of office of members appointed to the Board. [17]. Requires a member to disclose any interest that might conflict with the member's duty in relation to a matter being or about to be considered by the Board. [18]. The Board may establish committees to assist it in its work and co-opt any person to such a committee. [19]. Provides for the employment of an executive officer of the Board. [21 to 24]. Deal with corporate plans of the Board. [26]. Provides for the Bill to expire on 30 June 2010. The Committee makes no further comment.
Education and Training Legislation (Miscellaneous Amendments) Bill Introduced: 9 October 2002 Purpose The Bill amends various Acts related to education and training. Content and Committee comment [Clauses] [2]. A number of provisions come into operation on Royal Assent. The remaining provisions are to commence on proclamation but not later than 1 February 2003. [4]. Substitutes a new section 4(12) of the Education
Act 1958 so that the Secretary may delegate to any person any power or function of
the Secretary under that Act, except the power of delegation and powers under section 5A*. The clause also substitutes a new section 8(1) allowing the Minister to delegate to any person any power or function of the Minister under the Act, except the Minister's power of delegation, the power to issue guidelines or give directions to school councils and powers under sections 19A and 68 (acquisition of land). The current sections provide –
The Committee notes the comments in the Second Reading Speech –
Dismissal of teacher found guilty of sexual offence – Exemptions from dismissal – unregistered teachers [5, 6, 7, 8, 11 and 12] [5]. Amends section 15B of the Education Act 1958 which only applies to teaching staff employed by State school councils to provide that unless exempted by the Secretary, a person convicted or found guilty of a sexual offence against a child is not eligible for employment as a teacher by a school council and that the school council must dismiss any such person already employed. It further provides that a person is not eligible for employment as a teacher unless registered or permitted to teach by the Victorian Institute of Teaching; and that an unregistered teacher can be suspended without pay or dismissed, and if unregistered for 12 months is automatically dismissed unless on approved leave during that period. [6]. Inserts a new section 15BAA in the Education Act 1958 to enable a person employed by a State school council as a teacher who has been convicted or found guilty of a sexual offence against a child to apply to the Secretary for an exemption against disqualification from employment, or from dismissal. [8]. Replaces section 41A(7) of the Education Act 1958. The current section provides that teachers who are registered or permitted to teach by the Registered Schools Board and who are convicted or found guilty after 21 April 1998 of a sexual offence against children cease to be registered or permitted to teach and are disqualified from teaching. The new section 41A(7) has the effect that teachers are deregistered or not permitted to teach and are disqualified from teaching irrespective of whether the conviction or finding of guilt for a sexual offence occurred before, on or after 21 April 1998. [11]. Amends section 5 of the Teaching Service Act 1981 to provide that a person is not eligible for appointment to the teaching service if the person has ever been convicted or found guilty of a sexual offence against a child (unless exempted by the Secretary). It also provides that a person must be registered with the Victorian Institute of Teaching to be eligible for appointment to the teaching service. The provisions apply in the same way to temporary teachers (unless exempted by the Secretary). [12]. Inserts a new 65A in the Teaching Service Act 1981 to provide that the Secretary must dismiss any teacher convicted or found guilty (unless exempted by the Secretary) of a sexual offence against a child. New section 65B provides that appointees who are permanent teachers, temporary teachers and initial appointees who are convicted or found guilty of a sexual offence against a child may apply to the Secretary for an exemption from dismissal. New section 65C is also inserted in respect of permanent teachers and provides that an unregistered teacher can be suspended without pay by the Secretary, and that the teacher is automatically dismissed if he or she remains unregistered for 12 months unless on approved leave during that period. Delegation powers [13]. Substitutes sections 76 and 77 and broadens existing delegation powers* in the Teaching Service Act 1981 so that (s.76) the Secretary may delegate to any person any power or function of the Secretary under that Act, except the Secretary's power of delegation, and (s.77) the Minister may delegate to any person any power or function of the Minister under that Act, except the Minister's regulation making power and the Minister's power of delegation. The current delegation provisions are –
*Refer to clause [4] above. [14]. Amends section 25 of the Victorian Institute of Teaching Act 2001 to provide that a person convicted or found guilty of a sexual offence against a child is automatically disqualified from teaching in a school, unless exempted by the Victorian Institute of Teaching, and in the case of a State school teacher, also exempted by the Secretary to the Department of Education and Training. The clause also replaces section 25(7) of the Victorian Institute of Teaching Act 2001 which currently provides that teachers convicted or found guilty after specified dates of a sexual offence against children are automatically deregistered. The particular date is 21 April 1998 for teachers currently registered with the Registered Schools Board and a future date to be proclaimed for State school teachers. The new section 25(7) has the effect that teachers are to be deregistered for such an offence irrespective of the date of the conviction or finding of guilt. [15]. Inserts a new section 51A in the Victorian Institute of Teaching Act 2001. This new section authorises the Victorian Institute of Teaching to grant an exemption to a person against the automatic disqualification from teaching for having been convicted or found guilty of a sexual offence against a child and sets out the criteria the Victorian Institute of Teaching must apply. [16]. Amends section 52 of the Victorian Institute of Teaching Act 2001 to provide a right of review to the Victorian Civil and Administrative Tribunal against a decision by the Victorian Institute of Teaching to exempt or not exempt a person from disqualification from teaching. [17]. Inserts a new section 27(2A) and (2B) in the Victorian Institute of Teaching Act 2001 to require the employer of a registered teacher and the Chief Commissioner of Police to immediately notify the Victorian Institute of Teaching if they become aware that a registered teacher has been charged with or committed for trial for a sexual offence against a child or convicted or found guilty of such an offence. [20]. Inserts a new 16(3) in the Victorian Qualifications Authority Act 2000 to enable the Victorian Qualifications Authority to delegate certain powers to registered education and training organisations.
The Committee makes no further comment.
Estate Agents and Sale of Land Acts (Amendment) Bill Introduced: 12 September 2002 Purpose This Bill amends the Estate Agents Act 1980 (the ‘Act’) and the Sale of Land Act 1962 to curb dishonest bidding practices by vendors and disruptive conduct by buyers' advocates at real estate auctions. An auctioneer will need to announce any ‘vendor bid’ and also the point at which the reserve price has been reached (if reached) at the auction. The Bill also amends the Act to prohibit estate agents from retaining monetary or non-monetary rebates, commissions or benefits paid in relation to outgoings purchased by the agent on behalf of a client. The amendments will require the benefit of these rebates to be passed on to the consumers of estate agency services. The cap of $250,000 for the 3 day ‘cooling-off’ rule is abolished for private purchase (non-auction) of residential property. The Bill will also create new offences in relation to underquoting and overquoting the value of real estate and will require estate agents to record their estimated selling price on the authority or appointment form. The Bill removes the uncompetitive practices identified by the National Competition Policy review of the Act, including removing the restriction on commission sharing, removing the restriction on agents' representatives being employed by more than one estate agent and removing the requirement that at least 50% of the directors of a corporation applying for an estate agent's licence be licensed. Content and Committee comment [Clauses] [2]. Some provisions commence on Royal Assent the remaining provisions come into force by proclamation but not later than by 1 December 2003. Section 21 comes into operation on 1 July 2005. Amendment of Sale of Land Act 1962 Prohibition on dummy bidding [3]. Inserts a new Division 4 consisting of new sections 36A to 36N dealing with public auctions. New section 36B prohibits a vendor making a bid at a public auction of land and prohibits a person making a bid on behalf of a person knowing that person is the vendor. New section 36C prohibits an auctioneer from accepting a bid if he or she knows the bid was made by, or on behalf of, the vendor or from acknowledging a bid when he or she knows that no bid was made. New section 36D prohibits a person procuring another person to make a bid at a public auction that is contrary to section 36B. New section 36E allows an auctioneer, despite section 36B, to make a bid on behalf of the vendor in specified circumstances. New section 36F prohibits a person from falsely claiming to have made a bid or falsely acknowledging that he or she has made a bid. New section 36G requires the auctioneer to make a copy of the conditions under which the auction is to be conducted available for inspection at the location where the auction is to be held by any person attending the auction. New section 36H requires the auctioneer as soon as possible after becoming aware that the bidding has reached the vendor's reserve price to announce that that price has been reached. New section 36I enables a purchaser of land at a public auction to make an application to the Victorian Civil and Administrative Tribunal for compensation from any person who fails to comply with the provisions relating to public auctions in Division 4, except section 36L (disruption of auction). New section 36J states that any auction conditions that are contrary to, or that purport to restrict or modify, any requirement imposed by the new Division 4 are void. New section 36L deals with disruptive actions by bidders and others at a public auction. Section 36M enables the Governor in Council to make regulations relating to public auctions of land. The regulations may impose penalties of up to 20 penalty units. Private sale – cap on property value for cooling-off period abolished [4]. Removes the $250,000 cap on a purchaser's right to cool-off at any time within 3 business days for land purchased by private treaty. Amendment of the Estate Agents Act 1980 (the ‘Act’) [6]. Inserts new sections 47A to 47D. Estimated selling price Section 47A requires that, before obtaining a person's signature on an engagement to sell real estate, an estate agent must ensure that the engagement states the agent's estimated selling price. New section 47B prohibits an estate agent or agent's representative making a false representation to a seller or prospective seller as to the estimated selling price. New section 47C prohibits an estate agent or agent's representative from stating, while marketing the property, an estimated selling price that is less than the estimated selling price stated in the engagement. Rebates to be passed on to client [8]. Inserts new sections 48A to 48E dealing with rebates received by estate agents from another person in respect of any outgoings, prepayments, or any payments made by the client to another person, in respect of the estate agency work to be performed by the estate agent on the client's behalf. [10]. Inserts new sections 95A to 95E. These sections will enable infringement notices to be issued in respect of offences under the Act that are specified by the regulations. [11]. Amends the regulation-making powers of that Act to enable the making of those regulations. [17]. Inserts new sections 12A, 12B and 12C to allow the Director to apply to the Magistrates' Court for an order that an unlicensed person stop conducting estate agency business or from disposing of property relating to such a business. [21]. Substitutes a new section 15(1) providing that a corporation is not eligible to be licensed unless the officer in effective control of the estate agency business is licensed. This provision will not come into operation until 1 July 2005. [28]. Substitutes section 29B and inserts a new 29C that details the duties of agents and officers in effective control. [30]. Inserts new section 31CA to enable a corporation to apply to be able to be granted, or to continue to hold, an estate agent's licence even though it would otherwise be disqualified from being granted, or holding, the licence. Disallowable instruments – Professional development requirements [33]. Inserts new sections 45, 45A and 45B. New 45 allows the Director by notice published in the Government Gazette to require estate agents and agents' representatives to undertake specified training and professional development activities. New section 45A provides that any requirements must be tabled in Parliament and may be disallowed by either House. Part 5 (scrutiny, suspension and disallowance) of the Subordinate Legislation Act 1994 apply to any requirements as if they were statutory rules within the meaning of that Act. New section 45B provides that the requirements are to be published on the internet. [35]. Substitutes a new section 48 and removes the prohibition on an estate agent sharing a commission, but requires the estate agent to inform clients that a commission will be shared. [36]. Amends section 55 dealing with an agent (or employee, partner or representative of an agent) purchasing property from their client. The person may seek permission in writing from the Director to purchase such a property where it is not against the interests of the owner of the real estate for the agent to make that purchase. Penalties of up to 120 penalty units ($12,000) are inserted for offences under this section. [37 to 46]. Make amendments concerning trust accounts and audits. Orders requiring information to be given [48]. Inserts new sections 70A to 70E which make amendments concerning how compliance with the Act may be monitored and enforced. New section 70A deals with orders requiring the supply of certain information, in writing or orally, to the Magistrates’ Court relating to an estate agents business. Self-incrimination New section 70B contains a protection against self-incrimination .The privilege does not apply in respect to certain documents required to be kept under Part VI (accounts and audit). [49]. Inserts new sub-section 91(2) and creates new offences of fraudulent conversion, accounting and rendering of accounts involving agents representatives and employees of an estate agent business. [50]. Amends the regulation-making powers by inserting a new section 99(b) which enables regulations to be made requiring estate agents to give consumers information about estate agency services. The Committee makes no further comment.
Gas Industry (Residual Provisions) (Amendment) Bill Introduced: 9 October 2002 Purpose The Bill amends the Gas Industry (Residual Provisions) Act 1994 (the ‘Act’) to provide for the transfer of certain property, rights and liabilities of Gascor to another State owned entity. Content and Committee comment [Clauses] [2]. The provisions in the Bill come into operation on the day after Royal Assent. [3]. Amends the Act by inserting a new Part 14 entitled 'Transfer of Certain Property of Gascor' containing new sections 116 to 127. Section 116 sets out definitions for terms used in Part 14 of the Act including definitions of the property, rights and liabilities of Gascor to be transferred. In general terms the items to be transferred comprise a bundle of assets and potential liabilities relating to the fire and explosions on 25 September 1998 at the gas processing plant at Longford and to litigation that followed this event. Section 117 provides that the Longford assets and Longford liabilities are to be transferred as a bundle in one transaction despite anything to the contrary in section 6 of the Interpretation of Legislation Act 1984. Section 118 enables the Minister to nominate a person as the transferee. Section 119 provides that the Longford assets vest in the transferee and Longford liabilities become liabilities of the transferee on the date fixed by the Minister under section 116(2). Section 122 provides that on transfer under section 119 of Gascor's rights and liabilities under an agreement the transferee becomes a party to the agreement instead of Gascor and the agreement has effect from the date of transfer as if the transferee had always been a party. Section 127 provides that anything done under Part 14 of the Act is valid and does not constitute a breach of contract or confidence or an offence or default under any Act, nor does it give rise to a right or remedy for termination of an agreement or obligation. The Committee makes no further comment.
Health Legislation (Amendment) Bill Introduced: 16 October 2002 Purpose The Bill makes miscellaneous amendments to the –
Content and Committee comment [Clauses] [2]. Except section 5 the provisions in the Bill come into operation on the day after Royal Assent. Section 5 comes into operation on a day to be proclaimed but not later than 1 June 2003. [4]. Amends section 141 of the Health Services Act 1988 which provides that information must generally be kept confidential if a patient could be identified from that information, except for a number of specific authorisations. It makes clear that section 141 applies only to the giving of information to third parties and not to communications between staff of the same health service as these are governed by Health Privacy Principle 2 of the Health Records Act 2001. It clarifies that where a patient consents to the release of identifying information, that consent may be express or implied, reflecting current law. Section 141(3) is amended to specify the details of 4 of the circumstances in which a health service can disclose patient information. These disclosures are necessary to enable health services to carry out and exercise their functions and powers. The circumstances are where the disclosure of patient information –
[5]. Inserts a new section 39A in the Human Tissue Act 1982 to allow prescribed tissue banks to recover reasonable costs in relation to certain activities undertaken in accordance with that Act. It also clarifies that the offence provisions in that Act relating to the buying or selling of human tissue do not apply in those circumstances. [7]. Amends sections 11 and 12 of the Lord Mayor's Charitable Fund Act 1986 to allow members of the Fund's Board to have a term of office of two years rather than one and [8] provides transitional arrangements for the appointment of members. [9]. Amends the Mental Health Act 1986 to provide that in exercising the power of apprehension under section 10 of that Act, in addition to acting on the advice of a registered medical practitioner, Victoria Police may also act on the advice of a mental health practitioner. [10]. Amends section 120A of the Mental Health Act 1986 to make similar provision as in [4] relating to patient information for psychiatric services as other health services. The amendments –
The Committee makes no further comment.
Highway Authority Protection Bill Introduced: 8 October 2002 Purpose The Bill provides immunity for non-feasance to protect highway authorities. Content and Committee comment [Clauses] [2]. The provisions in the Bill come into operation on proclamation but not later than 31 December 2002. [3]. Provides definitions and includes a definition for "non-feasance", meaning where a highway authority creates a foreseeable risk of injury or loss and damage by failing to make or repair a public highway or part of a public highway over which that highway authority has the care and management. [4]. Provides an immunity to Highway Authorities by providing that no proceedings may be brought against a highway authority to recover damages in respect of any failure by the highway authority to make or repair a public highway or part of a public highway over which that highway authority has the care and management. The immunity is confined to the non-feasance of a highway authority and shall not affect any action arising from circumstances where a highway authority has negligently made or negligently repaired a public highway or part of a public highway over which that highway authority has the care and management.
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) [5]. Declares that it is the intention of section 4 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–
[Also refer to the Committee’s report on the Transport (Highway Rule) Bill also in this Alert Digest]. The Committee makes no further comment.
Limitation of Actions (Amendment) Bill Introduced: 16 October 2002 Purpose The Bill amends the Limitation of Actions Act 1958 (the ‘Act’) to abridge the time limit within which certain actions for damages for personal injuries can be brought from 6 years to 3 years. Content and Committee comment [Clauses] [2]. The Bill comes into operation on the day after Royal Assent. Abridgment of limitation period – personal injuries sections 5, 23 and 23A [3]. Sub-clause (1) amends section 5(1)(a) which establishes the general 6 year limitation rule by providing that it is now to be subject to the exceptions provided below relating to personal injuries (see textual amendments below). Sub-clause (2) inserts a new section 5(1AA) into the Act to provide that an action for damages for personal injuries may not be brought after the expiration of 3 years from the date on which the cause of action accrued. This shortens the limitation period for these actions from 6 years to 3 years. Sub-clause (3) amends section 5(1A) to limit the period for bringing actions for damages for personal injuries consisting of a disease or disorder to not more than 3 years from the date on which the cause of action is taken to have accrued. The amendments to section 5 made by the Bill are shown contextually below –
Abridged period not to apply to a person under a ‘disability’ Sub-clause (4) provides that section 23 (extension of the limitation period in case of person under disability (a minor or a person suffering mental or intellectual impairment)) of the Act is not subject to sections 5(1AA) nor 5(1A) as amended by this Act. The effect of this amendment is to ensure that the shortened limitation periods set out in sections 5(1AA) and 5(1A) do not apply under that section. The limitation period for a person under a disability will continue to be 6 years and will run from the date on which he or she ceases to be under a disability or dies. Discretion to extend period of limitation remains Sub-clause (5) amends section 23A which deals with the discretion of the court to extend the limitation period in respect of personal injuries proceedings. The amendment ensures that the discretion remains unchanged. The discretion may be exercised notwithstanding the abridgment of the limitation period as provided for in the Bill. 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) [4]. Inserts new sections 38 and 39 into the Act. New section 38 declares that it is the intention of section 5 of the Limitation of Actions Act 1958, as amended by the Bill to alter or vary section 85 of the Constitution Act 1975. The Committee notes the section 85 statement in the Minister’s Second Reading Speech–
Amendments apply only to actions accruing in the future [4]. Also inserts a new section 39 to provide that the amendments made to sections 5, 23 and 23A apply to causes of action that accrue on or after the commencement of [3] in the Bill. Note from the Explanatory Memorandum – Section 5(1A) of the Act currently provides that in the case of a latent disorder or disease, the cause of action shall be taken to accrue on the day on which the injured person first becomes aware that he or she suffers from the disease or disorder, and that this was caused by the act or omission of some person. This means that new section 39 will operate so that, in the case of a latent disease or disorder, the reduced limitation period in this Bill will only apply to those causes of action that are taken to have accrued on or after the commencement of section 3 of this amending Act. The Committee makes no further comment.
Major Events (Crowd Management) Bill Introduced: 9 October 2002 Purpose The Bill promotes the safety and enjoyment of participants and spectators at certain venues and access areas and major events. Content and Committee comment [Clauses] [2]. The Act comes into operation on proclamation but not later than by 1 July 2003. [3]. Defines a number of terms including "authorised officer" being a person who is a police officer or a person appointed under [25]. [4]. Provides that the venues listed are managed venues for the purposes of the Act. [5]. Provides that the events listed are major events for the purposes of the Act. Sub-clause (2) provides that the Minister may declare an event to be a major event by Order published in the Government Gazette, if it is in the public interest to do so. [6]. Provides that the Minister may declare an area adjacent to a managed venue to be a managed access area by Order published in the Government Gazette. [7]. Provides that the Minister must cause an Order made under this Part to be laid before each House of Parliament within 7 sitting days after the Order's publication in the Government Gazette. Power of inspection of bags etc. and use of screening devices [9]. Sub-clause (1) empowers an authorised officer (see clause 25) to request a person who intends to enter, or is in, a managed venue or managed access area to – (a) produce and open for inspection a bag, basket or other receptacle that is intended to be taken into or has been taken into a managed venue or managed access area; (b) walk through screening equipment, to allow an officer to pass hand-held screening equipment over or around the person or the person's things, and to allow the person's things to be passed through screening equipment or examined by X-ray. Sub-clause (2) provides that an authorised officer may direct a person not to enter a managed venue or access area if the person does not comply with a request under sub-clause (1). Sub-clause (3) provides that an authorised officer may direct a person to leave a managed venue or access area if the person does not comply with a request under sub-clause (1). Prohibited items [10]. Provides that persons must not have in their possession in a managed venue or managed access area without permission – (a) animals, other than a guide dog; (b) laser pointers; (c) distress signals; (d) dangerous goods; (e) whistles or loud hailers; (f) certain prohibited weapons or controlled weapons (cutlery is permitted); (g) bicycles, skateboards, roller skates, roller blades or scooters. A venue manager may also prohibit other items not listed above. Alcohol at managed venues to be regulated [11]. Provides that persons must not have any alcohol in their possession in a managed venue or managed access area that has not been purchased at the managed venue or managed access area unless the venue manager has authorised the possession of such alcohol. Surrender of prohibited items and alcohol [12]. Enables an authorised officer to request a person to surrender any item that the person wants to bring, or has brought, into a managed venue or managed access area in contravention of [10 or 11]. If a person refuses to comply with the request to surrender any item prohibited under [10 or 11], the authorised officer may direct the person not to enter the restricted area. A person who refuses to comply with a request to surrender an item under this clause may be directed by an authorised officer to leave the managed venue or managed access area and not re-enter for a period of 24 hours. Entry onto playing field prohibited [14]. Makes it an offence (10 penalty units, $1,000) for a person to enter a playing field, track or arena in a managed venue unless the person is otherwise authorised to do so. The section further makes it an offence (60 penalty units, $6,000) for a person, while on a playing field, track or arena in a managed venue, to disrupt, without reasonable excuse, a cricket match, football match, game, sport or event. Disruptive behaviour prohibited [15]. Enables an authorised officer to direct a person to leave a managed venue or managed access area and not re-enter for a period of 24 hours if the authorised officer believes that the person is disrupting or interrupting any match, game, sport or event or causing annoyance to spectators. [16]. Makes it an offence (20 penalty units, $2,000) for a person, contrary to a direction by an authorised officer under [9 or 12], to enter or attempt to enter the managed venue or managed access area for a period of 24 hours and makes it an offence (20 penalty units) for a person, contrary to a direction by an authorised officer under [9, 12 or 15], to fail to leave a managed venue or managed access area. 16(4) provides that a member of the police force may use no more force than is reasonably necessary in respect to powers under [9, 12 and 15]. Repeat offenders [17]. Deals with repeat offenders and provides that proceedings may be brought in the Magistrates’ Court to prevent certain persons convicted of offences under the Act, on more than one occasion (within a 5 year period) from entering for a certain period, a managed venue or managed access area in respect of a specified major event or series of major events. It is an offence for a person to enter a managed venue or managed access area in contravention of such an order. Infringement notices [18]. A member of the police force who believes that a person has committed an offence of entering a playing area under [14] may serve an infringement notice on the person. Authorised officers [25]. The Secretary may appoint a person to be an authorised officer if the person holds a particular licence under the Private Agents Act 1966 or is employed by a venue manager at a venue and is at least 18 years old. The appointment must be in writing and must specify the terms and conditions of the appointment. The Secretary may require the authorised officer to undertake special training before exercising any powers under the Act.
[26]. Provides that the Secretary must issue a photo identity card to each authorised officer appointed under [25]. The authorised officer must produce their identity card if asked to do so in order to perform a function under the Act. [27]. Provides that the Secretary may delegate any power under this Act, other than the power of delegation, to a person employed under Part 3 of the Public Sector Management and Employment Act 1998 or a body corporate established under an Act for a public purpose.
[28]. Provides a general regulation making power for the Governor in Council to give effect to the purposes of the Act.
[29]. Amends the Australian Grands Prix Act 1994 to enable the Australian Grands Prix Corporation to carry out functions conferred on it by other Acts, such as the provisions in the Bill. The Committee makes no further comment.
Melbourne Cricket Ground (Amendment) Bill Introduced: 9 October 2002 Purpose The Bill amends the Melbourne Cricket Ground Act 1933 (the ‘Act’) to make further provision regarding the management of the Melbourne Cricket Ground (the Trust) to make minor changes to the area of the MCG for the Northern Stand and to monitor the development of the Northern Stand. Content and Committee comment [Clauses] [2]. The provisions in the Bill come into operation on proclamation but not later than 31 December 2002. [4]. Amends section 5A(b) to enable the appointment of between 6 and 8 persons as members of the Trust by the Governor in Council on the recommendation of the Minister. [5]. Inserts new sections 7A(1) providing, that with the approval of the Minister the Trust is able to delegate by instrument any part of the functions and powers of the Trust to the Melbourne Cricket Club (the club), except this power of delegation. New section 7AB(1) provides that the Club, with the approval of the Trust is able to delegate the functions or powers delegated to it by the Trust to any person. The delegation must be made subject to any conditions or limitations that the Trust may specify. The delegated functions or powers when performed by the delegate are taken to have been performed or exercised by the Trust. The delegate must implement any policy made from time to time by the Trust in relation to any delegated functions and powers relating to management of the Ground. The policy cannot be inconsistent with any agreement appointing the Club as Ground Manager or with the lease to the Club.
[8]. Inserts a new section 8B in the Act to provide that the Trust is unable to delegate any functions and powers in relation to the development of the Northern Stand without the approval of the Minister. The Committee makes no further comment.
Outworkers (Improved Protection) Bill Introduced: 9 October 2002 Purpose The Bill provides protection for outworkers in the clothing industry and establishes the Ethical Clothing Trades Council of Victoria. Content and Committee comment [Clauses] [2]. The Act comes into operation on a day or days to be proclaimed but not later than by 1 July 2003. [3]. Sets out the definitions of terms used in the Act including a definition of ‘outworker’. [4]. Defines "relevant industrial legislation" for the purposes of the Act. [5]. Deems an outworker to be an employee for the purposes of relevant industrial legislation. Unpaid Remuneration [7]. An outworker may make a claim for unpaid remuneration by serving a written notice on the person that the outworker believes to be their employer (the apparent employer). The claim must be made within 6 months after the work is completed. [8]. An apparent employer is liable for the amount of unpaid remuneration claimed by the outworker unless the apparent employer refers the claim within 14 days to the person that the apparent employer believes is the actual employer of the outworker. [9]. An actual employer served with a referred claim may accept liability for some or all of the claim by paying the outworker and serving a written notice on the apparent employer of the acceptance of the claim and the amount paid. [11]. Creates an offence where a person intentionally hinders, prevents or discourages a person from making a claim for unpaid remuneration; makes a false statement in a notice with respect to liability for a claim for unpaid remuneration; serves a referred claim on a person where the employer does not know or have reasonable grounds to believe the person is an actual employer. [13] Deals with the liability of a principal contractor for remuneration payable to outworkers of subcontractors. Ethical Clothing Trades Council of Victoria [16]. Establishes an Ethical Clothing Trades Council of Victoria to advise and make recommendations to the Minister on the clothing industry and outworker practices in the industry. [17 and 18]. The Council is to consist of 7 part-time members appointed by the Minister. The Minister is to appoint an independent chairperson who has sufficient knowledge of outwork practices in the clothing industry. [19]. The Schedule outlines the constitution and procedure of the Council. [20]. The Council is to monitor whether outworkers are receiving their lawful entitlements and make quarterly reports to the Minister. [22]. The Minister may approve the Council using the services of staff or facilities of a government department. Mandatory Code of Practice (clauses 23 to 30) [23 to 25]. Allows for the making of a mandatory code of practice for the purpose of ensuring that outworkers receive their lawful entitlements. The mandatory code is to contain a requirement for employers or other persons engaged in the clothing industry to adopt the standards of conduct and practice set out in the code with respect to outworkers. The code may apply, adopt or incorporate a standard or other document prepared or published by a body specified in the code. The code must be published in the Government Gazette. [26]. Provides an offence for an employer or other person engaged in the clothing industry to fail, without reasonable excuse, to adopt any standard of conduct or practice set out in the code. However, the provisions of a common rule order that are applicable to outworkers prevail over the mandatory code to the extent of any inconsistency. [28]. The mandatory code must be available for inspection. [30]. Provides for the regulations to exempt any person or body or class of persons or bodies from the operation of the mandatory code or a specified provision of the code.
Entry and inspection powers of Information Services Officers (‘officers’) [33]. Allows officers to enter any premises without force where they have reasonable grounds for believing that outwork under a common rule order is being performed or outwork documents relevant to compliance with this Act or a common rule order are kept. An officer may only enter during working hours and may not enter any part of premises that are used for residential purposes without the informed consent of the occupier. [34]. Sets out the powers of officers in inspecting, taking samples of goods or interviewing outworkers or employees. (Refer to [46] for privilege against self-incrimination). [35]. Allows an officer to require, by written notice, the production of an outwork document for the purposes of determining compliance with this Act or a common rule order. Entry and inspection powers of authorised industrial officers (‘authorised officer’) [39]. Allows an authorised officer (an officer or employee of the Textile Clothing and Footwear Union of Australia (Victorian Branch) who holds an authority) to enter relevant premises, during working hours for the purpose of holding discussions during non-working time or investigating a suspected contravention of this Act, relevant industrial legislation or a common rule order that applies to outworkers. An authorised officer may require the production of outworkers' records and other documents. Where the circumstances require it, the Court may grant an authorised officer a waiver of the prior notice requirement before exercising a power on entry. [40]. Sets out the procedure on entry for an officer who enters any premises under a Court order. [41]. Allows the Court to issue an instrument of authority (for the purposes of this Act) to an officer or employee of the Union in accordance with the regulations. [42]. Allows an authorised officer to be denied access to premises on religious grounds where the employer and outworkers hold certificates of exemption and there are no more than 20 outworkers engaged. [43]. Provides that an authorised officer does not have authority to enter any part of premises that is used for residential purposes without the consent of the occupier. [44]. An authorised officer must not deliberately hinder or obstruct an employer, outworker or employee during working time. A person must not deliberately hinder or obstruct an authorised officer or fail to comply with a requirement of an authorised officer without reasonable excuse. Self-incrimination [46]. Provides for protection against self-incrimination in respect of information and documents other than in respect of documents required to be kept under the Act or the regulations. [52]. The Act is to be reviewed within 5 years. Regulations [53]. Enables the Governor in Council to make regulations in relation to any matter or thing permitted by the Act, including the prescribing of criteria for the issue of authority to industrial officers, and the prescribing of documents or records to be kept under the Act. The regulations may require penalties of up to 20 penalty units for a contravention of the regulations.
The Schedule sets out the constitution and procedure of the Council. The Committee makes no further comment.
Pay-roll Tax (Maternity and Adoption Leave Exemption) Bill Introduced: 16 October 2002 Purpose This Bill makes amendments to the Pay-roll Tax Act 1971 (the ‘Act’), to grant a new exemption from pay-roll tax in respect of paid maternity leave and paid adoption leave. From 1 January 2003 employers providing paid maternity or adoption leave are entitled to an exemption for any wages paid to an employee, up to a maximum of 14 weeks maternity leave or adoption leave. The maternity leave exemption is available in respect of leave provided to female employees. The adoption leave exemption is available in respect of leave provided to both female and male employees. Content and Committee comment [Clauses] [2]. Provides that the Act comes into operation on 1 January 2003. [3]. Inserts a new section 11 to provide an exemption from pay-roll tax available for any wages paid or payable to an employee for maternity leave; defined as leave given to a female employee in connection with the birth of her child; or adoption leave; defined as leave given to an employee of either gender in connection with the adoption of his or her child. Sub-section (2) provides that the exemption is available whether or not the leave is taken before or after the birth or adoption, or both before and after that event. Sub-section (3) limits the exemption to wages paid or payable for a maximum of 14 weeks maternity leave and 14 weeks adoption leave. Sub-section (4) clarifies the meaning of sub-section (3) by explaining that the 14 week maximum is available on a pro rata basis to full-time employees who take leave on less than full pay, and that for part-time employees the period of 14 weeks leave is limited to part-time rates of pay. Sub-section (5) excludes from the exemption any fringe benefits component of the wages paid or payable in respect of maternity or adoption leave. Sub-sections (6) and (7) require the employer to obtain medical certificates or statutory declarations in respect to the maternity or adoption leave. The Committee makes no further comment.
Planning and Environment (Metropolitan Green Wedge Protection) Bill Introduced: 9 October 2002 Purpose The Bill amends the Planning and Environment Act 1987 (the ‘Act’) to require ratification by both Houses of Parliament of amendments to subdivision controls in planning schemes applying to green wedge land around metropolitan Melbourne. Content and Committee comment [Clauses] [2]. The provisions in the Bill come into operation on the day after Royal Assent. [3]. Inserts a new Division 3A into Part 3 of the Act. New section 39A and 39B respectively defines what is meant by a metropolitan fringe planning scheme and green wedge land. New section 39D provides that ratification is required by Parliament for approved amendments (to which the new Division 3A applies) before they can take effect. The section also provides that sections 36, 37 and 38 of the Act (notice of approval, commencement of amendment and revocation by Parliament) do not apply to an amendment to which Division 3A applies. New section 39E provides that the Minister must lay an approved amendment before each House of Parliament within 7 sitting days of that House after it is approved. New section 39F requires that, following the ratification of an amendment the Minister must publish notification of the amendment in the Government Gazette specifying the place or places that may be inspected. The Committee makes no further comment.
Port Services (Amendment) Bill Introduced: 16 October 2002 Purpose The Bill amends the Port Services Act 1995 (the ‘Act’) to provide the Melbourne Port Corporation (MPC) with the ability to manage specified port waters, including the channels in those port waters. Content and Committee comment [Clauses] [2]. The provisions in the Bill come into operation on the day after Royal Assent. [4]. Amends section 12 of the Act by providing a further objective for the MPC to manage port waters referred to in the Governor in Council Order. [5]. Inserts a new section 12A in the Act which provides for the Governor in Council, through an Order in Council, to direct MPC to manage specified port waters. [6]. Amends section 13(1) of the Act to provide MPC with additional powers and functions necessary for it to manage specified port waters, if directed to do so by an Order in Council. [7]. Amends section 22 of the Act by expanding it to provide MPC with dredging powers in connection with carrying out its functions as a channel operator. The Committee makes no further comment.
Introduced: 9 October 2002 Purpose The Bill replaces the existing legislative scheme for retail tenancies to enhance certainty in the law that governs relationships between landlords and tenants in a retail setting and establishes mechanisms to resolve disputes between landlords and tenants. Content and Committee comment [Clauses] [2]. Provides that Part 1 comes into operation on the day after Royal Assent. Part 12 comes into operation immediately before the commencement of section 118. Section 50 comes into operation on 1 July 2003 (Section 118 repeals the Retail Tenancies Reform Act 1998). Part 13 is deemed to have come into operation at the last moment of 30 June 1998. The Part makes amendments to the already repealed Act (the Retail Tenancies Act 1986). The amendments take effect on the moment just before the repeal of the Act, which occurred on 1 July 1998. The remaining provisions come into operation on proclamation but not later than by 1 May 2003. See below for Part 12 and 13 relating to the retrospective effect of amendments. [4]. Defines the meaning of "retail premises" as premises which are used wholly or predominantly for businesses which involve trading of goods by retail or the retail provision of services or businesses determined by the Minister to be covered by the Act. [5]. Provides that the Minister may, by notice published in the Government Gazette, determine whether a business is or is not covered by the Act. The Minister's notice of determination is an instrument subject to disallowance by the Parliament and is subject to the tabling and scrutiny provisions of the Subordinate Legislation Act 1994. [11]. Provides that the Act applies to leases that are entered into after the commencement of the Act or leases renewed after the commencement of the Act. [12]. The Act does not apply to a lease of less than one year but does apply if the lease is one where it is initially for a period of less than one year but it is renewed one or more times so that the tenant is continuously in possession of the premises for more than one year. [13]. The Act applies to all leases that concern retail premises in Victoria, regardless of where the lease was made or any provisions of the lease to the effect that it is governed by other than Victorian law. Entering into a Retail Premises Lease (clauses 15 to 25) [16]. Provides a penalty for a landlord or tenant who enters into a lease that is not in writing. However, the lease is not illegal, invalid or unenforceable if it is not in writing. [17]. Requires the landlord to give the tenant a disclosure statement in accordance with the form contained in the regulations. The tenant can terminate the lease if any information provided by the landlord in the disclosure statement is shown to be misleading, false or incomplete, or if the tenant is not given a copy of the lease. [21]. The initial lease must be for a minimum term of 5 years. The period of 5 years can be altered if the tenant obtains a certificate from the Retail Industry Commissioner explaining the effect of the section and that the giving of the certificate will result in the tenant's waiving his or her right to the benefits of this section. [23]. Provides that "key-money" is prohibited. [24]. Deals with security deposits. Renewal of a Retail Premises Lease (clauses 26 to 28) [26 to 28]. Sets out the requirements for the landlord's disclosure on renewal of a lease. Rent and outgoings (clauses 29 to 52) [30]. Provides for the way in which alterations to parts of a shopping centre are to occur where the tenant is liable for the costs of the alterations. [31]. Deals with the payment of rent where the landlord is responsible for providing some or all of the fit-out and that work remains incomplete. [32]. A lease may require a "special rent" to be paid by the tenant if the landlord has to complete a fit-out of the premises. [33]. Rent may be based on turnover. Review of Rent and provisions in respect to outgoings (clauses 35 and 36) [35]. If there is a provision in a lease for the rent to be reviewed at a particular time during the period of the lease then the time and formula for this review taking place need to be set out in the lease. [36]. Rent reviews may be based on current market rent. Outgoings (clauses 38 to 52) [38 to 52]. The circumstances where a landlord can recover outgoings from the tenant, [39] non-specific outgoings, [40] recovery of GST, [41] capital costs, [42] depreciation, [43] sinking fund, [44] landlord borrowings, [45] rent associated with other land, [46] estimates of outgoings, [47] statement of outgoings, [49] management fees, [50] land tax, [51] costs associated with lease, and [52] landlords liability for repair. Refurbishment, relocation and other interferences with tenancy (clauses 53 to 59) [55]. Governs relocation of a tenant's business. [56]. Deals with the demolition of a building. The landlord must give at least 6 months' written notice of the termination. [57]. Provides that the tenant does not have to pay rent if damage to the building results in their premises not being able to be used and makes other provision with respect to reduction in outgoings, termination and payment of compensation. [59]. Prohibits a provision in a lease limiting the tenant's right to choose who to employ or engage. Assignment and termination of a retail premises lease (clauses 60 to 64) [60]. Where the landlord will be allowed to withhold his or her consent to the assignment of a lease, and [61] the procedure for obtaining consent to an assignment. Requirements for retail shopping centres (clauses 65 to 75) [66]. If a lease provides that a shop must be open for certain core trading hours, the landlord cannot change those hours unless he or she has the consent of the majority of tenants in the shopping centre. [67] Landlord not to divulge turnover information without consent. [69 to 72] Deals with advertising costs and tenant and landlord obligations. [73]. A lease cannot be terminated because the tenant or the tenant's business did not achieve specified sales or turnover levels. [74]. A lease cannot prevent or restrict the tenant from carrying on other business outside of the shopping centre during or after the term of the lease. [75]. A landlord cannot prevent a tenant from joining a tenants' association or similar body, or treat tenants differently if they chose to join one of these associations. Unconscionable conduct of landlord and tenant (clauses 76 to 80) [76]. The provisions in this Part apply to leases entered into before the commencement of the provisions in the Act as long as the conduct alleged to constitute unconscionable conduct occurred after the Acts commencement. [77]. A landlord cannot act unconscionably. Some of the hallmarks that may give rise to unconscionable conduct are listed in the section such as the relevant bargaining strength of the landlord and the tenant. [78]. Provides a complimentary provision in respect to unconscionable conduct of a tenant and provides the same hallmarks that may indicate unconscionable conduct. [79]. Certain conduct is not to be regarded as unconscionable. [80]. A landlord or tenant who suffers loss or damage as a result of unconscionable conduct may recover compensation by lodging a claim with VCAT. Retail Industry Commissioner - Retail tenancy dispute resolution (clauses 81 to 92) [81]. Defines the meaning of "retail tenancy dispute" as disputes between landlord and tenant arising under or in relation to a retail premises lease to which this Act applies, disputes arising under a provision of the Retail Tenancies Reform Act 1998 or the Retail Tenancies Act 1986, or any dispute that involves retail premises in Victoria not governed by any of these Acts. [83]. Provides for the appointment of a Retail Industry Commissioner under the Public Sector Management and Employment Act 1998 and the Commissioner may delegate functions to his or her staff.
[84]. The functions of the Retail Industry Commissioner include the resolution of disputes and the prosecution of any offences against the Act. [86]. Provides for the procedures for the referral of disputes to the Retail Industry Commissioner. Any or all parties to a lease may refer a dispute to the Commissioner for mediation or alternative dispute resolution. A mediator may prevent a party from being represented by a legal practitioner. [87]. Provides that a dispute can only proceed to VCAT if the Commissioner certifies that mediation or alternative dispute resolution has failed or is not likely to succeed. [89]. Provides that landlords, tenants or specialist retail valuers can apply to have a dispute determined by the VCAT, which is given the same powers and jurisdiction as the Supreme Court, to deal with matters of forfeiture or relief against forfeiture in disputes over retail leases. The VCAT also has jurisdiction under the repealed Act and the Act to be repealed by [118]. 89(4) provides that applications, other than in respect of relief against forfeiture and claims of unconscionable conduct, are only justiciable in VCAT. (Refer to section 85 Constitution Act 1975 statement in [98] ). [91]. The VCAT can make certain orders necessary to resolve a dispute. [92]. Deals with legal costs before the Tribunal. Costs may be awarded where a party conducted the proceedings in a vexatious way that unnecessarily disadvantaged the other side or refused to participate in mediation. [93]. A provision in a lease is void if it requires indemnities (for example legal costs) to be given in respect of certain circumstances. [94]. A lease, or agreement between the parties to the lease, is void to the extent that it is contrary to the provisions of the Act. 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). [98]. Declares that it is the intention of section 89(4) to alter or vary section 85 of the Constitution Act 1975. The Committee notes the section 85 statement in the Minister’s Second Reading Speech –
Regulations [99]. Allows the Governor-in-Council to make regulations for the purposes of the Act. The regulations include a power to establish a code of conduct with which landlords or tenants must comply. The code may apply or adopt or incorporate the provisions of any document issued or published by any body before or when the code of conduct is made or as amended from time to time.
Part 12 – Amendment of the Retail Tenancies Reform Act 1998 (clauses 100 to 109) (The Act is to be repealed on proclamation of this Bill) [2]. Provides that Part 12 comes into force immediately prior to the repeal of the Retail Tenacies Reform Act 1998 (see [118] ). Part 12 amends the Retail Tenancies Reform Act 1998 to the extent that it has continuing operation to achieve, to the greatest extent practicable, consistency with the provisions in the Bill. Whilst the 1998 Act is intended to be repealed (on proclamation) it will have some continuing application to leases entered into prior to the commencement of the Bill. The amendments are not retrospective and will only take effect as they may have application to those existing leases as from 1 November 2003. Part 13 – Amendment of Retail Tenancies Act 1986*
(clauses 110 to 117) Part 13 is intended to make amendments to the Retail Tenancies Act 1986 (to the extent that it has continuing operation to leases entered into prior to the enactment of the Retail Tenancies Reform Act 1998. The purpose is to achieve to the greatest extent practicable consistency with the provisions in the Bill, and therefore consistency in laws that affect retail tenancies in Victoria. The amendments however are not retrospective and will only take effect, as they may have application to those existing leases as from 1 November 2003. Repeal of the Retail Tenancies Reform 1998 and transitional provisions [118]. The Retail Tenancies Reform Act 1998 is repealed. [119]. The Retail Tenancies Reform Act 1998 will still have effect on those retail leases to which it applied, except for the procedures laid down in Part 10 (dispute resolution) of this Act. If proceedings have commenced under the Retail Tenancies Reform Act 1998 then they will continue according to Part 3 of that Act and Part 10 (dispute resolution) of this Act will not apply. Certain transitional provisions (sections 39 and 52) of the Retail Tenancies Reform Act 1998 also continue to operate despite the Act itself having been repealed. [121]. Provides that although under section 50 a tenant is not liable to pay land tax for which the landlord is being charged, if the lease was entered into or renewed or assigned before the commencement of this Act then section 50 will not apply and the tenant will be liable to pay the land tax as set out in the lease. [122 to 124]. Make consequential amendments to the Liquor Control Reform Act 1998, the Shop Trading Reform Act 1996 and the Victorian Civil and Administrative Tribunal Act 1998. The Committee makes no further comment.
Introduced: 9 October 2002 Purpose The Bill amends the Transport Act 1983 (the
‘Act’) to replicate in legislative form, the immunity from civil liability that
had been considered to exist at common law under the "highway rule" prior to the
decision of the High Court of Australia on 31 May 2001 in the cases of Brodie v Singleton
Shire Council and Ghantous v Hawkesbury Shire Council. The legislative immunity will confer on certain persons or bodies, in relation to their capacity as highway authorities, immunity from civil action in respect of an act of non-feasance such as failure to repair or keep in repair public highways, including any failure to inspect a highway for that purpose. The immunity will apply in relation to all causes of action arising before 1 July 2004. This includes causes of action that had already arisen before this Bill is passed, unless legal proceedings had actually been commenced on or before 10 October 2002. This counteracts the retrospective effect of Brodie's Case and provides a transitional period for highway authorities to adapt to the new legal framework, without prejudicing any existing legal proceedings. Content and Committee comment [Clauses] [2]. The provisions in the Bill (other than section 4) come into operation on the day after Royal Assent. Section 4 (repealing the provisions in [3]) comes into operation on 1 July 2004. [3]. Inserts new Part IIA in the Act. New section 37A provides that a public authority is not liable in any civil proceeding for any failure by that public authority, in relation to any function it has as a highway authority to repair the highway or to keep the highway in repair; or to inspect the highway for the purpose of determining the need to repair the highway or to keep the highway in repair. The clause also provides a definition for ‘public authority’ [also refer to clause 5 below concerning section 85 of the Constitution Act 1975]. The section applies to any cause of action, whether arising before, on or after the commencement of the amendments made by the Bill but does not effect any proceeding brought on or before 10 October 2002 (being the date of the announcement in the Second Reading Speech), whether or not that proceeding has been completed on or before that date. The Committee notes the following extract from the Explanatory Memorandum of the Bill –
[4]. Repeals, with effect from 1 July 2004 the provisions inserted by clause 3 (Part IIA). New clause 4(2) however provides that despite the repeal of clause 3 it will continue to apply to causes of action that arose prior to that repeal. 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). [5]. Inserts new section 255F to declare that it is the intention of section 37A (as inserted by clause 3) to alter or vary section 85 of the Constitution Act 1975. The Committee notes the section 85 statement in the Minister’s Second Reading Speech –
The Committee makes no further comment.
Transport (Taxi Driver Standards and Ombudsman) Bill Introduced: 9 October 2002 Purpose The Bill –
Content and Committee comment [Clauses] [2]. Sections 8 and 9 come into operation on Royal Assent. The remaining provisions come into operation by proclamation but not later than 1 January 2003. Amendments to the Transport Act 1983 [4]. Amends section 156 to provide a discretion to the licensing authority to refuse to grant a person's application for a driver certificate under section 156 to drive a commercial passenger vehicle if the person has been convicted of a level 1 or level 2 offence and to declare a person ineligible to be granted a driver's certificate for a specified period. Where it does so it must give the person written notice of that declaration. The provisions apply only to convictions for offences occurring after the commencement of the amendment. [5]. Amends section 157 to provide that where a person holding a driving certificate has been convicted of a level 1 or level 2 offence, the licensing authority may revoke the driver's certificate and declare the person ineligible to be granted a driver's certificate for a specified period. The licensing authority must give the person notice in writing of the decision. There is already in place an appeal mechanism to the Magistrates’ Court. The discretion only applies with respect to a conviction for an offence that was committed on or after the date of commencement of the new section. There is also an appeal provision to the Magistrates’ Court where the licensing authority suspends or revokes a driver's certificate under section 157. [6]. Inserts new sections 157A and 157B into the Act clarifying reference to a conviction of a person for certain offences under the Act. New section 157B requires the holder of a driver's certificate, or a person who has applied for a driver's certificate who becomes aware that he or she has been charged or convicted of a level 1 or 2 offence or an offence against sections 64 or 65 of the Road Safety Act 1986 to notify the licensing authority of that charge or conviction immediately upon becoming aware of it. Further it becomes an offence to fail to do so. Amendments to other Acts [11]. Inserts a new sub-section 11(5) and new section 18ZJ(6) into the Rail Corporations Act 1996 to provide that respectively Rail Track and the Spencer Street Station Authority must not, without the Minister's approval in writing, form a company, be a member of or hold shares in a company formed to carry out the functions of a public transport industry ombudsman or enter into any agreement with respect to participation in a public transport industry ombudsman scheme. [12]. Repeals a number of obsolete provisions in the Public Transport Competition Act 1995. The Committee makes no further comment.
Victims of Crime Assistance (Miscellaneous Amendments) Bill Introduced: 9 October
2002 Purpose The Bill amends the Victims of Crime Assistance Act 1996 (the ‘Act’) to –
Content and Committee comment [Clauses] [2]. The amendments will come into operation on proclamation but not later than 1 July 2003. [4]. Amends the definition of people suffering a "deemed injury" in section 3(2) of the Act to include people who need treatment or counselling as demonstrated by psychological evidence. Interim awards [5]. Amends section 24 to allow the Chief Magistrate to delegate to registrars the power to make an interim award not exceeding a prescribed amount which will be detailed in regulations. The clause also amends section 56 relating to an interim award and provides a discretion to the Tribunal that where an application is subsequently dismissed the amount of an interim award, if one has been made, may become a debt due to the State by the applicant. Determining application without a hearing [6]. Amends section 33 detailing the circumstances in which the Tribunal may determine an application, or make a decision in relation to an application, in certain circumstances without conducting a hearing. [7]. Amends section 45 to provide that the Chief Magistrate may issue guidelines for the Tribunal as to the matters that may be taken into account in determining whether expenses of a specified kind are reasonable; and any other matter related to the determination of an application. Guidelines made under this clause will fetter the discretion of Magistrates who constitute the Tribunal. [8]. Amends section 51 to allow a person to assign to the State his or her right to recover from any other person, by civil proceedings, damages or compensation in respect of the injury or death to which the award relates. The assignment can only be made after the Tribunal has made an award. Childhood victims of sexual assault [9]. Amends section 77 to expand the range of circumstances in which childhood victims of sexual assault may make an application for special financial assistance. The amendments will ensure that applicants who come within the criteria in these amendments but have made their applications prior to commencement of these amendments will not be excluded from receiving an award of special financial assistance. The Committee makes no further comment. Committee Room
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