Alert Digest No 3 of 2003
Tuesday, 20 May 2003
Albury-Wodonga Agreement (Repeal) Bill
Introduced: 29 April 2003
Second Reading Speech: 1 May 2003
House: Legislative Assembly
Minister introducing Bill: Hon. J. Brumby MLA
Portfolio responsibility: Minister for State and Regional Development
Purpose
The Bill repeals
the Albury-Wodonga Agreement Act 1973 and the
Wodonga Area Land Acquisition Act 1973 and dissolves
the Albury-Wodonga (Victoria) Corporation.
Further it provides
for the transfer of assets, contractual rights and
obligations, and liabilities of the Albury-Wodonga
(Victoria) Corporation to the Albury-Wodonga Development
Corporation established by the Albury-Wodonga
Development Act 1973 (Cth), subject to the consent of
the Minister administering the Albury-Wodonga
Development Act 1973 (Cth).
The Bill also
provides for the development of the Albury-Wodonga Area
Development Winding-up Agreement which will terminate the
Albury-Wodonga Area Development Agreement. The Bill
complements the Albury-Wodonga Development Amendment
Act 2000 (Cth) and the Albury-Wodonga Development
Repeal Act 2000 (NSW).
The Committee
previously reported on this Bill in May 2002 in Alert
Digest No. 5 of 2002.
Content and Committee comment
[Clauses]
[2].
Provides for the Bill to come into operation on
proclamation.
The
explanatory memorandum to the Bill notes that there is no
fixed day for commencement as the precise date of
commencement will depend on the time of signing of the
proposed Agreement and the commencement of the relevant
provisions of the Commonwealth and New South Wales Acts.
The
Committee makes no further comment.
Appropriation (2003/2004) Bill
Introduced: 6 May 2003
Second Reading Speech: 6 May 2003
House: Legislative Assembly
Minister introducing Bill: Hon. J. Brumby MLA
Portfolio responsibility: Treasurer
Purpose
This Bill provides
appropriation authority for payments from the
Consolidated Fund for the ordinary annual
services of the Government for the 2003/2004
financial year.
Content and
Committee comment
[Clauses]
[2]. The Act comes into
operation on the day it receives Royal Assent.
[3]. Provides that the
Treasurer may issue the stated amount out of the
Consolidated Fund in respect of the financial
year 2003/2004 for the purposes set out in
Schedule 1 to the Bill.
[4]. Provides that the
Consolidated Fund is appropriated to the extent
necessary for the purposes included in clause 3.
The Committee makes
no further comment.
Appropriation (Parliament
2003/2004) Bill
Introduced: 6 May
2003
Second Reading Speech: 6 May
2003
House: Legislative Assembly
Minister introducing Bill: Hon. J. Brumby
MLA
Portfolio responsibility: Treasurer
Purpose
This Bill provides
appropriation authority for payments from the
Consolidated Fund to the Parliament in respect
of the 2003/2004 financial year. The amounts
contained in Schedule 1 to the Bill provide for
the ongoing operations of the Parliament, new
output initiatives and new asset investment in
so far as these are funded by way of annual
appropriation.
Content and
Committee comment
[Clauses]
[2]. The Act comes into
operation on the day it receives Royal Assent.
[3]. Provides that the
Treasurer may issue the stated amount out of the
Consolidated Fund in respect of the financial
year 2003/2004 for the purposes set out in
Schedule 1 to the Bill.
[4]. Provides that the
Consolidated Fund is appropriated to the extent
necessary for the purposes included in clause 3.
The Committee makes
no further comment.
Attorney-General and
Solicitor-General (Amendment) Bill
Introduced: 6 May 2003
Second Reading Speech: 7 May 2003
House: Legislative Assembly
Minister introducing Bill: Hon. R. Hulls MLA
Portfolio responsibility: Attorney-General
Purpose
The amendments in the
Bill provide that senior members of the legal
profession be appointed as Senior Counsel rather
than Queen's Counsel. A process was also put in
place to allow those practitioners who had
previously been appointed as Queen's Counsel to
apply to have the appointment changed to Senior
Counsel.
The changes in protocol
did not require legislative amendment. However,
pursuant to section 4(1) of the Attorney-General
and Solicitor-General Act 1972, the Governor in
Council may only appoint one of Her Majesty's
Counsel (QC) to be Solicitor-General. This Bill
amends that Act to allow the appointment of
either Queen's Counsel or Senior Counsel to the
position of Solicitor-General.
Content and Committee
comment
[Clauses]
[2]. Provides that the
Bill commences on the day after Royal Assent.
[3]. Amends section 4(1)
of the Act to provide that a Senior Counsel may
be appointed to be Her Majesty's
Solicitor-General.
The Committee makes no
further comment.
Audit (Amendment) Bill
Introduced: 29 April 2003
Second Reading Speech: 1 May 2003
House: Legislative Assembly
Minister introducing Bill: Hon. J. Brumby MLA
Portfolio responsibility: Treasurer
Purpose
The Bill inserts a new
Part and other new sections into the Audit Act
1994 (the ‘Act’) providing additional powers to
the Auditor-General. The Bill also makes
amendments to that Act modifying or clarifying
the existing powers, duties and responsibilities
of the Auditor-General. The Bill also amends the
Financial Management Act 1994 with respect to
the tabling in Parliament of financial reports
and statements under Part 5 of that Act.
Content and Committee
comment
[Clauses]
[2]. Sections 1, 2, 5, 9
and 11 come into operation on the day after
Royal Assent and the remaining provisions
commence on 1 July 2003.
[5]. Amends section 7A
of the Act to ensure that the Auditor-General
considers any comments of the Public Accounts
and Estimates Committee on his or her draft
annual plan and indicates in the plan if changes
to it suggested by that Committee have not been
adopted.
The clause also corrects
a current anomaly in section 7A which requires
that the annual plan of the Auditor-General be
tabled after the Appropriation Bill is passed,
but prior to the end of the current financial
year. However, Parliament is often in recess at
that time. The anomaly is removed by introducing
an out of session tabling provision which
requires the Auditor-General to give the annual
plan to the clerk of each House of Parliament
and deems the plan to be published with
parliamentary authority when that occurs.
[11]. Inserts a new
section 7H in the Act. This section requires the
State to indemnify the Auditor-General, the
Deputy Auditor-General, a person acting in
either of those capacities and employees of the
Victorian Auditor-General's Office. The
indemnity only covers official functions
undertaken in good faith and does not apply to a
person already indemnified in some other manner,
such as under an insurance contract.
[18]. Inserts a new
section 16AB to establishes new procedures for
the tabling and release of reports by the
Auditor-General. The new section provides for
the tabling of reports in Parliament and
requires the Auditor-General to publish them on
the Internet.
[25]. Amends the
Financial Management Act 1994 to allow the
tabling of certain reports in either House if
only one House is sitting. The relevant reports
are the annual and quarterly financial reports
of the State, the mid-year report of the State
and budget updates.
The Committee makes no further comment.
Australian Crime
Commission (State Provisions) Bill
Introduced: 6 May 2003
Second Reading Speech: 7 May 2003
House: Legislative Assembly
Minister introducing Bill: Hon. A.
Haermeyer MLA
Portfolio responsibility: Minister for
Police and Emergency Services
Purpose
The Bill complements the
Commonwealth Australian Crime Commission Act
2002 (the ‘Commonwealth Act’) to provide for the
operation of the Australian Crime Commission
(‘ACC’) in Victoria.
The ACC is established
under the Commonwealth Act, which came into
operation on 1 January 2003 and replaced the
National Crime Authority (‘NCA’) with the ACC.
The ACC combines the investigative functions of
the former NCA with the criminal intelligence
functions of the former Australian Bureau of
Criminal Intelligence and the former Office of
Strategic Crime Assessments, which have also
been rolled into the ACC.
The Bill and comparable
legislation in other States and Territories will
complement the Commonwealth Act by enabling the
ACC to undertake like functions to those under
the Commonwealth Act in relation to relevant
criminal activity that relates to State or
Territory offences, irrespective of whether
those offences have a federal aspect.
The Bill repeals the
National Crime Authority (State Provisions) Act
1984.
Content and Committee
comment
[Clauses]
[2]. Other than the
provisions listed in sub-clause (2), the
provisions in the Bill commence on the day after
Royal Assent. The provisions in sub-clause (2)
will require a delayed commencement to align
with associated Commonwealth action. These
provisions will commence on a day or days to be
proclaimed.
[5]. Sets out the
functions of the ACC. [8]. Sets out the
functions of the Board.
[17 and 18]. Deal with
examinations conducted by Commission appointed
examiners.
[19]. Provides for an
examiner’s powers to summon witnesses and take
evidence and empower an examiner to require a
person appearing at an examination to produce a
document or thing and take evidence on oath or
affirmation.
[20]. Enables an
examiner, by written notice, to require a person
to attend before the examiner or a member of
staff of the ACC to produce specified documents
or things relevant to a special ACC
operation/investigation. The examiner must be
satisfied it is reasonable to do so and must
record his or her reasons for issuing the
notice.
[21]. Where the examiner
makes a notation on the summons or notice the
disclosure of information about of a summons or
notice is prohibited.
[22]. Creates offences
for disclosing certain information about a
summons or notice that contains a non-disclosure
notation under clause 21.
[23]. Provides that a
person must not fail to attend an examination in
answer to a summons.
Legal professional
privilege
[23(3)]. Enables a legal
practitioner to refuse to answer questions or
produce documents at an examination on the
ground of legal professional privilege, subject
to a requirement that the legal practitioner
provides the name and address of the person to
whom the privilege applies.
Abridgment of privilege
against self-incrimination – use immunity/
limitation
[23(4)] A person can
claim the privilege against self-incrimination
if before answering a question or before
producing a business document that sets out
details of earnings received by the person in
respect of his or her employment and does not
set out any other information; or before
producing a thing in answer to a summons, the
person claims that the answer, document or thing
might tend to incriminate the person or make the
person liable to a penalty. Clause 23(5) limits
the use that can be made of certain evidence if
one the situations in clause 23(4) exists. If
one of these situations exists, the answer,
document or thing cannot be used as evidence
against the person, except in confiscation
proceedings or proceedings in relation to the
falsity of evidence given by the person.
However, any evidence that is derived from the
answer, document or thing may be used against
the person.
Warrant to arrest
[24]. Empowers a Judge
of the Federal Court or the Supreme Court to
issue a warrant for the arrest of a person in
specified circumstances upon an application made
by evidence on oath based on reasonable belief
by an examiner. The person executing the warrant
is empowered to break and enter premises etc to
execute it and enables a warrant to be executed
even if the warrant is not in the possession of
the person executing it.
[25]. Makes it an
indictable offence to give false or misleading
evidence at an examination before an examiner.
Witness protection
[26]. Allows an examiner
to make arrangements to protect a person who is
appearing or has appeared at an examination
before an examiner or proposes to give, or has
given, information or other documents other than
at an examination.
[27]. Provides, in
relation to an examination before an examiner,
the same legal protection and immunity for
examiners, witnesses and legal practitioners
assisting the ACC or an examiner or representing
a witness as would apply in proceedings in the
High Court.
[28]. Enables an
examiner to apply to a Judge of the Federal
Court for an order that a person who has been
summonsed in connection with a special ACC
operation/investigation to appear before the
examiner, or who has appeared before the
examiner to surrender their passport to the
examiner.
Search warrants
[29]. Enables an
eligible person to apply to an issuing officer
(a Judge or Federal Magistrate) for a search
warrant and sets outs conditions for the issue
of a warrant. [30]. Allows an application to be
made by telephone where a warrant is required
urgently.
[33]. Provides that the
Act does not purport to impose any duty on a
Commonwealth body or person to perform a
function if the imposition would be beyond State
legislative power. This provision is intended to
ensure that the Act does not contravene any
constitutional doctrine that restricts the
duties that may be imposed on Commonwealth
bodies or persons.
[34]. Provides that
where admissible evidence is obtained during the
course of an ACC operation/investigation, the
CEO must assemble the evidence and give it to
the relevant Commonwealth or State
Attorney-General, law enforcement agency or
prosecuting authority. This obligation applies
under clause 34(1) in relation to evidence that
would be admissible in the prosecution of an
offence and under clause 34(2) in relation to
evidence that would be admissible in
confiscation proceedings.
Limitation as to legal
challenge
[36]. Where the Board
has determined that an ACC State intelligence
operation/investigation is a special
operation/investigation, then an act or thing
done by the ACC because of that determination
cannot be challenged in any court on the ground
that the determination was not lawfully made.
This provision does not
prevent challenges in relation to the activities
of the ACC once a determination is in place.
Also, this limitation does not apply to
proceedings initiated by the Attorney-General of
the Commonwealth or a State.
Double jeopardy
[39]. A person is not
liable to be punished for an offence under the
Act if he or she has already been punished for
the offence under the Commonwealth Act.
[45]. Allows the CEO to
delegate in writing any of his or her powers
under the ACC Act to a Senior Executive Service
level employee of the ACC.
[48]. Prevents an annual
report identifying persons as having being
suspected of, or as having committing offences
(unless the persons have been convicted of those
offences) or identifying a person where this
would prejudice a person's safety or reputation
or the fair trial of a person who has been or
may be charged with an offence.
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)
[49]. Declares that it
is the intention of clauses 36, 56 and 64 to
alter or vary section 85 of the Constitution Act
1975.
Clause 36 is intended to
prevent, in specified circumstances, challenges
that can be made in relation to the activities
of the ACC, including in the Supreme Court,
because of an administrative problem with a
Board determination.
The transitional
provision in clause 56 is intended to ensure
that State NCA references that were made before
1 January 2003 continue to be protected from
challenges under section 8 of the National Crime
Authority (State Provisions) Act 1984 after the
repeal of that Act by the Bill. Similarly to
clause 36 of the Bill, section 8 of the National
Crime Authority (State Provisions) Act 1984 protects from challenge, including in the
Supreme Court, certain activities of the NCA
because of an administrative problem with a
State reference.
The transitional
provision in clause 64 is intended to ensure
that the Co-operatives Schemes (Administrative
Actions) Act 2001 continues to apply to validate
certain invalid administrative actions
undertaken by Commonwealth officers and
authorities pursuant to the National Crime
Authority (State Provisions) Act 1984 up to time
when that Act is repealed by the enactment and
commencement of clause 51 of the Bill. This
provision will prevent actions being brought
against the State, including in the Supreme
Court, in relation to such administrative
actions.
The Committee notes the
section 85 statement in the Minister’s Second
Reading Speech –
Certain administrative
actions of the NCA are the subject of an
existing validation under the Co-operative
Schemes (Administrative Actions) Act 2001.
This validation prevents
actions being brought against the state in the
Supreme Court in relation to such administrative
actions. Clause 64 of the bill is a transitional
provision that will continue this validation
once the state NCA legislation is repealed by
the bill. The reason this clause intends to
alter or vary section 85 of the Constitution Act
1975 is to protect the state from potential
future liabilities arising from relevant past
administrative actions of the NCA.
In addition, the state
NCA legislation currently protects from
challenge, including challenge in the Supreme
Court, certain activities of the NCA on the
ground of any administrative defect that exists
in relation to a state reference to conduct an
investigation. Clause 56 of the bill is a
transitional provision that will continue the
existing protection afforded to state NCA
references once the state NCA legislation is
repealed by the bill.
The reason this clause
proposes to alter or vary section 85 of the
Constitution Act 1975 is to prevent future
collateral challenges to NCA activities in the
same way that such challenges are currently
precluded.
Lastly, clause 36 of the
Bill proposes to alter or vary section 85 of the
Constitution Act 1975 to the extent necessary to
prevent actions being brought in the Supreme
Court to challenge certain activities of the ACC
on the basis of a procedural defect with a board
determination. The reason for preventing such
actions is to ensure that the ACC's activities
are not subject to collateral challenge on the
basis of procedural defects in the making of a
board determination. This is intended to enhance
the ACC's effectiveness, without limiting a
person's other rights to bring a challenge in
relation to the activities of the ACC once a
board determination is in place.
[50]. Provides for a
general regulation making power to give effect
to the purposes of the Bill.
[51]. Repeals the
National Crime Authority (State Provisions) Act
1984, which is the existing State legislation
for the NCA.
[56]. Provides that
where the State referred a matter to the NCA for
investigation before 1 January 2003, the
reference continues to be protected from
challenges under section 8 of the National Crime
Authority (State Provisions) Act 1984 after the
repeal of that Act by the Bill. Section 8
protects a reference from challenge on the
grounds that any necessary approval had not been
obtained or was not lawfully given.
[64]. Ensures that the
Co-operatives Schemes (Administrative Actions)
Act 2001 continues to apply to administrative
actions taken, or purportedly taken, under the
National Crime Authority (State Provisions) Act
1984 as if that Act had not been repealed and
were still a relevant State Act for the purposes
of the Co-operatives Schemes (Administrative
Actions) Act 2001.
The Co-operatives
Schemes (Administrative Actions) Act 2001
validates certain invalid administrative actions
undertaken by Commonwealth officers and
authorities, including actions undertaken
pursuant to the National Crime Authority (State
Provisions) Act 1984, by giving them the effect
they would have had if they had been taken by
State authorities or officers. This transitional
provision ensures that such administrative
actions are validated up to time when the
National Crime Authority (State Provisions) Act
1984 is repealed by the enactment and
commencement of clause 51 of the Bill.
The Schedule provides
for consequential amendments to a number of
other Acts.
The Committee makes no further comment.
Confiscation (Amendment) Bill
Introduced: 29 April 2003
Second Reading Speech: 1 May 2003
House: Legislative Assembly
Minister introducing Bill: Hon. R. Hulls MLA
Portfolio responsibility: Attorney-General
Purpose
The Bill makes various
amendments to the Confiscation Act 1997 (the ‘Act’). The
major provisions in the Bill are –
-
Changes to certain thresholds
relevant to the automatic forfeiture provisions (new
thresholds of 30 grams of heroin instead of 500 grams
and $50,000 rather than $100,000 for certain
dishonesty offences).
-
Allowing tainted property
substitution declarations in situations where an
offender uses property belonging to another to commit
a crime. In these circumstances similar property
belonging to the offender may be declared or deemed
tainted property and thus may be subject to
forfeiture. A restraining order may be issued to
prevent premature disposal of such property.
-
Expanding the definition of
‘financial institution’ relevant to the ‘information
notices’ financial transactions monitoring provisions
to include the casino, TAB and other gambling
institutions. A section 85 of the Constitution Act
1975 immunity against civil proceedings is provided to
financial institutions complying with an information
notice.
-
Making new provision for a
court to grant a ‘freezing order’ on application by
the police restraining funds in an account. Such an
order may be granted over the telephone, facsimile
transmission or other method approved by the court and
last for up to 3 days. It is an offence for a
financial institution to allow that account to be
accessed.
-
To protect innocent third
parties the Bill will require persons served with a
restraining order to provide police with the details
of any interest (if any) held by third persons in the
restrained property.
-
Allow relevant confiscation
law enforcement agencies to share information for the
purposes of confiscation proceedings.
-
Introduces new provisions and
amends other provisions in relation to the management
of seized and restrained property pending
determination of the charges.
-
Strengthens the provisions in
relation to seizure of property ‘on premises’ to
include seizure in public places such as a street.
Further amendments will allow property seized pursuant
to another Act to be deemed also to have been seized
under the Confiscation Act.
Content and Committee
comment
[Clauses]
[2]. The provisions in the Bill
come into operation on proclamation but not later than 1
December 2003.
[4] Amends section 3 of the Act
(definitions) including an expanded definition of
‘financial institution’ to include certain gaming
institutions. The definition of ‘automatic forfeiture
offence’ is amended to recognize the new thresholds
introduced by the Bill. The definition of "premises" is
amended to include property found in a public place.
[8]. Inserts new sections 19A to
19E into the Act concerning restraining orders.
New section 19A provides that
where a court makes a restraining order, a member of the
police force must give a notice to every person who the
member believes has an interest in the restrained
property. New section 19B provides that every person who
is given a notice under new section 19A must make a
written declaration of property interests in the
restrained property. The declaration must state whether
the person has an interest in the restrained property;
and believes that any other person has an interest in
the restrained property. New section 19C provides that
it is an offence to fail without reasonable excuse to
make a declaration of property interests within 14 days;
or make a statement in a declaration that is false or
misleading in material particular.
Freezing orders
[10]. Inserts a new Part 2A in
the Act to provide for freezing orders. A freezing order
is an order made by the Magistrates' Court directing a
financial institution not to allow withdrawals to be
made from a specified account held with that
institution. An application for a freezing order must be
supported by an affidavit setting out the grounds on
which the freezing order is sought. However a member of
the police force may apply for a freezing order before
an affidavit is prepared or sworn, where the applicant
believes that it is impracticable to prepare and swear
an affidavit before the application is made. An
application may be made by telephone, fax or other form
of communication. An order lasts for 72 hours after the
freezing order takes effect but may be extended in
special circumstances.
New section 31K provides that a
financial institution that has been given notice of a
freezing order must not fail, without reasonable excuse,
to comply with the order.
New section 31L sets out secrecy
provisions in relation to freezing orders. While a
freezing order is in force, it is an offence for a
financial institution to disclose the existence or
operation of the freezing order to any person other than
certain specified persons.
[12]. Inserts new sections 34A
to 34C to provide for tainted property substitution
declaration to be made by a court having the effect of
substituting property in which the defendant has an
interest which is not tainted property, for tainted
property which is not otherwise available for forfeiture
because the defendant has no interest in that property
(e.g. a hired car used in the commission of a crime).
[13]. Inserts new sections 35A,
35B and 35C, which enable the court which convicts a
defendant of an offence to make a declaration that the
offence was an “automatic forfeiture offence”.
[19]. Inserts a new section 79A
to provide for the issuing of a “seizure warrant” to
seize tainted or forfeited property from a public place
(e.g. a car parked in a street).
[23]. Inserts a new section 88A
to provide that a member of the police force who applies
for a seizure warrant must give notice of the execution
of that warrant to every person known to have an
interest in the seized property.
[25]. Inserts new sections 95A
to 95E to enable the Magistrates' Court to make a
declaration authorising property seized under an
evidentiary search warrant under section 465 of the
Crimes Act 1958 or section 81 of the Drugs,
Poisons and Controlled Substances Act 1981 to be
held under the Act.
[27]. Inserts new sections 97A
to 97W dealing with property management warrants.
A search and inspection warrant
authorises the person named in the warrant to do various
things, including entering the premises specified in the
warrant and inspecting, photographing (or otherwise
recording) and making an inventory of the property
specified in the warrant.
A search and inspection warrant
does not authorise the applicant for the warrant to use
force to enter the premises. However, a search and
inspection warrant may authorise the sheriff or a person
directed by the sheriff to break and enter the premises
specified in the warrant (new section 97B(3)).
The rules applying to search
warrants under the Magistrates' Court Act 1989 apply to
search and inspection warrants.
A search and seizure warrant
authorises the person named in the warrant to enter the
premises specified in the warrant, search for and seize
the forfeited property, and break open any receptacle
for the purposes of the search and seizure (if it is
reasonably necessary to do so).
A search and seizure warrant
does not authorise the applicant for the warrant to use
force to enter the premises. However, a search and
seizure warrant may authorise the sheriff or a person
directed by the sheriff to break and enter the premises
specified in the warrant (new section 97N(3)).
New section 97S provides that
the rules applying to search warrants under the
Magistrates' Court Act 1989 apply to search and
seizure warrants.
[29]. Inserts a new sections
118A to 118M to provide for the issuing of information
notices to a financial institution by a law enforcement
agency, requiring the financial institution to provide
information about an account or accounts held with that
institution.
New section 118J provides that a
financial institution that has been given an information
notice must not without reasonable excuse, fail to
comply with the information notice; or knowingly give
information that is false or misleading in a material
particular.
New section 118K sets out
secrecy provisions in relation to information notices
and provides that unless the existence of an information
notice has been made known in open court, it is an
offence for a financial institution to disclose the
existence of the information notice to any person other
than certain specified persons.
New section 118L provides an
immunity from civil liability for financial institutions
(and their officers, employees and agents) which may
arise as a result of action taken or information given
by an institution or person in order to comply with an
information notice. This new section is intended to
limit the jurisdiction of the Supreme Court (see section
85 of the Constitution Act 1975 statement at [36]
below).
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)
[35]. Inserts a new sub-section
(2) in section 145 to provide that it is the intention
of new section 118L (as inserted by [29]) to alter or
vary section 85 of the Constitution Act 1975 by
limiting the jurisdiction of the Supreme Court.
Section 118L provides that no
civil proceeding lies against a financial institution or
an officer, employee or agent of the institution acting
in the course of that person's duties, in relation to
any action taken or information given by the institution
or person in compliance with an information notice.
The Committee notes the section
85 statement in the Minister’s Second Reading Speech –
Section 118L provides that no
civil proceeding lies against a financial institution
or an officer, employee or agent of the institution
acting in the course of that person's duties, in
relation to any action taken or information given by
the institution or person in compliance with an
information notice. It is the intention of section
118L to limit the jurisdiction of the Supreme Court,
so that civil actions cannot be brought against
financial institutions that comply with information
notices issued by Victoria Police or the Asset
Confiscation Office in the Department of Justice (as a
prescribed person).
The reason for the limitation
of the Supreme Court's jurisdiction is that, without
such an immunity, by assisting the state in
investigating and enforcing matters under the
Confiscation Act, financial institutions and their
officers could be exposed to significant civil
liability for breach of obligations to account
holders, such as the obligation to maintain
confidentiality.
[36 and
37]. Inserts new offences in Schedules 1 and 2 of the
Act which are forfeiture offences.
[38]. Substitutes new items of
Schedule 2 which lists automatic forfeiture offences.
Each of the offences will be an
automatic forfeiture offence only if the convicting
court is satisfied that the value of the property stolen
is $50,000 or more or where more than one offence of
theft is charged and the offences are founded on the
same facts or form part of a series of offences of the
same or similar character, the offences will be treated
as an automatic forfeiture offence if the value of the
property stolen is $75,000 or more.
[42]. Provides for transitional
arrangements for the amendments made by the Bill.
Amendments to other Acts
[43]. Amends section 465 of the
Crimes Act 1958. New section 465(1B) enables a
magistrate who issues a search warrant under the
Crimes Act 1958 to make a direction at the time of
issuing the warrant that any property to which the
warrant relates, which the magistrate is satisfied is
also “tainted property” within the meaning of the Act,
is to be held as if it had been seized under section 79
of the Act.
[45]. Inserts a new definition
of “automatic forfeiture quantity” in section 70(1) of
the Drugs, Poisons and Controlled Substances Act 1981.
[49]. Substitutes a new Part 3
of Schedule Eleven to the Drugs, Poisons and
Controlled Substances Act 1981, which includes a new
column 2B, specifying the “automatic forfeiture
quantity” applicable to each drug of dependence in Part
3 of that Schedule.
[50]. Amends section 5(2A) of
the Sentencing Act 1991 to allow a court, in
sentencing an offender, to have regard to the fact that
certain property (including property that was used in
the commission of the offence) has been automatically
forfeited. The sentencing court may only have such
regard if it is satisfied that the property was acquired
lawfully.
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 Act amended the Constitution
Act 1975. The Committee reported on the Act in Alert
Digest No. 2 of 2003 tabled in the Parliament on 29
April 2003.
Amongst the amendments made by
the Act were a number of entrenchment provisions that
require certain proposed changes to the Constitution Act
1975 to be put to a referendum, others requiring a
special (two thirds) majorities of the Members of the
Houses to be passed and in some cases requiring an
absolute majority of the Members of the respective
Houses of Parliament to be passed.
Content and Committee comment
Entrenchment provisions
The Committee notes the relevant
decisions of the High Court in Attorney-General (NSW) v. Trethowan (1931) 44 CLR 395 and
South-Eastern Drainage
Board (SA) v Savings Bank of South Australia (1939) 62 CLR 603 concerning legislative entrenchment.
The Committee makes no
further comment.
Corrections (Amendment) Bill
Introduced: 29 April 2003
Second Reading Speech: 1 May 2003
House: Legislative Assembly
Minister introducing Bill: Hon. A.
Haermeyer MLA
Portfolio responsibility: Minister for
Corrections
Purpose
The purpose of the Bill is to amend
the Corrections Act 1986 (the ‘Act’) to clarify
Governors’ powers to direct prisoners to submit to alcohol
use tests and to make changes with respect to the granting
of interstate leave of absence for prisoners.
Content and Committee comment
[Clauses]
[2]. The provisions in the Bill
commence on the day after Royal Assent.
[3]. Expands the immunity for police
transport providers in section 9CB(3) of the Act for the use
of reasonable force to compel a detained person to obey a
lawful direction to include immunity for damage, as well as
injury (also refer to section 85 Constitution Act 1975
provision at [11]).
Prisoners may be tested for drugs
and alcohol
[4(1) and (2)]. Substitutes a new
section 29A(1) and also revises the section heading to make
it clear that a Governor of a prison may require a prisoner
to submit to tests to assess whether the prisoner has used
or consumed alcohol as well as drugs of dependence.
[4(3)]. Inserts a new section 29A(3)
to make it clear that all tests on urine samples for alcohol
use and all directions that a prisoner submit to tests for
the use of alcohol before the new section 29A(1) of the
Corrections Act 1986 comes into operation are valid.
Test for
grant of compassionate custodial leave for aboriginal
prisoners
[6]. Amends section 82(c) of the Act
to state that a compassionate purpose for granting leave
includes enabling an Aboriginal prisoner to be present at an
occasion of special significance to the prisoner's immediate
or extended family.
Apprehension without warrant –
prisoner on leave
[9]. Inserts a new subsection (1A)
in section 84D to ensure that where prisoners from other
States enter Victoria unescorted, they may be apprehended
without warrant if they fail to return to the participating
State in accordance with their permit.
Liability for loss caused by
prisoner on leave
[10]. Inserts a new provision in
which the State accepts liability for any loss or damage
sustained by any person in a participating State that is
caused by an act or omission of a prisoner or an escort
officer while in the participating state for the purpose of
a permit. This does not affect any right of action that
Victoria has against the prisoner or escort.
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)
[11]. Declares that section 9CB(3)
of the Corrections Act 1986 as amended alters or
varies section 85 of the Constitution Act 1975 in
that it limits the jurisdiction of the Supreme Court.
The Committee notes the section 85
statement in the Minister’s Second reading Speech –
Clause 3 amends section 9CB(3) of
the Corrections Act 1986 by adding 'or damage' after
'injury' in that section.
As I pointed out earlier, the
immunity afforded to an escort officer who uses reasonable
force to compel a prisoner to obey a lawful direction is
different to the immunity given to a police prisoner
transport provider who uses similar reasonable force in
the same circumstances. Police prisoner transport
providers currently only have immunity for injury caused
when using reasonable force to compel a detained person to
obey a lawful direction.
The proposed amendment to section
9CB(3) is intended to remedy this anomaly by ensuring that
all transport powers of those undertaking escort functions
will be consistent under the Act. To ensure that this
amendment will have the effect intended it is necessary to
vary the jurisdiction of the Supreme Court to extend the
existing limitation on that jurisdiction provided in
respect of section 9CB.
The reasons for this limitation on
the jurisdiction of the Supreme Court are as follows.
The provision of prisoner
transport services under agreements with the Chief
Commissioner of Police will at times require authorised
persons under those agreements to use reasonable force to
ensure that detained persons comply with the authorised
person's lawful directions.
Persons undertaking transport
duties need to be confident that in acting in accordance
with the section they, like escort officers, will be
protected from proceedings against them when acting
properly. This amendment will ensure that the protection
and safety of the community remains a paramount
consideration.
The
Committee makes no further comment.
Corrections and Sentencing Acts (Home
Detention) Bill
Introduced: 6 May 2003
Second Reading Speech: 7 May 2003
House: Legislative Assembly
Minister introducing Bill: Hon. A.
Haermeyer MLA
Portfolio responsibility: Minister for
Corrections
Purpose
The Bill amends the Sentencing Act
1991 (the ‘Act’) to –
-
empower a court that imposes a
sentence of imprisonment to order that the sentenced be
served by way of a home detention order (HDO).
-
define the circumstances in which
a home detention order can be made.
-
define the classes of offenders in
respect of whom a home detention order can be made.
-
provide for the assessment of
offenders to determine their suitability for home detention.
-
provide for the imposition of
conditions of an HDO and to specify periods of confinement
and the circumstances in which an offender may be absent
from home under a home detention order.
-
regulate the conduct of the
offender under a home detention order and provide for the
monitoring of that conduct.
The Bill also amends the Corrections
Act 1986 to –
-
empower the Adult Parole Board to
make home detention orders in respect of prisoners nearing
the end of a term of imprisonment.
-
define the class of prisoners who
are eligible to serve part of a sentence of imprisonment by
way of home detention.
-
provide for the assessment of
prisoners to determine their suitability for home detention.
-
provide for the imposition of
conditions of a HDO and specify periods of confinement and
the circumstances in which the offender may be absent from
home under a home detention order.
-
regulate the conduct of the
offender under a home detention order and provide for the
monitoring of that conduct.
Content and Committee comment
[Clauses]
[2]. Sections 1 and 2 come into
operation on Royal Assent. Sections 9 and 10 (repeal of the
HDO provisions) come into operation on the day that is the
third anniversary of the day on which section 5 (the HDO
provisions in the Sentencing Act 1991) comes into operation.
Sections 20 and 21 (repeal of the HDO provisions) come into
operation on the day that is the third anniversary of the
day on which section 14 (the HDO provisions in the
Corrections Act 1986) comes into operation.
Note
The Bill provides for a 3 year pilot
period for the HDO sentencing option to be inserted in the
Sentencing Act 1991 and the Corrections Act 1986. On the
third anniversary of the commencement of these provisions
sections 9 and 10 will come into operation repealing the HDO
option in the Sentencing Act 1991. Sections 20 and 21 make
the identical consequential repeal of the scheme in the
Corrections Act 1986.
Amendments to the Sentencing Act
1991
[3]. Defines ‘home detention order’
(HDO) as an order made under section 18ZT that a sentence of
imprisonment be served by way of home detention.
[4]. Time held in custody pending
assessment and determination of suitability for a HDO is to
be reckoned as time served under the sentence.
[5]. Inserts a new sections 18ZT to
18ZZR (HDO).
18ZT. A court that has sentenced a
person to imprisonment for 12 months or less may make a HDO.
18ZU. A HDO is not to be made if
other residents in the household object. A court must be
satisfied that all persons of or over the age of 18 years
who will be residing with the offender have been consulted
by the Secretary to the Department of Justice or a person
authorised by that Secretary.
A court must not make a HDO unless
satisfied that the wishes and feelings of any person under
the age of 18 years who will be residing with the offender
under a home detention order have been ascertained; and due
consideration has been given to them, having regard to the
age and understanding of the person.
The court may dispense with the
consent of a person over the age of 18 if satisfied that the
person lacks the capacity to give that consent.
If the court dispenses with the
consent of a person, the court must not make the order
unless the court is satisfied that, the wishes and feelings
of the person have been ascertained; and due consideration
has been given to them, having regard to the understanding
of the person.
18ZV. A HDO cannot be made where a
person has been found guilty at any time of any of the
following –
-
Offences to which clauses 1, 2, 3
or 4 of Schedule 1 of the Sentencing Act 1991 applies. These
are – (a) sexual offences, (b) violent offences, (c) serious
violent offences, (d) drug offences.
-
an offence, which in the opinion
of the court, was committed in circumstances which involved
behaviour of a sexual nature; or
-
an offence that involves the use
of a firearm or a prohibited weapon (within the meaning of
the Control of Weapons Act 1990); or
-
a breach of an intervention order
under section 4 of the Crimes (Family Violence) Act 1987 or
an order of a corresponding nature made in another State or
a Territory; or
-
a stalking offence under section
21A of the Crimes Act 1958.
18ZW. Sets out the test for
suitability of an offender to be considered for an HDO
including the consent of the offender (18ZW(1)(d)).
18ZZ. Before a HDO may be made the
offender must give an undertaking to comply with certain
obligations and to agree and submit to any monitoring or
testing required or directed under the HDO to ensure
compliance with those obligations.
18ZZA and 18ZZB. Sets out the
obligations and core conditions governing a HDO. The
offender must –
-
remain at the approved residence
at all times other than when the absence is authorised; or
when it is unsafe to remain there due to immediate danger
(such as fire or medical emergency); or when a person
residing at the approved residence has withdrawn his or her
consent under section 18ZZE;
-
submit to searches of places or
things under the immediate control of the offender, as
required by the Secretary to the Department of Justice;
-
submit to electronic monitoring
(including voice recording) of compliance with the home
detention order and comply with all instructions given by
the Secretary to the Department of Justice in relation to
the operation of monitoring systems and not tamper with,
damage or disable monitoring equipment;
-
not consume alcohol or use
prohibited drugs, obtain drugs unlawfully or abuse drugs of
any kind and submit to breath testing, urinalysis or other
test procedures approved by the Secretary for detecting
alcohol or drug use;
-
accept any reasonable direction of
the Secretary to the Department of Justice in relation to
the maintenance of or obtaining of employment;
-
inform any employer of the home
detention order and, if directed by the Secretary to the
Department of Justice, of the nature of the offence that
occasioned it;
-
authorise and make reasonable
attempts to facilitate contact between any employer of the
offender and the Secretary to the Department of Justice;
-
engage in personal development
activities or in counselling or treatment programs, as
directed; and undertake unpaid community work (not exceeding
20 hours per week) when not otherwise employed;
-
not possess or have in his or her
control any firearm; or any prohibited weapon or any
controlled weapon or dangerous article.
18ZZC. Allows a court to attach
special conditions to a HDO as may be appropriate.
18ZZD. A HDO does not affect an
offender’s eligibility for benefits such as a pension.
18ZZE. A person residing with an
offender who has given a consent under section 18ZU may at
any time by notice in writing withdraw that consent.
18ZZF. If there is no longer any
approved residence at which an offender can reside under a
HDO, the Secretary to the Department of Justice may apply to
the Adult Parole Board for the revocation of the HDO.
18ZZG. Deals with sanctions for
minor breaches of a HDO.
18ZZI. Deals with serious breaches
of a HDO and defines ‘serious breach’ to include the
commission of another offence or an offence compromising the
safety and security of the community or a person residing
with the offender.
18ZZL. Deals with the effect of a
revocation of a HDO. The offender must be taken to prison to
serve a period of imprisonment that is equal to the period
from the effective date of revocation of the home detention
order to the date of expiry of the term of imprisonment
imposed by the court.
18ZZM. Provides for a re-hearing of
revocation of a HDO if it was made in absence of the
offender.
The Adult Parole Board (the ‘Board’)
may determine not to make a document or part of a document
considered by the Board available to the offender if a
judicial member of the Board considers that to make the
document or part available could endanger any person or
inappropriately reveal the identity of any person.
[6]. Inserts a new Division 2B in
Part 6 of the Act dealing with Home Detention Assessment
Reports. The new Division 2B consists of new sections 99F to
99J.
Regulation Powers
[7]. Provides a regulation making
power for any matter relating to home detentions. A new
section 116(1)(a) is inserted into the Act –
(a) any matter relating to home
detention;
[8]. Inserts a new section 127A
transitional provision to provide that the HDO sentencing
option may apply to sentencing from the commencement of the
amendments even where the offence was committed prior to the
commencement date. However a sentence imposed on appeal is
taken to be a sentence imposed at the time the original
sentence was imposed.
[9]. Repeals the HDO sentencing
provisions on their third anniversary.
[10]. Inserts a new section 127B
transitional provision providing that a HDO in force at the
time of repeal is deemed to continue notwithstanding the
repeal.
Amendments to the Corrections Act
1986 (the ‘Act’)
Victim may be given information
concerning release of prisoner on home detention order
[13]. Amends section 30A to provide
for a primary victim to be notified of a prisoner’s release
on home detention.
[14]. Inserts new sections 59, 60
and 60A to 60X. Essentially the new sections are similar in
nature to the provisions inserted into the Sentencing Act
1991 by [5] above.
Home detention where prisoner may be
paroled or released within 6 months
59. Provides that at the request of
a prisoner, the Board may make a home detention order in
respect of the prisoner if it satisfied that on the date the
order takes effect the prisoner will have served at least
two-thirds of the minimum term of imprisonment; and the
prisoner will be eligible for parole or for release in 6
months or less; and the prisoner is being held under minimum
security conditions.
60. An order must not be made if
other residents object (see [5] above).
60A. A HDO is not available for
certain offences. These are identical to those referred to
in [5] above.
60B. The Board may only make a HDO
if the Board is satisfied, amongst other things, that it is
appropriate in all of the circumstances that a home
detention order be made in respect of the prisoner, the
prisoner has consented to the order and has made the written
undertakings required.
60D. The Board must request the
Secretary to prepare a home detention assessment report in
respect of a prisoner.
60F. Provides an unauthorised
disclosure of information penalty.
60G. Provides that the Board in
determining whether to make vary or revoke a home detention
order, may direct the Secretary to arrange for the
examination of the prisoner by a registered medical
practitioner, a psychiatrist or a psychologist; and require
the registered medical practitioner, psychiatrist or
psychologist to give a report to the Board.
60H. Provides that before a home
detention order may be made in respect of a prisoner, the
prisoner must give an undertaking.
60I, 60J and 60K. Set out the
obligations of an offender, the core conditions and the
special conditions of a HDO (see [5] above).
60L. A person residing with an
offender who has given a consent under section 60 may at any
time by notice in writing withdraw that consent.
60M. If there is no longer any
approved residence at which an offender can reside under a
home detention order, the Secretary may apply to the Board
for the revocation of the home detention order. The
Secretary must notify the offender of an application under
this section.
An offender who is serving a
sentence of imprisonment by way of home detention may apply
to the Board for the revocation of the home detention order.
The Secretary and the offender
concerned may make written submissions to the Board in
respect of an application under this section and the Board
may, in its discretion, give an offender an opportunity to
appear before the Board to be heard in relation to an
application.
60N, 60O and 60P. Deal with breaches
of a HDO, sanctions for minor breaches and serious breaches
of a HDO in terms identical to those in [5] above.
60S. Deals with the effect of the
revocation of a HDO. The offender must serve the remaining
sentence of imprisonment that is equal to the period from
the effective date of revocation of the home detention order
to the date of expiry of the term of imprisonment imposed by
the court.
[14] Inserts into section 69 of the
Act additional functions of the Adult Parole Board
consequent to the new provisions relating to HDO.
[19]. Provides a regulation making
power for any matter relating to home detention by inserting
the words ‘home detention orders’ in section 112(1)(n).
[20]. Provides for the repeal of the
amendments made to the Act by this Bill on the third
anniversary of the commencement of the amendments.
[21]. Inserts a new section 116 as a
transitional provision providing that a HDO that is in
operation at the time of the repeal will continue to have
force despite the repeal.
The Committee makes no further comment.
Courts Legislation (Amendment) Bill
Introduced: 29 April 2003
Second Reading Speech: 1 May 2003
House: Legislative Assembly
Minister introducing Bill: Hon. R. Hulls
MLA
Portfolio responsibility: Attorney-General
Purpose
The Bill amends –
-
the Constitution Act 1975 and the
County Court Act 1958 with respect to the recognition for
pension purposes of certain prior service of persons appointed
as judges; and
-
the Magistrates' Court Act 1989 to
provide for fixed term appointment of Deputy Chief
Magistrates; and
-
clarifies the operation of
adjournments to undertake diversion programs and other powers
of the Court.
Content and Committee comment
[Clauses]
[2]. Part 2 of the Bill came into
operation on 1 May 2003 (Second reading Speech). The remaining
provisions in the Bill come into operation on the day after
Royal Assent.
[5]. Inserts a new sub-section 2A into
section 7 of the Magistrates' Court Act 1989. The effect of
section 7(2A) is to enable Deputy Chief Magistrates who are
appointed after the commencement of the provision to be
appointed on a fixed term basis for up to five years.
[6]. Amends section 128A of the
Magistrates' Court Act 1989 to clarify that persons charged
with an offence or offences which attract demerit points under
the Road Safety Act 1986 can be subject to a diversion program
order. [10]. Provides that the program applies to proceedings
for offences committed before or after the commencement of the
amendment.
Section 85 Report to the Parliament
pursuant to section 4D(b)(i) and (ii) of the Parliamentary
Committees Act 1968 concerning a repeal alteration or
variation of section 85 of the Constitution Act 1975
(limitation of the jurisdiction of the Supreme Court)
[7]. Declares that it is the intention
of clause 29 of Schedule 7, as affected by the new clause
28(4) of that Schedule, to alter or vary section 85 of the
Constitution Act 1975.
Clause 29 provides that no proceedings
may be brought in respect of any matter or thing that has been
deemed to be lawful or valid due to the operation of clause
28.
[8]. Amends clause 24(1) of Schedule 7
of the Magistrates' Court Act 1989 to clarify that PERIN
(Penalty Enforcement by Registration of Infringement Notice)
fine defaulters who are not suffering from a mental disorder
may be placed on a community based order or sentenced to a
term of imprisonment.
[9]. Inserts clause 28(4) into
Schedule 7. Clause 28(4) validates past orders made or
purported to be made before the commencement of [8] of the
Bill. The purpose of this clause is to validate orders of a
court that place PERIN fine defaulters who are not suffering
from a mental disorder on a community based order, or impose a
term of imprisonment with respect to such fine defaulters.
In amending clause 28 of Schedule 7,
attracts the operation of clause 29 of that Schedule. Clause
29 provides that no proceedings may be brought in respect of
any matter or thing that is deemed to have been lawfully or
validly done due to the operation of clause 28. Clause 29
limits the jurisdiction of the Supreme Court. In amending
clause 28 to validate past actions, this clause varies section
85 of the Constitution Act 1975.
The Committee notes the section 85
statement in the Minister’s Second Reading Speech –
I wish to make the following statement
under section 85 of the Constitution Act 1975 of the reason
for altering or varying that section by clause 29 of schedule
7, as affected by clause 28(4) of that schedule. The Bill, in
amending clause 28, necessarily attracts the operation of
clause 29. Clause 29 of Schedule 7 provides that no
proceedings may be brought (including proceedings in the
Supreme Court) in respect of any matters that are deemed to be
valid or lawful due to the operation of clause 28.
The Bill inserts clause 28(4) to
validate past actions of Magistrates who have placed PERIN
defaulters on community-based orders or sentenced them to
terms of imprisonment, where those infringement notice
defaulters were not suffering from a mental disorder or
impairment. This amendment is necessary to protect the State
and State officials from potential liability arising out of
their actions, avoid the prospect of lengthy appeals against
the validity of such orders and ensure that the intention of
the legislature in enacting Part 4 of Schedule 7 of the
Magistrates' Court Act 1989 is given full effect.
The Committee makes no further comment.
Drugs, Poisons and Controlled Substances (Volatile Substances) Bill
Introduced: 6 May 2003
Second Reading Speech: 7 May 2003
House: Legislative
Assembly
Minister introducing Bill: Hon. R. Hulls
MLA
Portfolio responsibility: Attorney-General
Purpose
The Bill amends the Drugs, Poisons and
Controlled Substances Act 1981 (the ‘Act’) to enable members
of the police force to search persons without warrant in
certain circumstances for the purpose of seizing volatile
substances or items used to inhale volatile substances; and to
apprehend and detain persons under 18 years of age to protect
them and others from the effects of inhaling volatile
substances.
Parliamentary Committee’s report
The Committee draws attention to the
report and the recommendations of the Parliament’s Drugs and
Crime Prevention Committee in its final report on the ‘Inquiry
into the Inhalation of Volatile Substances’ tabled in the
Parliament in September 2002.
The government’s response to the
recommendations made in this report was tabled in Parliament
on 18 March 2003.
Refer to Committee Website at <www.parliament.vic.gov.au/dcpc>
Content and Committee comment
[Clauses]
[2]. Provides for the Act (except
section 5) to come into operation on proclamation but not
later than 1 July 2004. Clause 5, the repeal of the Bill,
comes into operation on the second anniversary of the
commencement of the amendments made to the Act.
[4]. Inserts new sections 60A to 60T.
New section 60A provides that the
amendments are intended to protect the health and welfare of
persons under 18 years of age and declare that the provisions
do not criminalise the use or possession of volatile
substances (inhalant solvent abuse - chroming). Other than
possible forfeiture provisions, there are no criminal offences
or penalties provided by the amendments.
New section 60C provides that the
police powers referred to in the new Division may be exercised
in any public place or on private premises if the occupier
consents to entry by the police. If there is no occupier of
those premises, the owner may consent to entry.
New section 60D provides that a member
of the police force may use reasonable force when exercising
the search and seizure powers and the apprehension and
detention powers.
Search of person without warrant
New section 60E provides that a member
of the police force may, without warrant, search a person, or
search things in that person's possession or control, for a
volatile substance or an item used to inhale a volatile
substance. The member may only do so if he or she reasonably
suspects that the person is under 18 years of age, possesses
or has control of a volatile substance or an item used to
inhale a volatile substance and is inhaling or will inhale the
substance.
New section 60F provides that a member
of the police force may also search a person, or search things
in that person's possession or control, for a volatile
substance or an item used to inhale a volatile substance
regardless of the person's age. The member may only do so if
he or she reasonably suspects that the person intends to
provide a volatile substance or an item to a person under 18
years of age to inhale or use to inhale.
New section 60L provides that a member
of the police force may apprehend and detain a person who the
member reasonably believes –
-
is under 18 years of age; and
-
is inhaling or has recently inhaled
a volatile substance; and
-
is likely by act or neglect to cause
immediate serious bodily harm to himself or herself or some
other person.
New section 60M provides that a person
who has been apprehended and detained by a member of the
police force under section 60L must be released immediately
upon it becoming known that the person is not under 18 years.
Further, the person must be released
if a member of the police force no longer has grounds for
believing that the person has recently inhaled a volatile
substance or that the person is likely by act or neglect to
cause immediate serious bodily harm to himself or herself or
some other person.
The new section also provides that a
person who has been apprehended and detained by a member of
the police force under this section must, as soon as
practicable after being apprehended and detained, be released
into the care of a person who the member reasonably believes
is a suitable person to take care of the detained person and
who consents to taking care of the person.
If a member of the police force has
taken reasonable steps to do so but has been unable to release
a detained person into the care of a suitable person as
provided, then the member may release or continue to detain
the person, subject to the requirement to release a detained
person where the grounds for detention no longer apply (as
provided for in sub-section (2) of this new section).
A member of the police force must not
detain a person under this section in a police gaol, cell or
lock-up. Nor may a member of the police force interview or
question a detained person in relation to any known or alleged
offence during detention under the new Division.
New section 60T provides a regulation
making power including the manner in which searches may be
made.
[5]. Repeals the amendments inserted
into the Act by the Bill two years after their commencement.
The Committee makes no further
comment
Energy Legislation (Consumer Protection and Other Amendments) