Alert Digest No 2 of 2003

Tuesday, 29 April 2003

Catchment and Land Protection (Amendment) Bill

Introduced: 9 April 2003
Second Reading Speech: 10 April 2003
House: Legislative Council
Minister introducing Bill: Hon. C. Board MLC
Portfolio responsibility: Minister for Environment

Purpose

The Bill amends the Catchment and Land Protection Act 1994 (‘the Act’) to make further provision in relation to the control of noxious weeds and pest animals and increase penalties for existing offences.

Content and Committee comment

[2]. The provisions in the Bill come into operation on proclamation but not later than by 5 January 2004.

[5]. Amends section 35(1) of Act to replace the current two-tier penalty for failure to comply with a land use condition with a single higher maximum penalty of 60 penalty units.

[8]. Substitutes new section 41(1) into the Act to reflect the fact that land management notices run with the land and will therefore bind subsequent land owners who are aware of the notice as well as the original land owner served with the notice.

[15]. Inserts new section 58A to allow for an emergency declaration of State prohibited weeds by the Minister, if satisfied urgent action is required. This amendment is intended to provide for rapid intervention in the event of an outbreak of new species of weeds that pose a significant economic, environmental and social impact to Victoria. The emergency declaration only applies for a maximum of 3 months.

[19]. Inserts new section 70A into the Act. New section 70A is based on section 70(1)(a) of the Act, which is now repealed under clause 20 of the Bill. New section 70A seeks to prevent the spread of weeds by prohibiting the movement of certain vehicles or machinery, implements and other equipment from land on to a road unless reasonable precautions are taken to ensure such vehicles or equipment are free from noxious weeds.

[24]. Amends section 75 of the Act to increase the maximum penalties for importing, keeping or selling prohibited pest animals, controlled pest animals, regulated pest animals or established pest animals.

[28]. Inserts new section 79A into the Act to require an authorised officer to produce evidence of his or her appointment as an authorised officer before exercising a power under Part 9 of the Act or during the exercise of such powers if asked to do so.

Search and Entry Powers

[29]. Substitutes revised powers of authorised officers for sections 80, 81, 82 and 83 of the Act.

New section 80 provides an authorised officer with the power to enter and search land and exercise certain powers with the consent of the occupier if the authorised officer believes on reasonable grounds that any provision of the Act or the regulations has not been or is not being complied with.

New section 81 provides an authorised officer with the power to enter and search land (other than a dwelling) and exercise certain powers after giving 24 hours notice to the occupier.

An authorised officer cannot enter the land if the occupier responds to the notice by stating that entry to the land is refused. Notice given under new section 81 must inform the occupier of the purpose of the search and details of their rights.

New section 82 provides an authorised officer with the power to enter and search land (other than a dwelling) and exercise certain powers without consent or notice in certain circumstances where immediate action is required to deal with a State prohibited weed, to check compliance with an interim land management notice, to undertake work by the Secretary under section 79 of the Act or in certain circumstances where the authorised officer believes on reasonable grounds that a serious land degradation problem exists on the land.

New section 83 provides an authorised officer with the power to enter and search land and exercise certain powers in circumstances where a magistrate has issued the officer with a search warrant.

New section 83A provides for an authorised officer to seize or take a sample of a thing not mentioned in the warrant in certain circumstances.

New section 83B sets out the procedure for announcing entry when executing a search warrant.

New section 83C sets out the procedure for an authorised officer to identify himself or herself when executing a search warrant and for providing copies of the warrant.

New section 83D provides an authorised officer or a member of the police force with the power to stop, enter and search a vehicle or boat which he or she reasonably believes has been used by persons committing an offence against Division 3 of Part 8 of the Act (Importing, Keeping and Trading in Pest Animals). The authorised officer may exercise certain powers when conducting a search under new section 83D.

New section 83L allows an authorised officer to issue a retention notice to a person holding a thing to retain that thing in his or her possession if the officer believes on reasonable grounds that that thing has been taken or held in contravention of a requirement relating to pest animals in Division 3 of Part 8 of the Act.

[33]. Amends section 95(1)(c) to ensure that regulations can be made in relation to the maximum number of established pest animals and the types of species of established pest animals which can be kept in addition to the purposes for which and the conditions under which established pest animals can be kept, without the need for a permit under Division 3 of Part 8.

The Committee makes no further comment.

Child Employment Bill

Introduced: 8 April 2003
Second Reading Speech: 9 April 2003
House: Legislative Assembly
Minister introducing Bill: Hon. R. Hulls MLA
Portfolio responsibility: Minister for Industrial Relations

Purpose

The Bill reforms the law relating to the employment of children under the age of 15.

Content and Committee comment

[Clauses]

[2]. The Act comes into operation on proclamation but not later than 1 July 2004.

[3]. Defines “child” for the purposes of the Act as a child under the age of 15. The clause also defines “entertainment”.

[4]. Defines “employment” for the purposes of the Act. The clause also provides examples of activities that do not constitute employment for the purposes of the Act.

[5]. Defines “light work” for the purposes of the Act and provides examples of light work.

[8]. A child may be employed: (a) in accordance with a permit; or (b) in a family business (see [22 to 24]).

[9]. It is an offence for an employer to employ a child, or a parent to allow their child to be employed, without a permit. This clause does not, however, apply to the employment of a child in a family business.

Age limits

[10]. Under 11 years - a person must not employ a child under 11 years.

Over 11 years but under 13 years - are permitted to be employed delivering newspapers, pamphlets or other advertising material or making deliveries for a registered pharmacist. (not applicable to a family business or entertainment see section 23).

Over 13 years but under 15 years – the Act regulates the employment of children aged between 13 and 15 years.

Employment during school hours prohibited

[11]. Makes it an offence to employ a child during school hours on a school day unless the Minister for Education and Training has exempted the child from attendance under the Community Services Act 1970. This offence also applies to parents who employ their own children in a family business. It also makes it an offence for a parent or guardian to allow a child to be employed, whether for a family business or for another employer, if the nature of the employment is such that it will prejudice the child's attendance at school or their capacity to benefit from instruction.

[12]. Makes it an offence to employ a child in door to door sales; deep-sea fishing; the building and construction industry prior to lock-up stage.

The clause also gives the Governor in Council the power to declare a kind of employment to be prohibited employment. This will allow the Governor in Council to declare any industry or type of work to be prohibited employment.

Permits and processes for children to engage in employment

[13]. States that a parent or guardian may apply for a child employment permit. The parent or guardian is responsible for applying for a permit prior to a child being employed.

[14]. Details that a child employment permit application must contain the signed consent to a police check of the criminal record of the employer and each person who will supervise, tutor or chaperone the child.

[17 and 18]. The Secretary has power to place conditions on a permit, to vary or cancel a permit at any time by providing notice in writing to the parent or guardian.

Only light work and limited hours of work permitted

[20]. Provides a restriction on the employment of children to light work only.

[21]. Restricts the number of hours a child can work and the hours of the day and night during which a child can be employed.

During school term 3 hours per day to a maximum of 12 hours per week

Outside school term 6 hours per day to a maximum of 30 hours per week

[22]. Provides that a child must receive a break of at least 30 minutes after every 3 hours of work and a break of at least 12 hours between finishing one shift and commencing the next. The break may be paid or unpaid. [23]. Makes it an offence to employ a child in contravention of the conditions in the Act.

Employment in a Family Business

[24]. A child may be employed in a family business without a permit; however, a child cannot be employed in prohibited employment.

[26]. Makes it an offence for a parent or guardian to employ a child in a family business if the parent or guardian does not directly supervise the child.

Employment in Entertainment and mandatory codes of practice

[27]. A child may be employed in entertainment in accordance with a permit.

[28]. The provisions relating to age limits [10], hours of work [21] and rest breaks [22] do not apply to employment in entertainment.

Mandatory code of practice

[29]. Requires the Minister to make a mandatory code of practice for the employment of children in entertainment.

[30]. Provides that the mandatory code will contain provisions that regulate the employment of children in entertainment and that the code may apply, adopt or incorporate any other document. As in force at a particular time or as in force from time to time.

[31]. Provides that the code is made by order published in the Government Gazette and that it will take effect on the day that the order is published or on a later day specified in the order.

[32]. Makes it an offence for an employer to contravene the mandatory code with penalties applying of 100 penalty units for corporations and 60 penalty units for individuals.

Insufficiently subjects the exercise of legislative power to parliamentary scrutiny – Parliamentary Committees Act 1968, s.4D(a)(v)

The Committee notes that the Bill allows the making of mandatory codes of practice in respect to the employment of children in entertainment. The breach of the code may render persons liable to penalties of up to 100 penalty units ($10,000). The Committee notes that any such code may apply, adopt or incorporate the provisions of external documents in existence at the time the code is made or as amended from time to time.

The Committee notes that the mandatory code is not a statutory rule within the meaning of the Subordinate Legislation Act 1994 and is therefore not subject to scrutiny by the Committee, tabling in, or disallowance by the Parliament.

Given the code is not subject to any form of scrutiny and may include standards and practices published by any other body the Committee is concerned that the mandatory code as proposed may Insufficiently subject the exercise of legislative power to parliamentary scrutiny.

The Committee will seek further advice from the Minister concerning the necessity to use such an incorporating provision and why the code should not be subject to tabling, scrutiny or disallowance.

Pending the response of the Minister the Committee draws attention to the provision.

Other restrictions

[35]. Makes it an offence for a person to cause or permit a child to do any of the following things if they are not light work –

participate in a church service or religious program;

participate in an occasional project or entertainment where the net proceeds go to the benefit of a church or school;

perform any work for a non-profit organisation;

participate in a sporting activity (including coaching, refereeing or umpiring).

This clause does not apply to parents or guardians merely because they permit their child to engage in activity that is being conducted or supervised by another person or body (as above).

[36]. Makes it an offence for a non-profit organisation to employ a child in door-to-door fundraising activities or in any work in a public place between the hours of 6:00 p.m. (or sunset, whichever is earlier) and 6:00 a.m. (or sunrise, whichever is later) unless the child is accompanied by an adult.

Compliance

[37 to 39]. Sets out the functions, appointment of and identity cards for child employment officers.

[41]. States that a compliance power may be exercised to investigate an application for a permit or in determining compliance with the Act or the regulations.

[42]. Allows child employment officers to enter any premises identified in an application for a permit as an intended workplace of a child or where they have reasonable grounds for believing that a child is or has been performing work. Entry must be without force and should occur during ordinary working hours. The clause requires certain information to be given to the occupier where the occupier is present and is not present at the time of entry. Entry to any part of any premises used for residential purposes is only with the signed consent of the occupier, however consent is not required where any part of the premises is used both for residential purposes and for work.

[44]. Allows a child employment officer to require by written notice the production of a document for the purposes of investigating an application for a permit or determining compliance with this Act.

[47]. It is an offence to fail to produce documents or hinder child employment officers, and to give false information or false or misleading documents to child employment officers.

Privilege against self-incrimination

[48]. Provides that a person may refuse to give information or produce a document to a child employment officer, on the grounds that it may incriminate them. This does not apply to a document if it is a document the person is required to keep under the Act or the regulations.

The Committee notes the privilege against self-incrimination is abridged in respect to documents required to be kept under the Act.

The Committee accepts that this is an appropriate balance between the need to obtain information under statute and the rights of individuals.

