Alert Digest No. 1 of 2003

Tuesday, 8 April 2003

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Business Licensing Legislation (Amendment) Bill

Introduced: 18 March 2003
Second Reading Speech: 20 March 2003
House: Legislative Assembly
Minister introducing Bill: Hon. J. Brumby MLA
Portfolio responsibility: Minister for Consumer Affairs

Purpose

The Bill amends the Associations Incorporation Act 1981, the Business Names Act 1962, the Estate Agents Act 1980, the Motor Car Traders Act 1986 and the Travel Agents Act 1986 to facilitate electronic document transactions under those Acts. The Bill amends the delegation powers in the Business Licensing Authority Act 1998.

The Bill also clarifies the provisions relating to the public registers, established by the above Acts by specifying the information that must be contained in each register and the right of the public to access that information. In order to ensure the protection of the privacy of people whose personal information is held in a register, purposes have been included for the keeping of each register which enables a person to apply to have public access to their personal information restricted. The restriction would only be permitted in exceptional circumstances. A person affected by a decision relating to the restriction or otherwise of personal information will have a right to have that decision reviewed by the Victorian Civil and Administrative Tribunal (‘the VCAT’).

Content and Committee comment

[Clauses]

[2].The amendments made by the Bill come into operation on proclamation but not later than 1 June 2004.

Amendments to the Associations Incorporation Act 1981 (Clauses 3 to 21)

[13]. Amends section 36D(1) to allow an incorporated association with assets of $10,000 or less to appoint an unregistered liquidator. An unregistered liquidator who must be a member of CPA Australia or the Institute of Chartered Accountants in Australia or a person approved by the Registrar.

[14]. Allows the Registrar to reinstate the registration of an association where the Registrar is satisfied that the association should not have been deregistered.

[16]. Inserts new sections 39B and 39C.

New section 39B enables a person to apply to the Registrar to have public access to their personal information held on the register restricted. The Registrar may restrict public access to all or some of that person's personal information if satisfied that there are exceptional circumstances for doing so.

The new section also allows another person to apply for the release of personal information to which the Registrar has restricted public access. Despite the restriction on public access, the Registrar may release the information to that other person if the Registrar is satisfied that it is in the public interest to do so. If the Registrar has decided to release personal information, the information must not be released until 28 days after the Registrar gives written notice to the person whose information is to be released.

The new section 39C allows any person affected by a decision of the Registrar in relation to personal information to apply for review of that decision to the VCAT.

Amendments to the Business Names Act 1962 (Clauses 22 to 43)

[39]. Replaces section 22 with three new sections 22, 22A and 22B.

New section 22 entitles a person to inspect or obtain a copy of, or an extract from, any information contained in the register. The entitlement to inspect or obtain an extract or copy, does not entitle a person to inspect or obtain a copy of or an extract from any document lodged with the Director or any information not forming part of the register.

New section 22A enables a person to apply to the Director to restrict public access to their personal information held on the register. The Director may restrict public access to all or some of that person's personal information if satisfied that there are exceptional circumstances for doing so. The new section also allows another person to apply for the release of personal information to which the Director has restricted public access. Despite the restriction on public access, the Director may release the information to that other person if the Director is satisfied that it is in the public interest that the information is released to that person. Where the Director has decided to release the person's personal information, the information must not be released until 28 days after the Director gives written notice to that person.

New section 22B allows any person affected by a decision of the Director in relation to personal information to apply for review of that decision to the VCAT.

Amendments to the Estate Agents Act 1980 (Clauses 44 to 59)

[47]. Inserts new section 19A allowing the Authority to require an applicant for a licence, or a licensee, to provide any consent necessary for the Authority to check or confirm information relevant to the application or licence.These provisions will allow the Authority to conduct, for example, an interstate police check before determining an application, or other checks, where the Authority has notice that the licensee may have committed a disqualifying offence, at any time during the course of a licence.

[51]. Inserts new section 31C(2A) requiring that an application to the Authority for permission to hold an estate agent's licence where the applicant has been convicted of, or had proven against him or her, an offence involving fraud, dishonesty, drug trafficking or violence must be made in the form approved by the Authority and be accompanied by any information or documents required by the Authority. The Authority may conduct any inquiries and require the applicant to provide any further information required by the Authority and refuse the application if the information is not provided within a reasonable time.

[54]. Inserts in section 64 a requirement that an estate agent retain a signed copy of an auditor's report for 7 years. A penalty of 20 penalty units for non-compliance applies.

Strict liability offence

[58]. Inserts a new section 98A that provides for a new offence where a person destroys, conceals, mutilates or alters any document that he or she is required to keep under the Act or the regulations. A penalty of 100 penalty units ($10,000) applies. It is a defence if the person charged can establish that the action was not done with the intention of defeating the purposes of the Act.

98A. Offence to destroy documents required by the Act

(1) A person must not destroy, conceal, mutilate or alter any document that the person is required to retain under this Act. Penalty: 100 penalty units.

(2) It is a defence to a charge under sub-section (1) if the person charged can establish that the destruction, concealment, mutilation or alteration of the document was not done with the intention of defeating the purposes of this Act.

Regulation making powers

[59]. Clarifies the regulation making power contained in section 99 to ensure that fees can be prescribed for copies of, or extracts from, the register. The clause also enables different fees to be prescribed according to differences in circumstances. For example, different fees may be charged for electronic and paper transactions.

Amendments to the Motor Car Traders Act 1986 (Clauses 60 to 75)

[69]. Amends section 35A to provide that a motor car trader is prohibited from employing a person who has within the last 10 years been convicted or found guilty of a serious offence, whether or not a conviction was recorded.

[71]. Inserts new section 83A requiring a person who sends a copy of a document or notice to the Director or Authority to retain the original of that document for 7 years.

[72]. Reduces the penalty for destroying, concealing, mutilating or altering any document that a motor car trader is required by the Act or regulations to keep to 100 penalty units and removes the option previously open to a court of imposing a term of imprisonment.

Amendments to the Travel Agents Act 1986

[80]. Inserts new section 41 which requires a person who sends a copy of a document or notice to the Director or Authority to retain the original of that document for 7 years. The clause also requires a person to keep a document that the Act or regulations require they keep, for a period of 7 years. A penalty of 20 penalty units applies for non-compliance with either of these provisions.

[82]. Inserts new section 42D making it an offence for a person to destroy, conceal, mutilate or alter any document that he or she is required to keep under the Act or the regulations. A penalty of 100 penalty units applies. It is a defence if the person charged can establish that the act was not done with the intention of defeating the purposes of the Act.

42D. Offence to destroy records required by the Act

(1) A person must not destroy, conceal, mutilate or alter any record that the person is required to keep by this Act or the regulations. Penalty: 100 penalty units.

(2) It is a defence to a charge under sub-section (1) if the person charged can prove that the destruction, concealment, mutilation or alteration of the document was not done with the intention of defeating the purposes of this Act.

Amendments to the Business Licensing Authority Act 1998

[85]. Amends the delegation power contained in section 11 by substituting paragraphs (a) and (b) to enable the Authority to delegate any of its powers or functions except the power to determine an application for a licence or for permission to be licensed or to continue to be licensed despite the applicant being otherwise ineligible and the power to delegate. The section limit delegations to persons employed in a government department, statutory authority or other public body or otherwise employed pursuant to the Public Sector Management Act 1992.

[86]. Inserts a new provision, which enables a person to apply to the Authority to have public access to their personal information held on the register restricted. The Authority may restrict public access to all or some of that person's personal information if satisfied that there are exceptional circumstances for doing so. [see [39] above].

The Committee makes no further comment.

Commissioner for Environmental Sustainability Bill

Introduced: 26 February 2003
Second Reading Speech: 27 February 2003
House: Legislative Assembly
Minister introducing Bill: Hon. J. Thwaites MLA
Portfolio responsibility: Minister for Environment

Purpose

The Bill provides for the appointment, objectives, functions and powers of the Commissioner for Environmental Sustainability (‘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 September 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.

[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.

Commonwealth Games Arrangements (Amendment) Bill

Purpose

The Bill amends the Commonwealth Games Arrangements Act 2001 (‘the Act’) to –

• facilitate the development of the Commonwealth Games Village; and the development, re-development and use of the Games Village land after the Commonwealth Games;

• make further provision in relation to Commonwealth Games projects, Commonwealth Games venues and Games related facilities, including facilities which can be used by all Victorians after the Commonwealth Games;

• establish a body corporate to be responsible for various matters relating to Commonwealth Games projects.

Content and Committee comment

[Clauses]

<[2]. The amendments made by the Bill come into operation on the day after Royal Assent.

[6]. Inserts new section 3A which permits the Minister, by notice published in the Government Gazette, to declare Games related facilities.

Compensation for road closure

[10]. Inserts new sections 44A and 44B which provide for the closing, constructing, relocating, opening and realignment of roads for the purposes of Commonwealth Games projects. The provision also provides for compensation and procedures to be followed in relation to the payment, where necessary, of compensation.  If agreement on compensation cannot be reached the provisions of the Land Acquisition and Compensation Act 1986 apply.

[11]. Inserts new Part 4A which deals with the Games Village.

New section 48B provides the Minister with planning powers in relation to the Games Village land. It also provides that Division 5 of Part 6 of the Planning and Environment Act 1987 (dealing with certain applications that can be made to the Victorian Civil and Administrative Tribunal) does not apply to any decision or matter relating to the Games Village land.

[16]. Amends section 28 of the Act to enable the Secretary to delegate any of the Secretary’s powers under the Act, other than the power of delegation, to any person or class of persons employed under Part 3 of the Public Sector Management and Employment Act 1998.

It also inserts new sub-sections (2) and (3) into section 28 of the Act to permit the Secretary, with the approval of the Minister, to delegate powers under sections 27 (contracts and agreements) and 44 (disposing of land) of the Act to any other person or body or the holder of any office.

The Committee makes no further comment.

Control of Weapons and Firearms Acts (Search Powers) Bill

Introduced: 26 February 2003
Second Reading Speech: 27 February 2003
House: Legislative Council
Minister introducing Bill: Hon. T. Theophanous MLC
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 January 2004.

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 police 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 the present test of a ‘reasonable cause to believe that a person is carrying or has in his or her possession in a public place a prohibited or controlled weapon’. The new test is therefore a lower legal test;

• 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 ($3,000) 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.

[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 10A and 10B.

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 [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.

[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.

Purpose

The Bill 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 13(1) and (2) commence on the day after Royal Assent.

The Bill provides for the retrospective commencement of sections 13(1) and (2) on 30 June 1992. This is necessary to ensure the validity of the Country Fire Authority Regulations 1992. (See [13] below).

[9]. 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

[10]. For current sections 92 and 92A there is substituted 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.

[11]. Substitutes section 95 of the Act, to clarify and improve the civil liability immunity protection for any persons complying with a direction 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

[13]. Sub-clause (1) amends section 110(1) of the Act (the regulation making power) and substitutes paragraph (g) and inserts additional 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 (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 [2] above).

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), 247K (sabotage) and 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.

Amendments to other Acts

[13]. Makes a consequential amendment to the Sentencing Act 1991 to insert the offence of  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 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.

Crimes (Stalking and Family Violence) Bill

Introduced: 25 March 2003
Second Reading Speech: 27 March 2003
House: Legislative Assembly
Minister introducing Bill: Hon. R. Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

The Bill amends the Crimes Act 1958 with respect to the offence of stalking to ensure –

• the offence covers cyberstalking;

• the offence no longer requires proof as to the actual effect on the victim of the course of conduct engaged in by the offender; and

• the offence has extra-territorial operation.

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 –

The Bill will amend the current definition of stalking to remove the requirement that the victim actually be harmed or experience apprehension or fear. The offence of stalking should focus on the behaviour of the offender rather than the response of the victim. The evil in the offence is in the actual stalking.

The intention on the part of the offender to cause fear, or the fact that the offender ought to have understood that their target would be frightened, is the key factor that should make the behaviour criminal. The fact that a target of stalking is unaware or is not easily frightened should not prevent prosecution of the offence.

[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 listed for hearing by 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 Bill.

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).\

Note:In Stephens v Melis (June 2002) the Supreme Court of Victoria held that an intervention order made solely on the basis of consent, without hearing any evidence from the parties may be invalid and therefore unenforceable. The decision has therefore cast doubt on the validity of past consent orders and the enforceability of breaches of such orders.

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 provides that the validation of certain intervention orders and 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 statement in the Second Reading Speech –

Defendants who, before the commencement of this Bill, may have been able to appeal to the Supreme Court against a conviction for a breach of an intervention order on the grounds that the intervention order was made solely on the consent of the parties and is therefore invalid, will no longer be able to appeal on that ground after the commencement of this Bill.

This limitation is necessary in order to ensure that all existing intervention orders that were made before the commencement of this Act on the basis of the parties' consent will, in the event of a breach of that order, not be invalid merely because of the way in which they were made. This protection needs to apply from the time the order was made regardless of when the order may have been breached.

Without this provision, those who are protected by intervention orders face the risk that, if there has already been a breach of the order, on an appeal against a conviction for that breach the order could be ruled to be invalid on the grounds that it was made based on the consent of the parties.

The Committee makes no further comment.

Federal Awards (Uniform System) Bill

Introduced: 26 February 2003
Second Reading Speech: 27 February 2003
House: Legislative Assembly
Minister introducing Bill: Hon. R. Hulls 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

[Clauses]

[2]. The provisions in the Bill come into operation on proclamation. Section 52 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 section 52. If section 52 has come into operation, the remaining provisions in 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.

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 (clauses 14 to 35)

[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 – Information Officers

[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 38 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. [25]. A copy of the warrant is to be given to the occupier.

Registered Organisations – Entry and Inspection Powers

[28]. Allows authorised officers (‘authorised officer’) of a registered organisation (as defined in the Bill) to enter any premises, during working hours and without force, for the purpose of investigating a suspected contravention of this Act. After entering the premises the authorised officer may, for the purposes of investigating the suspected contravention make copies of documents that are relevant to the suspected contravention, including time and pay sheets. The authorised officer may also inspect or view any work, material or machinery, and interview any employee who is a member or eligible to be a member of that organisation. For the purposes of investigating the suspected contravention, the authorised officer may require an employer to produce documents.

[29]. Allows an authorised officer to enter premises where work is being carried on to which a specified award applies that is binding on the registered organisation and employees who are members work, for the purpose of holding discussions with any employees who wish to participate. Such discussions may only take place during meal times and other breaks.

The authorised officer may not enter premises if no more than 20 employees are employed to work at the premises, and all the employees at the premises are employed by an employer who is the holder of a conscientious objection certificate in force under section 267 of the Commonwealth Act, and none of the employees employed at the premises is a member of a relevant organisation.

[30]. Requires an authorised officer to produce his/her permit prior to entry. An authorised officer may only enter a premises if he or she has given the occupier at least 24 hours notice. Entry to any part of a premises used for residential purposes may only occur with the permission of the occupier.

[31]. Allows the Industrial Division of the Magistrates’ Court to issue a permit, on application by a registered organisation to an officer or employee of the organisation to exercise powers under [28 and 29]. A permit is valid for 3 years.  [32].The permit may be revoked

[33]. Provides for civil penalties where an authorised officer has deliberately hindered or obstructed an employer or employees and where an occupier refuses or unduly delays entry to premises, refuses to allow inspection or production of documents under [28] above.

[34]. States that a contravention of a penalty provision in [33] is not an offence but a court may make an order imposing a penalty on a person who contravenes a penalty provision of up to $10,000 for a body corporate or $2,000 in other cases.

A court may grant an injunction requiring a person not to contravene, or to cease contravening a penalty provision.

Victimisation prohibited

[36]. 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.

[37]. Makes it an offence, without reasonable excuse, to fail to produce documents under [20] and [21] or to hinder information services officers and also makes it an offence to give false information or false or misleading documents to information services officers.

Privilege against self-incrimination

[38]. Provides a protection against self-incrimination for natural persons not to be compelled to give evidence or produce a document if the evidence or document may tend to incriminate the person.  However the provision requires the production of a record or document that is required to be kept under the Act or under the regulations notwithstanding the tendency to incriminate. Further the privilege does not cover the operation of section 105 of the Victorian Civil and Administrative Tribunal Act 1998 which 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.

Section 105 of the Victorian Civil and Administrative Tribunal Act 1998 provides –

(1)  A person is not excused from answering a question or producing a document in a proceeding on the ground that the answer or document might tend to incriminate the person.

(2)  If the person claims, before answering a question or producing a document, that the answer or document might tend to incriminate them, the answer or document is not admissible in evidence in any criminal proceedings, other than in proceedings in respect of the falsity of the answer.

Reverse onus of proof

[44]. 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.

[45]. Makes provision for recovery of money owed. A written demand must first be made to the employer within 6 years of the entitlement arising. A court may award interest in any order it makes.

[46]. A court may order arrears (up to 6 years) to be paid in addition to penalties under the Act.

[47]. An employee may be represented by an employee or agent of a registered organisation or peak body (defined in [3]).

[48]. Proceedings against an unincorporated club may be brought against the Treasurer who is deemed to be the employer for the purposes of the Act.

[49]. Allows for a general regulation making power.

[52]. 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 for the termination of this reference by proclamation by Governor in Council.

[54]. Makes consequential amendments to the Victorian Civil and Administrative Tribunal Act 1998.

The Committee makes no further comment.

Firearms (Trafficking and Handgun Control) Bill

Introduced: 26 February 2003
Second Reading Speech: 27 February 2003
House: Legislative Assembly
Minister introducing Bill: Hon. A. Haermeyer MLA
Portfolio responsibility: Minister for Police and Emergency Services

Purpose

The Bill amends the Firearms Act 1996 (‘the Act’) to –

(i)	create new offences;
(ii)	increase penalties for existing offences;
(iii)	restrict the circumstances in which handguns can be used;
(iv)	restrict the classes of handguns for which persons may be licensed;
(v)	increase the requirements to be satisfied before licences for handguns may be issued;
(vi)	prescribe further conditions for licences on handguns;
(vii)	make further provision for approvals for handgun target shooting clubs and firearms collectors clubs;
(viii)	prescribe certain requirements to be complied with by handgun target shooting clubs and firearms collectors clubs;
(ix)	make further provision for firearms collectors licences;
(x)	make further provision for the power of the Chief Commissioner to refuse applications for, or to cancel, handgun licences;
(xi)	make further provision relating to associates of licence holders;
(xii)	impose further restrictions on the possession of certain handguns and unregistered firearms;
(xiii)	impose further restrictions on the acquisition and disposal of unregistered firearms;

(b)   The Bill makes consequential amendments to the Magistrates’ Court Act 1989.

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill commence on proclamation but not later than by 1 January 2004.

[4]. Increases the penalties for possession, carriage or use of a firearm by a prohibited person. [5]. Increases the penalties for possession, carriage or use of registered longarms without a licence.

[6]. Inserts a new section 6A to increase the maximum penalty for possession, carriage or use of an unregistered longarm, and create a new higher maximum penalty for a person who commits a subsequent offence. [7]. Substitutes a new section 7 to increase the penalty for possession, carriage or use of a handgun without a licence.

[8]. Inserts new sections 7A to 7C into Act.

New Section 7A restricts the handguns that can be possessed, carried or used by a person who has a licence to possess, carry or use a handgun for the purpose of target shooting by barrel length, calibre and magazine capacity. New section 7B creates an offence to possess, carry or use an unregistered handgun and creates a new higher maximum penalty for a person who commits a subsequent offence. New section 7C creates a new offence of possession of a traffickable quantity of unregistered firearms.

[23]. Amends section 49 of the Act concerning the power of the Chief Commissioner to cancel a licence and provides that the Chief Commissioner may cancel a general category handgun licence where the holder has caused a firearm to be lost or stolen through his or her negligence or fraud; or (new section 49(1)(fa)) the Chief Commissioner is satisfied that the licensee is not a fit and proper person to retain a handgun licence on the basis of information held by the Chief Commissioner with respect to the criminal activities of the licensee.

[24]. Amends section 50 of the Act which deals with the review of decision to cancel a licence by the Firearms Appeal Committee established by the Act. The new provision will provide that no appeal to the Committee is allowed in cases where the Chief Commissioner of Police cancels a general category handgun licence because the Chief Commissioner is satisfied that the licensee is not a fit and proper person to retain a handgun licence on the basis of information held by the Chief Commissioner with respect to the criminal activities of the former licensee (new section 49(1)(fa)).

[25]. Amends section 51 of the Act to provide that the Chief Commissioner need not give reasons for cancelling a licence under section 49(1)(fa).

[27]. Inserts new section 53A and 53B.

New section 53A provides that, where the holder of a general category handgun licence has been served with a notice under new section 52A, the holder must surrender the handgun and any ammunition specified in the notice immediately if served personally; or within 7 days to a police station if served by post.

If a member of the police force has reasonable grounds for believing that a person has not complied with a notice issued under new section 52A, the member may, at a reasonable time, without warrant, enter and search any premises for the purposes of seizing the handgun or ammunition and must then seize the handgun or ammunition.

New section 53B provides that, where the holder of a category 1 or category 2 firearms collectors’ licence has been served with a notice under new section 52B, the holder must surrender the handgun and any ammunition specified in the notice immediately if served personally; or within 7 days to a police station if served by post.

If a member of the police force has reasonable grounds for believing that a person has not complied with a notice issued under new section 52B, the member may, at a reasonable time, without warrant, enter and search any premises for the purposes of seizing the handgun or ammunition and must then seize the handgun or ammunition.

[35]. Insert a new section 75B and creates an offence for a firearm dealer to employ a prohibited person (defined in the Act) in the business conducted under the licence or as an agent in the business conducted under the licence.

[43]. Inserts new sections 101A and 101B into the Act.

New section 101A creates an offence for a person who is not the holder of a dealers licence to acquire or dispose of (without notice to the Chief Commissioner) more than 10 unregistered firearms within a period of 7 days. New section 101B creates an offence of providing financial accommodation to a person who engages in the illegal acquisition or disposal of firearms. A person who, knowing an acquisition or disposal does not comply with the Act or is reckless as to whether or not the acquisition or disposal complies with the Act, lends money, guarantees the lending of money or otherwise provides financial accommodation for the purposes of acquiring or disposing of illegal firearms will fall within this new provision.

[46]. Inserts new section 119A into the Firearms Act 1996.

New section 119A provides the Chief Commissioner with the power to require a person to stamp a unique identifying serial number on to a firearm if that firearm does not already possess one.

[52]. Inserts new “Part 6A--Approved Clubs” and inserts new sections 123A to 123W dealing with approved shooting clubs.

New section 123D provides that an approved handgun target shooting club must take the prescribed measures to ensure that a person who is not appropriately licensed, or is a prohibited person, does not take part in handgun target shooting matches run by it. An approved handgun target shooting club must not admit a member unless the person has submitted to it a criminal history check.

New section 123L provides that an approved firearms collectors club must not admit a person to membership if that person is a prohibited person and must not admit a member unless the person has submitted to it a criminal history check.

[53]. Inserts new section 124AA in the Act to provide that a person who, in Victoria, conspires with a person to commit an offence outside Victoria which corresponds to an offence against the Act, or aids, abets, counsels, procures, solicits or incites such an offence, is guilty of an offence and liable to the same maximum penalty as if the principal offence had been committed in Victoria.

[59]. Inserts new sections 134A, 134B and 134C into the Firearms Act 1996.

New section 134A provides that a person who fails to obtain the consent of the Chief Commissioner before altering the category of a firearm is guilty of an offence and subject to a maximum penalty of 60 penalty units.

[66]. Amends section 183 of the Act (immunity from liability) to extend the operation of the immunity to health professionals and nominated officers of gun clubs. The section is amended to provide that the immunity from civil and criminal liability operates where a health professional or nominated club officer discloses a belief in good faith that a patient or member respectively is not a fit and proper person to hold firearms. (also note [69] below concerning section 85 Constitution Act 1975).

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)

[69]. Amends section 190 of the Act concerning a limitation of the jurisdiction of the Supreme Court and declares that it is the intention of section 183 of the Act (immunity from liability), as amended by clause 66 to alter or vary section 85 of the Constitution Act 1975.

The Committee notes the comments of the Minister in his section 85 statement in the Second Reading Speech –

That clause [66] extends the immunity from civil or criminal proceedings granted by section 183 of the Firearms Act 1996 to particular classes of medical professionals and officials of shooting clubs who report to police their belief that a patient or member respectively is not a fit and proper person to possess firearms. This is necessary to ensure that these people are able to assist in protecting community safety by alerting the chief commissioner to persons who are not, in their belief in good faith, fit and proper people to possess firearms.

[75]. Amends Schedule 4 to the Magistrates’ Court Act 1989 to include a number of offences created by the Bill that have a maximum penalty of between 2 and 10 years’ imprisonment, including the offences for which the maximum penalty has increased from less than 2 years’ imprisonment to 2 or more years’ imprisonment in the Bill, as indictable offences triable summarily.

The Committee makes no further comment.

Health Legislation (Research Involving Embryos and Prohibition of Human Cloning) Bill

Introduced: 26 February 2003
Second Reading Speech: 27 February 2003
House: Legislative Assembly
Minister introducing Bill: Hon. B. Pike MLA
Portfolio responsibility: Minister for Health

Purpose

The Bill amends the Infertility Treatment Act 1995 (‘the Act’) so as to make 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 Bill is complementary to the Bills for the Research Involving Embryos Act 2002 (the Commonwealth Act) and the Prohibition of Human Cloning Act 2002 (Commonwealth).

[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.

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 Committee established by section 13 of the Commonwealth Act. 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.

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 new sections 38A to 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 new sections 38G to 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 new sections 38E to 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 this Bill has been enacted.

The Committee makes no further comment.

Legal Practice (Validations) Bill

Introduced: 26 February 2003
Second Reading Speech: 27 February 2003
House: Legislative Council
Minister introducing Bill: Hon. J. Madden MLC
Portfolio responsibility: Attorney-General

Purpose

The Bill amends the Legal Practice Act 1996 (‘the Act’) to validate certain delegations and other actions purportedly made or taken under that Act.

On 13 December 2002 the Court of Appeal handed down a decision in the case of “B” a solicitor and “G” a solicitor v Victorian Lawyers RPA Limited and Legal Profession Tribunal. The Court of Appeal held that the process used by Victorian Lawyers RPA Limited to delegate powers under the Legal Practice Act 1996 did not satisfy the requirements of the Act that the delegation must be made in writing, and therefore was not effective. Victorian Lawyers RPA Limited had purported to delegate its powers by making a resolution and later recording a minute of the resolution.

For further information concerning the reasons for the Bill the Committee refers Members to the Explanatory Memorandum.

Content and Committee comment

[Clauses]

[2]. Provides that the validating Act, other than section 3, will commence on Royal Assent. Section 3 will be deemed to have come into operation on 1 January 1997, which is the date on which the Act commenced. The retrospective commencement is necessary to ensure that purported delegations in relation to the transitional provisions can be effective from the time the Act came into operation.

[4]. Insert new clauses 17B to 17F into Schedule 2 of the Act to validate certain delegations made under the Act.

The Committee makes no further comment.

Major Events (Crowd Management) Bill

Introduced: 18 March 2003
Second Reading Speech: 20 March 2003
House: Legislative Assembly
Minister introducing Bill: Hon. J. Thwaites MLA
Portfolio responsibility: Minister for Tourism

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 [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.

The Committee makes no further comment.

Melbourne Cricket Ground (Amendment) Bill

Introduced: 18 March 2003
Second Reading Speech: 20 March 2003
House: Legislative Assembly
Minister introducing Bill: Hon. J. Thwaites MLA
Portfolio responsibility: Minister for Sport and Recreation

Purpose

The Bill amends the Melbourne Cricket Ground Act 1933 (‘the Act’) to make further provision regarding the management of the Melbourne Cricket Ground 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 30 June 2003.

[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.

Murray-Darling Basin (Amendment) Bill

Introduced: 25 March 2003
Second Reading Speech: 26 March 2003
House: Legislative Assembly
Minister introducing Bill: Hon. J. Thwaites MLA
Portfolio responsibility: Minister for Water

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.

[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.

Outworkers (Improved Protection) Bill

Introduced: 26 February 2003
Second Reading Speech: 27 February 2003
House: Legislative Assembly
Minister introducing Bill: Hon. R. Hulls MLA
Portfolio responsibility: Minister for Industrial Relations

Purpose

The Bill provides improved 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 January 2004.

[3 to 5]. Sets out the definitions of terms used in the Act and provides for a definition of “outworker” and “remuneration” for the purposes of the legislation.

Unpaid Remuneration

[6]. 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.

[7]. 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.

[8]. 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.

[9]. Allows outworkers to recover amounts from apparent employers.

[10]. Creates an offence where a person 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.

[12] Deals with the liability of a principal contractor for remuneration payable to outworkers of subcontractors.

Ethical Clothing Trades Council of Victoria

[15]. 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.

[16 and 17]. 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.

[18]. The Schedule outlines the constitution and procedure of the Council.

[19 and 20]. The Council is to monitor whether outworkers are receiving their lawful entitlements and make quarterly reports to the Minister.

[21]. The Minister may approve the Council using the services of staff or facilities of a government department.

Mandatory Code of Practice (clauses 22 to 29)

[22 to 24]. 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.

[25]. 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.

[27]. The mandatory code must be available for inspection.

[29]. 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

[30 to 32]. Respectively provide for the functions, appointment of and issue of identity cards to information officers (‘officers’).

[35]. 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.

[36]. Sets out the powers of officers in inspecting premises, taking samples of goods, requiring documents to be produced or interviewing outworkers or employees.

[37]. 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 Union Officials

[41]. Allows an authorised officer (an officer or employee of the Textile Clothing and Footwear Union of Australia (Victorian Branch) (‘the union’) 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.

[42]. Allows an authorised officer to enter premises where outworkers who are, or are eligible to become, members of the union, work for the purpose of holding discussions with any outworkers who wish to participate. Such discussions may only take place during meal times and other breaks. The authorised officer may not enter premises if no more than 20 outworkers are engaged to work at the premises, and all the outworkers at the premises are engaged by an employer who is the holder of a conscientious objection certificate in force under section 267 of the Commonwealth Act, and none of the outworkers engaged at the premises is a member of a registered organisation.

[43]. Requires an authorised officer to produce his/her permit prior to entry. An authorised officer may only enter premises if he or she has given the occupier at least 24 hours notice. Entry to any part of a premises used for residential purposes may only occur with the permission of the occupier.

[44]. Allows the Court, on the ex parte application of an authorised officer, to make an order waiving the requirement for notice if satisfied that the notice would defeat the purpose of the exercise.

[45 and 46]. Deal with permits to an officer or employee of the union to exercise powers under section 41 and 42.  A court may revoke a permit if satisfied that the authorised officer has intentionally hindered or obstructed employers or employees or has acted in an improper manner.

[47]. Specifies conduct in relation to [40] to [49] that attracts civil penalties. An authorised officer must not deliberately hinder or obstruct an employer, contractor, employees or outworkers. An occupier must not refuse entry to an authorised officer. An employer must not refuse to comply with the requirements of section 41(3)(a) or (4). A person must not deliberately hinder or obstruct an authorised officer. A person to whom a permit has been issued must, within 14 days after its expiry or revocation, return the permit to the Court.

[48]. States that a contravention of a penalty provision in section 47 is not an offence. A court, may make an order imposing a penalty on a person who contravenes a penalty provision. The penalty can not be more than $10,000 for a body corporate or $2,000 in other cases. A court may grant an injunction requiring a person not to contravene, or to cease contravening a penalty provision.

Victimisation and other offences

[50]. An employer, a contractor, a registered organisation or an interested organisation must not victimise an outworker who claims a benefit, or exercises a power or right, under the Act, brings or participates in a proceeding under the Act or informs any person of an alleged contravention of the Act or regulations.

[51]. Creates offences for failing to comply with a requirement made by an information services officer to produce documents, hindering information services officers and giving information services officers false information.

Self-incrimination

[52]. Provides for protection against self-incrimination –

(1) It is a reasonable excuse for a natural person to refuse or fail to give information, produce a document or do any other thing that the person is required to do by or under this Part, if the giving of the information, production of the document or doing of the thing would tend to incriminate the person.

(2) Despite sub-section (1), it is not a reasonable excuse for a natural person to refuse or fail to produce a record or other document that the person is required to keep by this Act or the regulations, if the production of the record or other document would tend to incriminate the person.

[54 to 63]. Deals with court proceedings, prosecutions and recovery of money under the legislation.

Reverse onus of proof

[59]. In a prosecution of an employer for failing to pay an outworker an amount owed to the outworker 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.

[60]. Makes provision for recovery of money owed. A written demand must first be made to the employer within 6 years of the entitlement arising. A court may award interest in any order it makes. [61]. A court may order arrears (up to 6 years) to be paid in addition to penalties under the Act.

[62]. An employee may be represented by an employee or agent of a registered organisation or peak body (defined in [3]).

[63]. Proceedings against an unincorporated club may be brought against the Treasurer who is deemed to be the employer for the purposes of the Act.

[64]. The Minister must review the Act as soon as possible after 5 years of its operation.

Regulations

[65]. Enables the Governor in Council to make regulations in relation to any matter or thing permitted by the Act and prescribing 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.

Parliamentary Committees and Parliamentary Salaries and Superannuation Acts (Amendment) Bill

Introduced: 26 February 2003
Second Reading Speech: 27 February 2003
House: Legislative Assembly
Minister introducing Bill: Hon. S. Bracks MLA
Portfolio responsibility: Premier

Purpose

The Bill amends the Parliamentary Committees Act 1968 (‘the Act’) to establish 3 new Parliamentary Committees; insert transitional provisions to allow the Scrutiny of Acts and Regulations Committee to report on Acts passed in the current Parliamentary session passed up to 1 April 2003, lengthen the period in which the Committee may report on the disallowance of certain statutory rules. The Bill also amends the Parliamentary Salaries and Superannuation Act 1968.

Content and Committee comment

[Clauses]

[2].The amendments made by the Bill come into operation on the day after Royal Assent.

[4-5]. Make consequential amendments on the establishment of 3 new Parliamentary committees.

[6]. Reduces the size of the membership of the Public Accounts and Estimates Committee from a maximum of 10 to 9 Members as is the case for all other Committees established under the Act.

[7]. Provides transitional provisions in respect to the Scrutiny of Acts and Regulations Committee allowing it to report on Bills in the current session of Parliament passed up to 1 April 2003 which were passed prior to the formation of the Committee for the 55^th Parliament.

The clause also amends section 55 of the Act to allow the Committee the same number of sitting days to recommend the disallowance of a statutory rule notwithstanding the formation of the Committee of the 55^th Parliament taking place after a number of sitting days has elapsed for the purposes of the 18 sitting day rule in section 23(2)(a) of the Subordinate Legislation Act 1994.

[8]. Establishes 3 new Joint House Committees  –

• Rural and Regional Services and Development Committee,

• Outer Suburban/Interface Services and Development Committee, and

• Education and Training Committee.

[10]. Makes amendments to the Parliamentary Salaries and Superannuation Act 1968.

The Committee makes no further comment.

Pay-roll Tax (Maternity and Adoption Leave Exemption) Bill

Introduced: 26 February 2003
Second Reading Speech: 27 February 2003
House: Legislative Assembly
Minister introducing Bill: Hon. J. Brumby MLA
Portfolio responsibility: Treasurer

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 Royal Assent and its application is made retrospective to 1 January 2003.

[3]. Inserts a new section 11 to provide an exemption as from 1 January 2003 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.

Public Holidays and Shop Trading Reform Acts (Amendment) Bill

Introduced: 27 February 2003
Second Reading Speech: 4 March 2003
House: Legislative Council
Minister introducing Bill: Hon. M. Thomson MLC
Portfolio responsibility: Minister for Small Business

Purpose

The Bill appoints Easter Saturday as a public holiday and generally requires that shops be closed on Easter Sunday.

Content and Committee comment

[Clauses]

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

[3]. Provides for the appointment of Easter Saturday as a public holiday by amending the Public Holidays Act 1993.

[4]. Repeals a provision in the Public Holidays Act 1993 that currently disentitles a person, to whom the Act applies, to a holiday without loss of pay on Easter Saturday.

[5]. Provides for the amendment to the Shop Trading Reform Act 1996 to ensure that the definition of “ordinary shop closing times” includes Easter Sunday as well as Christmas Day, Good Friday and Anzac Day before 1 pm.

[6]. Empowers the Governor in Council, on the recommendation of the Minister, to exempt a shop, class of shop or shops in a specified area from the general requirement that shops be closed on Easter Sunday. This clause provides that the Minister may issue guidelines that are published in the Government Gazette setting out matters that the Minister may consider in dealing with applications for exemption. A breach of a condition carries a penalty of 100 penalty units ($10,000).

The Committee makes no further comment.

Retail Leases Bill

Introduced: 26 February 2003
Second Reading Speech: 27 February 2003
House: Legislative Assembly
Minister introducing Bill: Hon. J. Brumby MLA
Portfolio responsibility: Minister for Small Business

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 118 repeals the Retail Tenancies Reform Act 1998). Section 50 comes into operation on 1 July 2003.

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 Retail Tenancies Act 1986. The amendments take effect on the moment just before the repeal of the 1986 Act, which occurred on 1 July 1998.

The remaining provisions come into operation on proclamation but not later than by 1 May 2003.

[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)

[39]. Provides for the circumstances where a landlord can recover outgoings from the tenant, [40] non-specific outgoings, [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.

[84]. Provides for the functions of the Small Business 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 Small Business 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 Retail Tenancies Reform Act 1998 (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 the Section 85 Constitution Act 1975 statement in [98]).

[91]. VCAT may 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 –

Section 89(4) restricts the jurisdiction of the Supreme Court in regards to retail tenancy disputes so that disputes (with some exceptions) can generally only be justiciable before the Victorian Civil and Administrative Tribunal. This ensures that parties in dispute have access to a low-cost and timely forum to resolve disputes. A similar provision applies in the 1998 Act.

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)

Clause 2 provides that Part 12 comes into force immediately prior to the repeal of the Retail Tenancies 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 effect relevant existing leases as from 1 November 2003.

Part 13 – Amendment of Retail Tenancies Act 1986* (clauses 110 to 117)

* This Act was repealed on 1 July 1998 by section 50 of the Retail Tenancies Reform Act 1998 No. 14/1998 (the 1998 Act will be repealed by clause 118 of this Act – see [118] below).

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.

Part 14 – 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.

[122 and 123]. Make consequential amendments to the Shop Trading Reform Act 1996 and the Victorian Civil and Administrative Tribunal Act 1998.

The Committee makes no further comment.

Seafood Safety Bill

Introduced: 18 March 2003
Second Reading Speech: 20 March 2003
House: Legislative Assembly
Minister introducing Bill: Hon. R. Cameron MLA
Portfolio responsibility: Minister for Health

Purpose

The purpose of the Bill is to –

(a) complement the Food Act 1984 by providing a regulatory system under which all sectors in the seafood supply chain are required to manage food safety risks in accordance with the relevant applicable standards;

(b) make related amendments to the Meat Industry Act 1993;

(c) amend the Dairy Act 2000, the Food Act 1984 and the Fisheries Act 1995.

In brief the Bill will –

• provide for a scheme to regulate the safety of seafood in Victoria;

• define "seafood" and "seafood business";

• confer the administration of this Act on the Victorian Meat Authority (‘the Authority’) as re-named PrimeSafe by this Act;

• specify that the Food Act 1984 is to prevail in the event of any inconsistency;

• provide for the licensing of seafood businesses;

•  enable the making of Codes of Practice and the approval of food safety programs;

• provide for the enforcement of the Act, including the powers of authorised officers and matters relating to legal proceedings under the Act;

• enable specified decisions of the Authority to be reviewed by the Victorian Civil and Administrative Tribunal (‘VCAT’);

• empower the making of regulations for the purposes of the Bill;

• make related amendments to the Meat Industry Act 1993 and amends the Dairy Act 2000, the Food Act 1984 and the Fisheries Act 1995.

Content and Committee comment

[Clauses]

[2]. Clauses 1, 2, 74(2), 81 and 85 come into operation on the day after Royal Assent. The remaining clauses will commence on proclamation but not later than by 1 January 2005.

[4]. Defines and describes the term “seafood business”. Clause 8 of the Bill provides for certain businesses coming within the meaning of “seafood business” to be exempt from the application of the Bill.

[6]. Sets out the objectives and functions of the Authority - to ensure that all sectors in the seafood supply chain manage food safety risks in accordance with the relevant applicable standards.

[9]. Makes it an offence for a person to commence or conduct a seafood business unless that person holds a current and valid seafood safety licence in respect of the business.

[10]. Allows the Authority to grant exemptions to certain persons from the requirement to hold a seafood safety licence. [12]. Provides for licence fees to be set by the Authority.

[17]. It is an offence for a licensee not to comply with the conditions specified in a seafood safety licence.

[19]. Provides that the Authority may make Codes of Practice that have been approved by the Minister.

[22]. Sets out provisions regarding notification of the making of a Code of Practice, the availability of Codes of Practice and circumstances in which a Code of Practice can and cannot form the basis of a conviction or liability.

[23]. Requires a licensee to comply with any applicable Code of Practice. Failure to comply with any requirement of an applicable Code of Practice for grounds to refuse to renew, renew subject to conditions or cancel or suspend a seafood safety licence under [15].

Food Safety Programs (clauses 24 to 29)

[24]. A person holding a class of seafood safety licence must submit a food safety program to the Authority for approval.

[29]. The Authority may require the auditing of an approved food safety program to determine whether the program is being complied with and whether it is still adequate to meet the requirements under the Bill.

[30 to 31]. Allows authorised officers to take certain actions to ascertain whether provisions of the Bill are being complied with.

[32]. An authorised officer who believes on reasonable grounds that unfit seafood is on a premises (that is not a dwelling) or in a vehicle, the authorised officer may enter the premises or vehicle and search for and seize and remove or destroy or otherwise dispose of that seafood.

Search and seizure with consent of occupier

[33]. An authorised officer, who believes that a person has contravened a provision of or under the Bill, is authorised to enter and search any premises or vehicle with the consent of the occupier or operator.

Search by warrant

[34 to 36]. A search warrant may be issued by a magistrate, in accordance with the Magistrates' Court Act 1989, to an authorised officer and sets out the procedure for announcing entry under a search warrant and requires an authorised officer executing a warrant to identify themselves and give a copy of the warrant to the relevant person.  Compliance regarding prior announcement may be waived in certain cases where immediate entry is required.

[37]. Where appropriate an authorised officer executing the warrant may seize or take a sample of any thing, which is not of the kind described in the warrant.

[38]. A member of the police force may assist an authorised officer in exercising a power or function under the Bill.

[45]. Makes it an offence to hinder, obstruct, threaten or intimidate an authorised officer or a member of the police force in the exercise of a power under the Bill.

[46]. Makes it an offence to fail to provide information and answers if a person has been informed of the requirements of that clause.

[47]. It is an offence for a person to give information or produce a document to the Authority under the Bill that the person believes to be false or misleading in any material particular.

[48]. It is an offence to refuse entry to an authorised officer for the purpose of ascertaining whether provisions of the Bill have been, or are being, complied with.

Privilege against self-incrimination

[51]. Provides that it is a reasonable excuse for a natural person to refuse or fail to give information or meet any requirement under the Bill if doing so would tend to incriminate the person, except in the following cases –

• the person refuses or fails to produce a document required to be kept under the Bill; or

• the person refuses or fails to give his or her name and residential address.

[52]. Requires a licensee to send records relating to seafood to the Authority and to permit authorised officers to inspect and copy or abstract records required to be kept under the Bill.

[56]. Provides for a defence of due diligence to apply to persons charged with offences under the Bill.

[60]. A person affected by certain decisions of the Authority in relation to a seafood safety licence may apply to the VCAT for a review of the decision.

[61]. The Governor in Council may make regulations for or with respect to any matter or thing permitted or necessary to be prescribed to give effect to the Bill. This clause also clarifies how the regulation-making power may be exercised in certain cases and sets out particular matters that may be the subject of the regulations.

[66]. Inserts a new Part 3A into the Meat Industry Act 1993 concerning Codes of Practice to be made by the Authority.

New section 13D sets out provisions regarding notification of the making of a Code of Practice, the availability of the Code of Practice and circumstances in which a Code of Practice can and cannot form the basis of a conviction or liability.

New section 13E requires a licensee to comply with any applicable Code of Practice. Failure to comply with any requirement of an applicable Code of Practice is a ground for a refusal to renew a licence under section 20(1) or the cancellation or suspension of a licence under section 22(2) of the Meat Industry Act 1993.

The Committee makes no further comment.

Sentencing (Further Amendment) Bill

Introduced: 18 March 2003
Second Reading Speech: 19 March 2003
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 establishes the Sentencing Advisory Council (‘the Council’).

Content and Committee comment

[Clauses]

[2]. Other than clause 7 the amendments come into operation on proclamation but not later than 1 July 2004.

Clause 7 is deemed to have come into operation on 17 February 2003. Clause 7 is a statute law revision amendment to section 11 of the Sentencing (Amendment) Act 2002 and corrects an inadvertent reference to the insertion of a new section 4C in the Magistrates’ Court Act 1989.

[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.

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.

Small Business Commissioner Bill

Introduced: 26 February 2003
Second Reading Speech: 27 February 2003
House: Legislative Assembly
Minister introducing Bill: Hon. J. Brumby MLA
Portfolio responsibility: Minister for Small Business

Purpose

The Bill establishes the Office of Small Business Commissioner to enhance a competitive and fair operating environment for small business in Victoria.

Content and Committee comment

[Clauses]

[2]. The Bill to come into operation on a day or days to be proclaimed, or on 1 May 2003 if no commencement date has been proclaimed by then.

[3 and 4]. Defines the term “Commissioner” to means Small Business Commissioner. Clause 4 provides for the establishment of a Small Business Commissioner to be appointed by the Governor in Council.

[5 and 6]. Provides for the functions and powers of the Small Business Commissioner.

[7]. Deals with the terms and conditions of the appointment of the Commissioner.

[9]. Provides that staff may be employed under Part 3 of the Public Sector Management and Employment Act 1998 to enable the Commissioner to perform his or her functions or powers.

[10]. Provides that the Commissioner may request assistance or information from any other public authority and may engage consultants.

[11]. Enables the Commissioner to delegate to staff employed under Part 3 of the Public Sector Management and Employment Act 1998 any power under the proposed Act, except the power of delegation.

[15]. Inserts a new section 11(8) in the Liquor Control Reform Act 1998 to provide that the Commissioner may investigate compliance by licensees of packaged liquor licences with a code of conduct.

The Committee makes no further comment.

Southern and Eastern Integrated Transport Authority Bill

Introduced: 18 March 2003
Second Reading Speech: 20 March 2003
House: Legislative Assembly
Minister introducing Bill: Hon. P. Batchelor MLA
Portfolio responsibility: Minister for Transport

Purpose

This Bill establishes the Southern and Eastern Integrated Transport Authority (‘the Authority’) and provides that Authority with the powers and functions to oversee and deliver the Southern and Eastern Integrated Transport Project.

Content and Committee comment

[Clauses]

[2]. The Bill comes into operation on proclamation but not late than 31 December 2003.

[4]. Defines the Project as the project for an integrated transport corridor connecting the Eastern Freeway and the Frankston Freeway.

[6]. Establishes the Authority and [8] provides for the Authority to consist of between 3 and 5 members appointed by the Governor in Council. [10]. Provides for the appointment of a chairperson and a deputy chairperson by the Governor in Council. [11 to 16]. Provides for other appointment, procedural and other like matters. [18]. Provides for the appointment of a chief executive officer by the Authority. [19 and 20]. Confers functions and powers on the Authority.

[21]. The Authority may delegate all its powers except the power of delegation to a member of the authority, the CEO or other employee of the authority or with the approval of the Minister a person employed under Part 3 of the Public Sector Management and Employment Act 1998.

[25]. Is a general regulation making power to give effect to the purposes of the Act.

The Committee makes no further comment.

Terrorism (Commonwealth Powers) Bill

Introduced: 6 February 2003
Second Reading Speech: 27 February 2003
House: Legislative Council
Minister introducing Bill: Hon. J. Madden MLC
Portfolio responsibility: Premier

Purpose

The Bill refers certain matters relating to terrorist acts to the Commonwealth Parliament, under section 51 (xxxvii) of the Commonwealth Constitution thereby allowing the Commonwealth Parliament to make laws concerning terrorist acts.

The existing Commonwealth powers supporting terrorism offences may be constitutionally insufficient to ensure national coverage. The States have the power to eliminate doubts about the extent of the Commonwealth’s constitutional power in this area by referring matters otherwise within their legislative competence to the Commonwealth Parliament.

Section 51 (xxxvii) of the Commonwealth Constitution provides that the Commonwealth shall have power to make laws with respect to –

‘matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law’

All other States have passed comparable Bills.

The Committee notes the following extract from the Minister’s Second Reading Speech –

Using its existing constitutional powers, the Commonwealth introduced terrorism offences into the Commonwealth Criminal Code in mid-2002. However, as the Commonwealth does not have specific law-making powers relating to terrorism or the criminal law generally, there exists a possibility that its terrorism laws may not fully cover all examples of relevant terrorist acts. Any gap in the coverage of these laws, however slight, is undesirable and could result in the prosecution of a terrorist suspect being frustrated on technical grounds.

Victoria and the other States have agreed to lend so much of their legislative authority to the Commonwealth as is necessary to ensure that any constitutional gaps are filled and, as far as possible, any uncertainty about the national application of these laws is eliminated.

The Bill does this by referring power to the Commonwealth under section 51(xxxvii) of the Commonwealth Constitution. The Bill also refers the power to amend those offences as required. Using the referred powers from the States, the Commonwealth will re-enact its terrorism offences, which will apply comprehensively.

…

The Bill provides for safeguards to protect Victoria’s interests while fully supporting the Commonwealth in securing effective national terrorism offences. The Bill provides for a referral of power that is limited to only that necessary to enact terrorism offences in the same form, or substantially the same form, as the present Commonwealth terrorism offences and to amend them as required.

Victoria’s overlapping criminal law has been preserved by express provisions in the proposed Commonwealth legislation guaranteeing the concurrent operation of State criminal laws and Commonwealth terrorism offences.

The Commonwealth and the States have agreed that the Commonwealth terrorism offences will not be amended except upon the agreement of a majority of the States and territories, including four States.

Victoria’s interests are further protected by the power to terminate the reference, for any reason, by proclamation on three months notice.

Content and Committee comment

[Clauses]

[2]. The Act comes into operation on the day after Royal Assent.

[4]. Provides for the reference of matters to the Commonwealth Parliament and limits them to those necessary to provide support for the Commonwealth Parliament to re-enact Part 5.3 of the Commonwealth Criminal Code (set out in Schedule 1 to the Bill) and to make amendments to that Part and Chapter 2 of the Commonwealth Criminal Code as necessary.

The references have effect only to the extent that the matters referred are not otherwise within the legislative power of the Commonwealth Parliament and are within the legislative power of the State Parliament.

[5]. Provides for the termination of the references by proclamation published in the Government Gazette but not earlier than at least three months after the day that the proclamation is published. A termination proclamation may be revoked by publishing a further proclamation in the Government Gazette prior to the revocation taking place.

Schedule 1

The Schedule contains the text of Part 5.3 of the Commonwealth Criminal Code which it is proposed the Commonwealth Parliament will re-enact and which may be amended with the support of the references.

Summary of new Commonwealth Terrorist Offences

The offences in Part 5.3 of the Commonwealth Criminal Code are –

• engaging in a terrorist act (proposed section 101.1) or doing any act in preparation for or planning a terrorist act (proposed section 101.6);

• providing or receiving training connected with a terrorist act (proposed section 101.2);

• possessing things connected with a terrorist act (proposed section 101.4);

• collecting or making documents likely to facilitate a terrorist act (proposed section 101.5);

• directing the activities of a terrorist organisation (proposed section 102.2);

• membership of a terrorist organisation (proposed section 102.3);

• recruiting for a terrorist organisation (proposed section 102.4);

• training, or receiving training from, a terrorist organisation (proposed section 102.5);

• getting funds to or from a terrorist organisation (proposed section 102.6);

• providing support to a terrorist organisation (proposed section 102.7);

• financing a terrorist act (proposed section 103.1).

The New Commonwealth Offences

Terrorist act defined

100.1 defines “terrorist act” as an action or threat of action where –

(a)   the action falls within subsection (2) and does not fall within subsection (3); and

(b)   the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and

(c)   the action is done or the threat is made with the intention of:

(i)  coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or

(ii)  intimidating the public or a section of the public.

Subsection (2) – Terrorist act includes – an act that causes serious harm that is physical harm to a person; or causes serious damage to property; or causes a person’s death; or endangers a person’s life, other than the life of the person taking the action; or creates a serious risk to the health or safety of the public or a section of the public; or seriously interferes with, seriously disrupts, or destroys, an electronic system.

Subsection (3) – Terrorist act does not include – advocacy, protest, dissent or industrial action; that is not intended to cause serious harm that is physical harm to a person; or to cause a person’s death; or to endanger the life of a person, other than the person taking the action; or to create a serious risk to the health or safety of the public or a section of the public.

Division 101 – Terrorism

101.1 Terrorist acts

(1)   A person commits an offence if the person engages in a terrorist act. Penalty: Imprisonment for life.

101.2 Providing or receiving training connected with terrorist acts

(1)   A person commits an offence if:

(a)  the person provides or receives training; and

(b)  the training is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and

(c)  the person mentioned in paragraph (a) knows of the connection described in paragraph (b). Penalty: Imprisonment for
 25 years.

(2)   A person commits an offence if:

(a) the person provides or receives training; and

(b) the training is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and

(c) the person mentioned in paragraph (a) is reckless as to the existence of the connection described in paragraph (b). Penalty: Imprisonment for 15 years.

(3)   A person commits an offence under this section even if the terrorist act does not occur.

101.4 Possessing things connected with terrorist acts

(1)   A person commits an offence if:

(a)  the person possesses a thing; and

(b)  the thing is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and

(c)  the person mentioned in paragraph (a) knows of the connection described in paragraph (b). Penalty: Imprisonment for 15 years.

(2)   A person commits an offence if:

(a)  the person possesses a thing; and

(b)  the thing is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and

(c) the person mentioned in paragraph (a) is reckless as to the existence of the connection described in paragraph (b). Penalty: Imprisonment for 10 years.

(3)   A person commits an offence under subsection (1) or (2) even if the terrorist act does not occur.

101.5 Collecting or making documents likely to facilitate terrorist acts.

101.6 Other acts done in preparation for, or planning, terrorist acts

(1)  A person commits an offence if the person does any act in preparation for, or planning, a terrorist act.
Penalty: Imprisonment for life.

(2)  A person commits an offence under subsection (1) even if the terrorist act does not occur.

Division 102 – Terrorist organisations (relevant extracts only)

102.1 – Definitions

(1). Definitions for “member” and “terrorist organisation” are provided.

‘terrorist organisation’ means –

(a) an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not the terrorist act occurs); or

(b)  an organisation that is specified by the regulations for the purposes of this paragraph (see subsections (2), (3) and (4)).

(2) Before the Governor-General makes a regulation specifying an organisation for the purposes of paragraph (b) of the definition of terrorist organisation in this section, the Minister must be satisfied on reasonable grounds that –

(a)  the Security Council of the United Nations has made a decision relating wholly or partly to terrorism; and

(b) the organisation is identified in the decision, or using a mechanism established under the decision, as an organisation to which the decision relates; and

(c) the organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not the terrorist act has occurred or will occur).

(3) Regulations for the purposes of paragraph (b) of the definition of terrorist organisation in this section cease to have effect on the second anniversary of the day on which they take effect.

Offences

102.2 – Directing the activities of a terrorist organisation

(1)  A person commits an offence if:

(a)  the person intentionally directs the activities of an organisation; and

(b)  the organisation is a terrorist organisation; and

(c)  the person knows the organisation is a terrorist organisation. Penalty: Imprisonment for 25 years. 

(2)  A person commits an offence if:

(a)  the person intentionally directs the activities of an organisation; and

(b)  the organisation is a terrorist organisation; and

(c)  the person is reckless as to whether the organisation is a terrorist organisation. Penalty: Imprisonment for 15 years.

102.3 – Membership of a terrorist organisation

(1)  A person commits an offence if:

(a)  the person intentionally is a member of an organisation; and

(b) the organisation is a terrorist organisation because of paragraph (b) of the definition of terrorist organisation in this Division (whether or not the organisation is a terrorist organisation because of paragraph (a) of that definition also); and

(c)  the person knows the organisation is a terrorist organisation. Penalty: Imprisonment for 10 years.

(2)  Subsection (1) does not apply if the person proves that he or she took all reasonable steps to cease to be a member of the organisation as soon as practicable after the person knew that the organisation was a terrorist organisation. 

Note: A defendant bears a legal burden in relation to the matter in subsection (2).

102.4 – Recruiting for a terrorist organisation

(1)   A person commits an offence if:

(a)  the person intentionally recruits a person to join, or participate in the activities of, an organisation; and

(b)  the organisation is a terrorist organisation; and

(c)  the first-mentioned person knows the organisation is a terrorist organisation. Penalty: Imprisonment for 25 years.

(2)   A person commits an offence if:

(a)  the person intentionally recruits a person to join, or participate in the activities of, an organisation; and

(b)  the organisation is a terrorist organisation; and

(c) the first-mentioned person is reckless as to whether the organisation is a terrorist organisation. Penalty: Imprisonment for 15 years.

102.5 – Training a terrorist organisation or receiving training from a terrorist organisation

(1)   A person commits an offence if:

(a)   the person intentionally provides training to, or intentionally receives training from, an organisation; and

(b)   the organisation is a terrorist organisation; and

(c)   the person knows the organisation is a terrorist organisation. Penalty: Imprisonment for 25 years.

(2)   A person commits an offence if:

(a)   the person intentionally provides training to, or intentionally receives training from, an organisation; and

(b)   the organisation is a terrorist organisation; and

(c)   the person is reckless as to whether the organisation is a terrorist organisation. Penalty: Imprisonment for 15 years.

102.6 – Getting funds to or from a terrorist organisation

(1)   A person commits an offence if:

(a) the person intentionally receives funds from, or makes funds available to, an organisation (whether directly or indirectly); and

(b)  the organisation is a terrorist organisation; and

(c)  the person knows the organisation is a terrorist organisation. Penalty: Imprisonment for 25 years. 

(2)   A person commits an offence if:

(a) the person intentionally receives funds from, or makes funds available to, an organisation (whether directly or indirectly); and

(b)  the organisation is a terrorist organisation; and

(c)  the person is reckless as to whether the organisation is a terrorist organisation. Penalty: Imprisonment for 15 years.

(3)  Subsections (1) and (2) do not apply to the person’s receipt of funds from the organisation if the person proves that he or she received the funds solely for the purpose of the provision of:

(a)   legal representation for a person in proceedings relating to this Division; or

(b)   assistance to the organisation for it to comply with a law of the Commonwealth or a State or Territory.

Note: A defendant bears a legal burden in relation to the matter in subsection (3).

102.7 – Providing support to a terrorist organisation

(1)  A person commits an offence if:

(a)  the person intentionally provides to an organisation support or resources that would help the organisation engage in an activity described in paragraph (a) of the definition of terrorist organisation in this Division; and

(b)  the organisation is a terrorist organisation; and

(c)  the person knows the organisation is a terrorist organisation. Penalty: Imprisonment for 25 years.

(2)   A person commits an offence if:

(a)  the person intentionally provides to an organisation support or resources that would help the organisation engage in an activity described in paragraph (a) of the definition of terrorist organisation in this Division; and

(b)  the organisation is a terrorist organisation; and

(c)  the person is reckless as to whether the organisation is a terrorist organisation. Penalty: Imprisonment for 15 years. 

102.10 – Allows for alternative verdicts to apply in certain circumstances

103.1 Financing terrorism

(1)   A person commits an offence if:

(a)  the person provides or collects funds; and

(b) the person is reckless as to whether the funds will be used to facilitate or engage in a terrorist act. Penalty: Imprisonment for life.

(2)   A person commits an offence under subsection (1) even if the terrorist act does not occur.

The Committee makes no further comment.

Terrorism (Community Protection) Bill

Introduced: 26 February 2003
Second Reading Speech: 27 February 2002
House: Legislative Assembly
Minister introducing Bill: Hon. S. Bracks MLA
Portfolio responsibility: Premier

Purpose

The Bill –

• provides for a covert search warrant regime;

• provides for mandatory reporting of the theft or loss of certain chemicals and substances;

• imposes risk management obligations on operators of certain essential services; and

• protects counter-terrorism methods from disclosure in legal proceedings.

• permits a conclusive certificate to be issued by certain senior public servants to create an exemption from disclosure of certain documents under the Freedom of Information Act 1982.

Submissions

The Committee received written submissions from the Law Institute of Victoria, and the Victorian Privacy Commissioner.

The Committee received evidence on 7 April 2003 from the Victorian Privacy Commissioner, Mr Paul Chadwick and the Senior Policy Officer of the Office of the Victorian Privacy Commissioner, Ms Michelle Fisher.

Content and Committee comment

[Clauses]

Commencement and termination of Act

[2]. Parts 1 (preliminary), 3 (police powers to detain and decontaminate), 5 (protection of counter-terrorism information), 7 (general) and 8 (amendment to Freedom of Information Act 1982, etc) commence on the day after Royal Assent. The remaining provisions Part 2 (covert search warrants), Part 4 (mandatory reporting of theft or loss of chemicals), Part 6 (risk management reports) commence on proclamation but not later than 1 July 2004.

Clause 41 provides that the Act expires on 1 December 2006. If continued legislation is required Parliament will need to consider a legislative response to terrorism at that time

[4]. Defines “terrorist act”. This definition is in the same terms as that in Chapter 5, Part 5.3 of the Commonwealth Criminal Code.