[52]. Allows the Secretary to delegate any of the powers of the Secretary under this Act to a child employment officer [36] except the power of delegation.

The Committee notes the delegation power and considers the delegation is sufficiently defined for the purposes of the Act.

[53]. Allows the Governor in Council to make regulations, including in relation to requirements to keep and maintain documents and records and to give effect to the purposes of the Act.

The Committee notes the regulation making powers and accepts that they are appropriate to give effect to the purposes of the legislation.

[54]. Repeals Division 9 of Part III of the Community Services Act 1970, these being the current provisions relating to child employment. Amongst the provisions in the Division to be repealed is section 78 which makes it an offence to cause or procure a child to beg or receive alms or to induce or allow a child to perform or sing for such a purpose.

The Committee notes the repeal of Division 9 which includes the offence of causing or procuring a child to beg or receive alms and the inducing of giving of alms.

In respect to the rights of children the Committee will seek clarification from the Minister whether the Bill has comparable provisions to cover such an offence and whether the definition of employment in section 4 would encompass begging or inducing the giving of alms.

[55]. Amends section 74G of the Community Services Act 1970 to restate and clarify the grounds on which the Minister (for Education and training) may exempt a child from attendance at school.

[56 and 57]. Clarify work experience provisions in the Education Act 1958.

The Committee makes no further comment.

Constitution (Parliamentary Reform) Act 2003

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

Jurisdiction

The Committee has jurisdiction to report on this Act pursuant to section 4D(ba) of the Parliamentary Committees Act 1968.

Purpose

The Bill amends the Constitution Act 1975 (‘the Act’) to –

provide for a fixed 4 year term Parliament unless the Assembly is dissolved sooner;

re-constitute the Legislative Council to consist of 40 members elected from 8 regions each returning 5 members;

provide for the election of members of the Legislative Council by using a proportional representation system with optional preferential voting;

provide for the filling of casual vacancies in the Legislative Council by a joint sitting of the Legislative Council and the Legislative Assembly;

provide that the President of the Legislative Council has a deliberative vote but not a casting vote;

recognise the principle of Government mandate;

remove the power of the Legislative Council to block the Annual Appropriation Bill;

enact a procedure to deal with disputes concerning Bills between the Legislative Assembly and the Legislative Council; and

provide for the entrenchment of certain legislative provisions.

Content and Committee comment

[Clauses]

[2]. Part 1 comes into operation on the day on which this Act receives the Royal Assent. Divisions 1, 3 and 4 of Part 2, Division 1 of Part 3 and Division 1 of Part 4 come into operation on a day to be proclaimed. Division 2 of Parts 2, Division 2 of Part 3 and Division 2 of Part 4 come into operation on the day of the dissolution or other lawful determination of the Legislative Assembly next occurring after the day on which this Act receives the Royal Assent. The remaining provisions commence not later than by 1 January 2004.

Part 2 – Amendments to the Constitution Act 1975

Division 1 – Fixed 4 year terms for Parliament

[3]. Provides that the Assembly may only be dissolved by the Governor if there is a motion of no confidence in the Premier and other Ministers, or the Premier advises the Governor to dissolve the Assembly if the dispute resolution process has failed to resolve a deadlocked Bill.

[4]. Inserts a new section 8A which sets out the requirements for a motion of no confidence in the Premier and other Ministers to be passed, before a dissolution of the Assembly may occur.

[5]. Substitutes a new section 28 to provide that the Council will exist as long as the Assembly co-exists. If the Assembly is dissolved or determined, the Council will also cease to exist.

The clause also terminates the entire Council on the dissolution of the Assembly after these amendments come into force.

The question of the early termination of the term of office of half the members of the Legislative Council that will occur as a result of these amendments is a matter for Parliament’s consideration.

[6]. Insert new sections 38 and 38A to provide for a 4 year duration of the Assembly and a legislative prescription for the date of each subsequent general election for the Victorian Parliament.

Division 2 – Proportional Representation and other reforms of the Council

[8]. Substitutes two new sections for sections 26 and 27 to provide for the division of the State into 8 regions, each region returning 5 members. Also refer to [45] which provides the list of Legislative Assembly districts that are proposed to form each new Legislative Council regions.

[9]. Inserts a new section 27A which provides that in the case of the vacancy of a Member of the Council, a new Member will be selected from the same political party as that of the vacating member by a joint sitting of both Houses. Where the vacancy is that of an independent the replacement must be selected by a special majority (3/5ths) of members present at a joint sitting.

[10]. Provides that in future Parliaments only the President and Ministers may use the title ‘Honourable’. The title may also be used by Members ceasing to hold office as a Member of the Council prior to the commencement of the provision (the next dissolution of the Parliament).

President of the Council to have a deliberative vote only

[11]. Amends section 32 to provide that the President of the Council shall have a deliberative vote but not a casting vote in the event of an equality of votes. The quorum of the Council will now include the President.

Division 3 – Improving the Relationship Between the Houses

[12]. Inserts a new section 16A providing that in exercising its powers as a House of Review, the Council is to recognise the Government’s specific and general mandate.

[13]. Substitutes section 62 of the Act and provides that an appropriation Bill must originate in the Assembly, and may be rejected, but not altered by the Council subject to section 65.

[14]. Substitutes section 65 and provides that if within one month of an appropriation Bill passing the Assembly, the Council fails to pass it or returns it to the Assembly suggesting an amendment to which the Assembly does not agree, the Bill must be presented for Royal Assent and becomes an Act of the Parliament, notwithstanding that the Council did not pass the Bill.

The question of the constitutional powers of the Legislative Council to amend or reject an Appropriation Bill as proposed in the amendments to the Constitution Act 1975 is a matter for Parliament’s consideration.

[15]. Inserts a new Division 9A (new sections 65A to 65G) providing for a dispute resolution process concerning a deadlocked Bill between the Assembly and the Council. This Division provides for the establishment of a Dispute Resolution Committee at the commencement of each Parliament and allows for the possibility of a Joint House Sitting to resolve a deadlocked disputed Bill.

Division 4 – Entrenchment by Referendum, Special and Absolute Majorities

[17]. Amends section 18 to provide for three methods of legislative entrenchment by a referendum of the Victorian electors; a special majority of 3/5ths of the whole number of members of the Assembly and the Council; an absolute majority of the whole number of the members of the Assembly and the Council.

The Committee notes the following comments in the Second Reading Speech –

When is a referendum, special majority of absolute majority required?

The provisions which can only be amended after the proposed change has been approved by a majority of Victorian voters, voting at a referendum include, as the constitution commission described, ‘core provisions’ of our constitution. These are:

the requirement to hold a referendum;

provisions relating to the regions, number of members and quorum of the Council and the President;

provisions relating to the districts, duration of, quorum of and number of members of the Assembly and to the Speaker;

the requirement that there be a session of Parliament each year;

the provision relating to appropriation bills and the inability of the Council to block passage of such bills;

the provision establishing a process for dispute resolution;

the provisions which recognise that local government is a distinct and essential tier of government and the ability of Parliament to legislate in respect of local government;

the provisions ensuring the continuance of the Supreme Court;

provisions establishing the offices of the Director of Public Prosecutions and Auditor-General and matters relating to those offices; and

provisions establishing the executive arm of government and relating to matters of the Executive Council and the tendering of advice to the Governor.

New sections will also be inserted into the Constitution which make the Electoral Commissioner and the Ombudsman independent officers of the Parliament. This means these important office-holders will be responsible to the Parliament, not the government, and can only be dismissed by the Parliament. These too will be entrenched by referendum.

Similarly, the Bill requires that there will always be an independent body, such as the Electoral Boundaries Commission, to review and settle Victoria’s electoral boundaries.

The Bill likewise guarantees the existence of freedom of information legislation in this State.

The Constitution Act will also be amended to formalise the place of local government as a distinct and essential level of government and that councils are democratically elected and accountable to their constituents.

When is a Special Majority required?

Other procedural provisions are entrenched by means of a special majority, comprising a three-fifths majority of all members of both houses. The requirement for a special majority increases the safeguards for those sections so entrenched, even more so than the absolute majority method which currently features in our constitution.

The provisions that are entrenched by a special three-fifths majority are:

the requirement for a special majority;

the Crown and the Governor;

provisions establishing the constitution and powers of the Parliament;

provisions which deal with the membership of the houses and qualifications of voters; and

the provision which enables a house to relieve a member of the consequences of a breach of the office of profit provisions.

When is an absolute majority required?

The Bill retains the existing framework for entrenchment by an absolute majority for the provisions specifying the absolute majority requirement, the jurisdiction of the Supreme Court and the judges and masters of that Court.

[18]. Amends section 74A of the Constitution Act 1975 to provide for the recognition of local government as a distinct and essential tier of government which is subject to Parliament’s ability to legislate in respect of each Council’s functions and powers. The new provision also recognises that each Council is responsible for governance within its boundaries, constituted by democratically elected councillors and is administrated by a supportive body to implement decisions and facilitate the Council’s performance of duties and functions.

[19]. Inserts a new Part VA which –

inserts new sections 94E and 94F which respectively establish the offices of the Ombudsman and the Electoral Commissioner as independent officers of the Parliament.

inserts new section 94G to ensure the continuance of an Electoral Boundaries Commission whose function is to continue to perform the function specified in the Electoral Boundaries Commission Act 1982.

inserts a new section 94H to ensure the continuance of an Act whose functions and objectives reflect the current Freedom of Information Act 1984.

Part 3 – Amendments to the Electoral Act 2002

[20]. Inserts a new Part 9A consisting of new sections 177A to 177K to provide for a process to hold referendums and contains related procedures.

[28]. Inserts new sections 69A and 69B setting out the requirements for the grouping of two or more candidates for a Council election and the requirements for a group of candidates who wish to obtain a group voting ticket describing the order of preferences for candidates.

[29]. Amends section 72(1) by providing that the death of an Assembly candidate at certain stages in the election process may lead to the election failing, but not the death of a Council candidate.

[36]. Inserts a new section 93A describing how votes are to be marked in a Council election. This new section provides that in Council elections, the elector may vote above the line by placing a number 1 in the square for the group, or below the line by placing numbers at least from 1-5 in the squares opposite each candidate’s name.

[38]. Inserts two new sections 112A and 112B to provide the circumstances in which Council ballot papers may be taken to be formal and the way in which Council ballot-papers may be deemed to be marked when an elector has voted for a group of candidates.

[40]. Inserts a new section 114A which provides for the procedure to ascertain the number of votes for Council candidates. The procedure is similar to the Senate quota preferential voting system. To achieve an outright quota for election a candidate for the Council needs to receive 16.67 per cent of the valid votes cast at the election. However a quota may be achieved by the transfer of votes from candidates achieving more than a quota (surplus votes) and also from candidates declared ‘excluded from the count’.

[42]. Inserts a new Schedule 1A to the Electoral Act 2002 which sets out the form of the ballot-paper for use in Legislative Council elections.

Part 4 – Consequential amendments

[44]. Amends the Electoral Boundaries Commission Act 1982 to provide for the first division of the State into 8 electoral Regions for the purposes of Legislative Council elections. The provisions nominate the Assembly districts in the Schedule that comprise the eight Legislative Council regions until the Electoral Commission otherwise may provide.

[45 to 51]. Make other consequential miscellaneous amendments to the Electoral Boundaries Commission Act 1982 and other Acts as a result of the division of the State into regions for Council elections.

In respect to the provisions concerning legislative entrenchment in the Constitution Act 1975 the Committee may make a further report to the Parliament in a future Alert Digest.

The Committee makes no further comment.

Constitution (Water Authorities) Bill

Introduced: 8 April 2003
Second Reading Speech: 10 April 2003
House: Legislative Assembly
Minister introducing Bill: Hon. S. Bracks MLA
Portfolio responsibility: Premier

Purpose

The Bill amends the Constitution Act 1975 (‘the Act’) so as to entrench the responsibility of public authorities for ensuring the delivery of water services and their accountability to responsible Ministers.

Content and Committee comment

[Clauses]

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

[4]. Inserts two new paragraphs (fa) and (h) in sub-section 18(2) the effect of which is to prohibit any Bill from being presented to the Governor for Royal Assent that divests water service responsibilities or registered infrastructure to a non public authority without the Bill receiving special (3/5th) majorities in both Houses.

[5]. Inserts a new Part VII into the Act comprising new sections 96 to 98.

New section 97 provides that a current authority with water service responsibilities must maintain that responsibility and remain accountable to the Minister for service delivery.

The Committee makes no further comment.

Dandenong Development Board Bill

Introduced: 8 April 2003
Second Reading Speech: 9 April 2003
House: Legislative Assembly
Minister introducing Bill: Hon. M. Delahunty MLA
Portfolio responsibility: Minister for Planning

Purpose

The Bill establishes the Dandenong Development Board (‘the Board’) to facilitate the development of the Dandenong region as a key centre for employment.

Content and Committee comment

[Clauses]

[2]. The Bill comes into operation on proclamation but not later than 1 January 2004.

[5]. Establishes the Board as a body corporate.

[6]. Sets out the functions of the Board including to facilitate development of Dandenong as a key centre for employment and services for south-east Melbourne.

[7]. Sets out the powers of the Board. [8]. Provides that the Board is subject to the direction and control of the Minister.

[9]. Provides that the Board may delegate any of its functions and powers, other than the power of delegation to any member of the Board, the executive officer or with the approval of the Minister any member of the Council staff of the Greater Dandenong City Council or employee of the Department of Infrastructure.

The Committee notes the delegation power and considers the delegation is sufficiently defined for the purposes of the Act.

[10 and 11]. Provides for the constitution of the Board and provides for the terms and conditions of office of members appointed to the Board. [17]. Requires a member to disclose any interest that might conflict with the member's duty in relation to a matter being or about to be considered by the Board. [18]. The Board may establish committees to assist it in its work and co-opt any person to such a committee.

[19]. Provides for the employment of an executive officer of the Board. [21 to 24]. Deal with corporate plans of the Board.

[26]. Provides for the Bill to expire on 30 June 2010.

The Committee makes no further comment.

Melbourne (Flinders Street Land) Bill

Introduced: 8 April 2003
Second Reading Speech: 9 April 2003
House: Legislative Assembly
Minister introducing Bill: Hon. M. Delahunty MLA
Portfolio responsibility: Minister for Planning

Purpose

The Bill divests certain land from the Melbourne City Council, revokes a current reservation and makes provision for other matters related to the land.

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill commence on proclamation but not late than 30 June 2005.

[3]. Divests land remaining vested in the Melbourne City Council under the Melbourne (Flinders-street) Land Act 1958. A portion of the land originally vested under that Act was divested by virtue of the Melbourne Lands (Yarra River North Bank) Act 1997 and under that Act was re-reserved and placed under the management of the Council as Committee of Management. Following divestment the remaining portion of the land will become unalienated land of the Crown. The clause also ensures that any regulations made over the land under the Crown Land (Reserves) Act 1978 are revoked.

[4]. Certain rights over the land vested in the Council were established under other Acts. This clause ensures that these rights are unaffected by the passage of this Act.

[5]. Following passage of the Bill the provisions of the Melbourne (Flinders-Street) Land Act 1958 are redundant and are therefore repealed.

The Committee makes no further comment.

Port Services (Port of Melbourne Reform) Bill

Introduced: 8 April 2003
Second Reading Speech: 9 April 2003
House: Legislative Assembly
Minister introducing Bill: Hon. P. Batchelor MLA
Portfolio responsibility: Minister for Transport

Purpose

The Bill amends the Port Services Act 1995 (‘the Act’) to constitute a new port corporation. The new body is to be known as the Port of Melbourne Corporation. The new corporation will succeed the Melbourne Port Corporation (‘MPC’) which will be abolished by the legislation.

Content and Committee comment

[Clauses]

[2]. There are various commencement provisions in the Bill but all provisions are to be in force by

2 February 2004.

[3 to 17]. Part 2 establishes the Port of Melbourne Corporation; and defines its objectives, functions and powers.

[16]. Amends Schedule 1 to the Port Services Act 1995. The effect is to increase the maximum number of directors who may be appointed to the board of the Port of Melbourne Corporation from 7 to 9 (minimum of 3 will remain unchanged) and to vest in the portfolio Minister, acting in consultation with the Treasurer, responsibility for recommending to the Governor in Council appointments to port corporations.

The Committee makes no further comment.

Regional Infrastructure Development Fund (Amendment) Bill

Introduced: 8 April 2003
Second Reading Speech: 9 April 2003
House: Legislative Assembly
Minister introducing Bill: Hon. J. Brumby MLA
Portfolio responsibility: Minister for State and Regional Development

Purpose

The Bill amends the Regional Infrastructure Development Fund Act 1999 (‘the Act’) to enable payments to be made from the Regional Infrastructure Development Fund to facilitate the extension of reticulated natural gas in regional Victoria and parts of municipal districts on the rural fringe of metropolitan Melbourne.

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill come into operation on a day to be proclaimed, but no later than 1 July 2003.

[4]. Amends section 5 of the Act dealing with the application of the Regional Infrastructure Development Fund.

[5]. Renumbers and renames the existing Schedule which lists the municipalities that are defined as Regional Victoria. It also adds the Benalla Rural City Council and the Mansfield Shire Council to the list of municipalities in that Schedule and deletes the Delatite Shire Council from the list.

This reflects the new municipal structure resulting from the restructuring of the Delatite Shire in 2002.

[6]. Inserts a new Schedule 2, listing the 9 urban fringe Councils that have rural areas that will be eligible for assistance from the Regional Infrastructure Development Fund for natural gas extension projects.

The Committee makes no further comment.

Safe Drinking Water Bill

Introduced: 8 April 2003
Second Reading Speech: 9 April 2003
House: Legislative Assembly
Minister introducing Bill: Hon. P. Batchelor MLA
Portfolio responsibility: Minister for Water

Purpose

The purpose of the Bill is to protect and improve the quality of drinking water supplies in Victoria.

The Bill confers regulatory powers and duties in relation to drinking water quality on the Secretary to the Department of Human Services.

The Bill also requires the reporting of incidents of known or suspected contamination of drinking water to the Secretary to the Department of Human Services and empowers the Secretary to take action to address any risk to public health.

Content and Committee comment

[Clauses]

[2]. The Bill comes into operation on 1 July 2004.

[7]. Places an obligation on a water supplier to prepare, implement and comply with a risk management plan in relation to its supply of drinking water and regulated water.

[8]. Places an obligation on a water storage manager to prepare, implement and comply with a risk management plan in relation to its supply of water to a water supplier.

[11]. Gives the Secretary power to set the frequency and timing of risk management plan audits, and to require a particular audit to be carried out by a specified date.

[12]. Provides that on completion of an audit an auditor must issue a certificate in a prescribed format indicating compliance or non-compliance with the risk management plan.

[17]. Obliges a water supplier to comply with any prescribed water quality standards when supplying drinking water and sets out who must be consulted during the process of prescribing drinking water quality standards.

[18]. Obliges a water supplier to notify the Secretary if the drinking water it is supplying does not comply or is unlikely to comply with a water quality standard.

[22]. Obliges specified individuals to report to the Secretary immediately on having reason to suspect or believe that drinking water may cause illness or may pose a risk to human health, or may be the subject of public complaint, and makes it an offence for failure to report.

[31]. Provides that the Secretary may issue an enforcement notice requiring a water supplier or water storage manager to comply with an undertaking or with specified sections of the Act and makes it an offence for a water supplier or water storage manager not to comply with an enforcement notice unless it has a reasonable excuse.

[39]. Provides that an occupier of a residence who gives consent to the entry and search of a premises or residence must be given a copy of the signed consent immediately.

[47]. Provides for the circumstances in which the privilege against self-incrimination can be relied upon in relation to information provided under this Division.

47. Self-incrimination not an excuse

(1) A person is not excused from complying with a direction made under this Division on the ground that complying with the direction may result in information being provided that might incriminate the person.

(2) Any information obtained from a natural person under this Division is not admissible in evidence against the person in criminal proceedings other than in proceedings in respect of the provision of false information.

(3) Despite sub-section (2), any information obtained from a person under this Division that is contained in any document or item –

(a) that the person is required to keep by any law; or

(b) that a water supplier, water storage manager or an officer, employee or agent of a water supplier or water storage manager is required to keep by any law; or

is admissible in evidence against the person in criminal proceedings.

(4) For the purposes of sub-section (3), a person provides direct assistance in the obtaining of a document or item if the person identifies, reveals the location of, or explains the contents of, the document or item.

[49]. Makes it an offence to obstruct an authorised officer in the exercise of his or her powers under the Act. A penalty of 60 penalty units applies to this offence.

[51]. Provides that each water supplier and water storage manager must pay a levy to assist in paying the costs of administering this Act. [53]. Provides for the mechanism by which the Minister is to determine the levy.

[59]. Repeals a general immunity provision in section 166 of the Water Act 1989 relating to liability for water treatment. However the immunity continues to remain for members of an Authority (as defined by the Act) prior to the commencement of the provision for the remainder of the current term of that member.

The current provision provides –

166(1) An Authority or any member or person acting on behalf of an Authority is not liable for any action taken in connection with the treatment of water (including disinfection or fluoridation) in accordance with this or any other Act.

The Committee makes no further comment.

Shop Trading Reform (Essential Goods Amendment) Act 2003

Introduced: 8 April 2003
Second Reading Speech: 9 April 2003
House: Legislative Assembly
Minister introducing Bill: Hon. P. Batchelor MLA
Portfolio responsibility: Minister for Small Business

Jurisdiction

The Committee has jurisdiction to report on this Act pursuant to section 4D(ba) of the Parliamentary Committees Act 1968.

Purpose

The purpose of this Act is to amend the Shop Trading Reform Act 1996 (‘the Act’) to provide for a further category of exempt shops; and to allow chemists' shops, petrol shops and certain other shops selling essential goods to trade irrespective of the number of persons employed in the shops.

Content and Committee comment

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

[3]. Inserts new sub-sections 4(1A), 4(1B) and 4(4) to exempt chemist and petrol shops that are prescribed by regulations under the Act from complying with the Act on certain public holidays classified as non-trading days.

The Committee makes no further comment.

Summary Offences (Offensive Behaviour) Bill

Introduced: 8 April 2003
Second Reading Speech: 9 April 2003
House: Legislative Assembly
Minister introducing Bill: Hon. R. Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

The Bill amends the Summary Offences Act 1966 (‘the Act’) to create a new offence relating to offensive behaviour and provide for infringement notices in respect to that offence.

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill commence on proclamation but not later than one year from the day the Act receives Royal Assent.

[3]. Inserts a new section 18 into the Act and provides that a person commits an offence if that person uses offensive words or gestures while in a motor vehicle; and within the view or hearing of another person in a public place; and in a “declared area”.

The Committee notes the following passage from the Explanatory Memorandum –

The offence specifically targets the disruptive and nuisance behaviour of “sex tourists”. For example, an offence may be committed where a person or persons cruise in a car around streets where street prostitution commonly occurs and yell abusive or offensive words out from the vehicle at sex workers, residents or passers-by on the street.

The offence will only apply in areas declared by the Minister and gazetted accordingly. In exercising the power to declare such an area, the Minister must be satisfied that the area is one where a high level of street prostitution occurs (for example, certain streets in the City of Port Phillip). A declaration will last for a period of twelve months.

The offence is one of strict liability, meaning that it does not require proof of intention or recklessness. Therefore, in the example provided above, the offence is committed once the offensive words are uttered from the vehicle. Defendants will not be able to escape liability by claiming that they did not intend their words to be offensive. This offence can be enforced by way of an infringement notice, issued by a member of the police force. Alternatively, the offence is punishable by a maximum fine of $500.

[4]. Inserts new sections 60AA to 60AH which set out the power to serve infringement notices and the procedural and enforcement requirements relating to infringement notices under the Act.

The Committee makes no further comment.

Transport (Miscellaneous Amendments) Bill

Introduced: 8 April 2003
Second Reading Speech: 9 April 2003
House: Legislative Assembly
Minister introducing Bill: Hon. P. Batchelor MLA
Portfolio responsibility: Minister for Transport

Purpose

The Bill amends the Transport Act 1983, the Rail Corporations Act 1996 and the Public Transport Competition Act 1995.

Content and Committee comment

[Clauses]

[2]. Some provisions in the Act commence on Royal Assent and others on proclamation but not later than by 1 July 2004.

Amendments to the Transport Act 1983

[4]. Provides for codes of practice, approved by the Minister, which give practical guidance on safety standards to accredited managers of rail infrastructure and accredited providers and operators of rolling stock. No civil or criminal liability attaches to a person by reason only for failure to comply with a code of practice but failure to comply with a code may be given in evidence in proceedings for an offence.

[6]. Amends section 156 to provide the licensing authority a discretion to declare an applicant for a commercial passenger vehicle driver's certificate to be ineligible for a specified period of time if the person has been convicted of certain criminal offences. The provision only applies where the offence occurs after the provision comes into force.

[7]. Amends section 157 to give the licensing authority a discretion to revoke or suspend a commercial passenger vehicle driver's certificate if the holder is convicted of certain criminal offences. The provision only applies to offences that occur after the provision comes into force. A person has a right of appeal to the Magistrates' Court if his or her certificate is revoked or suspended under this provision.

[8]. Inserts new sections 157A and 157B. New section 157A extends the meaning of the word “convict” in the new provisions inserted by clauses 6 and 7 and new section 157B requires a person who holds a commercial passenger vehicle driver's certificate to notify the licensing authority if he or she is charged or convicted of certain criminal offences.

[11]. Amends section 221 to provide for a public transport industry ombudsman to have access to certain confidential information if the Secretary certifies that the industry ombudsman's privacy protection policy is acceptable.

[12]. Inserts new section 221T to specifically provide that the Victorian Ombudsman may investigate the actions of a person authorised to exercise public transport enforcement powers.

Amendments to the Rail Corporations Act 1996

[14]. Inserts a number of new provisions to establish the V/Line Passenger Corporation as a rail corporation with the necessary functions and powers to operate country passenger rail services.

Amendments to the Public Transport Competition Act 1995

[19]. Inserts new section 24A to make provision for codes of practice, approved by the Minister, which give practical guidance on safety standards to accredited managers of bus operations. No civil or criminal liability attaches to a person by reason only for failure to comply with a code of practice but failure to comply with a code may be given in evidence in proceedings for an offence.

The Committee makes no further comment.

University Acts (Amendment) Bill

Introduced: 9 April 2003
Second Reading Speech: 10 April 2003
House: Legislative Council
Minister introducing Bill: Hon. T. Theophanous MLC
Portfolio responsibility: Minister for Education and Training

Purpose

The Bill amends various University Acts and the Victorian College of the Arts Act 1981.

Content and Committee comment

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

Amendments to the Deakin University Act 1974 (clauses 3 to 9)

[4]. Amends section 8 of the Act by providing that certain members of the University Council are eligible to receive payment for their Council membership. The clause also prohibits members of the Legislative Council, Legislative Assembly, Federal Parliament and High Court from receiving any payment or expenses for their Council membership. The clauses also provides that membership of the Council for members of the Legislative Council and Legislative Assembly is not holding an office of profit within the terms of the Constitution Act 1975. This provision is also replicated for the amendments made to the other University Acts covered by this Bill (refer to clauses 11, 18, 25, 32, 39, 46, 53 and 60).

[6]. Inserts a new section 34(6), (7) and (8) in the Act that will allow the University to deduct up to 5% commission from the annual income of its trust funds for administration costs.

Amendments to the La Trobe University Act 1964 (clauses 10 to 16)

[11]. Amends section 8 of the Act by providing that certain members of the University Council are eligible to receive payment for their Council membership. The amended section also prohibits members of the Legislative Council, Legislative Assembly, Federal Parliament and High Court from receiving any payment or expenses for their Council membership.

[13]. Inserts sections 35(6), (7) and (8) in the Act that will allow the University to deduct up to 5% commission from the annual income of its trust funds for administration costs. The 5% commission is to be received and accepted by the University as full payment for the costs of administration of the trust fund.

[14]. Inserts section 37C in the Act that will give the Auditor-General the power to audit corporations not incorporated under the Corporations Act where the University has a 50% shareholding in the corporation.

The section provides for the Auditor-General to have certain powers when conducting an audit and the assistance that must be provided to the Auditor-General when conducting the audit. It also provides that the Auditor-General does not have to conduct the audit in certain circumstances.

[15]. Inserts section 42(1A) into the Act to change the functions of the University Visitor. Under the amended section the University Visitor will only have ceremonial functions in relation to the affairs of the University.

[16]. Is a transitional provision that will enable any current inquiries by or authorised by the University Visitor to continue as if this clause had not been enacted.

Amendments to the Melbourne University Act 1958

[17]. Inserts section 4A into the Act to provide that the objects of the University include –

to provide and maintain a teaching and learning environment of excellent quality offering higher education at an international standard;

to undertake scholarship and research and to apply that scholarship and research to the advancement of knowledge to the benefit of Victorians, Australian and the international community;

to equip graduates to excel in their careers and to contribute to the community;

to serve the Victorian, Australian and the international community and the public interest by enriching cultural and community life, elevating public awareness of educational, scientific and artistic development and by promoting critical enquiry within the University and in the wider society.

[18]. Amends section 6 of the Act by providing that certain members of the University council are eligible to receive payment for their council membership. The amended section also prohibits members of the Legislative Council, Legislative Assembly, Federal Parliament and High Court from receiving any payment or expenses for their council membership.

Amendments to the Monash University Act 1958

[24 to 30]. Clause 27 allows the University to deduct 5% commission from the income of trust funds to cover the costs of administration of those funds. Clause 26 deals with the disclosure of pecuniary interests of members of the university council.

Amendments to the Royal Melbourne Institute of Technology Act 1992

[31 to 37]. Clause 34 allows the University to deduct 5% commission from the income of trust funds to cover the costs of administration of those funds. Clause 33 deals with the disclosure of pecuniary interests of members of the university council.

Amendments to the Swinburne University of Technology Act 1992

[38 to 44]. Clause 41 allows the University to deduct 5% commission from the income of trust funds to cover the costs of administration of those funds. Clause 40 deals with the disclosure of pecuniary interests of members of the university council.

Amendments to the University of Ballarat Act 1993

[45 to 51]. Clause 48 allows the University to deduct 5% commission from the income of trust funds to cover the costs of administration of those funds. Clause 47 deals with the disclosure of pecuniary interests of members of the university council.

Amendments to the Victoria University of Technology Act 1990

[52 to 58]. Clause 55 allows the University to deduct 5% commission from the income of trust funds to cover the costs of administration of those funds. Clause 54 deals with the disclosure of pecuniary interests of members of the university council.

Amendments to the Victoria College of the Arts Act 1981

[59 to 62]. Clause 62 allows the University to deduct 5% commission from the income of trust funds to cover the costs of administration of those funds. Clause 61 deals with the disclosure of pecuniary interests of members of the university council.

The Committee makes no further comment.

Water Legislation (Essential Services Commission and Other Amendments) Bill

Introduced: 9 April 2003
Second Reading Speech: 10 April 2003
House: Legislative Assembly
Minister introducing Bill: Hon. J. Thwaites MLA
Portfolio responsibility: Minister for Water

Purpose

The Bill amends the Water Industry Act 1994 (‘the Act’) to specify the role of the Essential Services Commission in relation to the water industry, to amend the Water Act 1989 to reinstate the capacity of the Central Gippsland Water Authority to accept certain types of waste material for treatment or disposal and to amend the Essential Services Commission Act 2001.

Content and Committee comment

[Clauses]

[2]. New section 12(1) is deemed to have come into operation on 4 April 2002, the remaining provisions, apart from the commencement and purpose sections which come into operation on assent, will come into operation on proclamation but not later than by 1 July 2005.

The Committee notes the retrospective commencement of section 12 is a statute law revision amendment to correct a typographical error and clarify the original intention of the sub-section from its commencement on 4 April 2002.

[3]. Inserts a new Part 1A into the Water Industry Act 1994 which sets out the framework for the regulation of the water industry under which the Essential Services Commission will operate as the economic regulator of the water industry.

[7]. Removes the current statutory immunity for officers and members of Regional Urban Water Authorities and Rural Water Authorities provided for under section 90 of the Water Act 1989. However, the removal of the statutory immunity will only apply to members of these authorities after the expiry of their current terms of office. This will then bring the position relating to officers and members of these authorities into line with existing positions for the Melbourne Water Corporation and the licensees.

[12]. Re-enacts sub-section 32F(4) of the Water Act 1989 to make its application clear. The current sub-section appears to allow an appeal to the Tribunal only under sub-paragraph (b) whereas the intention was to allow an appeal to the Tribunal under both paragraphs (a) and (b). The amendment corrects a typographical error with effect from the original commencement of the provision on 4 April 2002.

The Committee makes no further comment.

Water (Victorian Water Trust Advisory Council) Bill

Introduced: 8 April 2003
Second Reading Speech: 10 April 2003
House: Legislative Assembly
Minister introducing Bill: Hon. J. Thwaites MLA
Portfolio responsibility: Minister for Water

Purpose

The Bill amends the Water Act 1989 (‘the Act’) to establish the Victorian Water Trust Advisory Council (‘the Council’).

Content and Committee comment

[Clauses]

[2]. The Bill comes into operation on a day to be proclaimed, but not later than by 1 December 2003.

[3]. Inserts a new Part 14A into the Act comprising new sections 305AA to 305HH.

New sections 305BB and 305CC establishes the Council and sets out its functions. New section 305EE provides that the Council is to consist of between 3 and 5 members appointed by the Minister from persons with relevant expertise. New section 305FF sets out the terms and conditions of appointment of a member.

The Committee makes no further comment.

Committee Room
28 April 2003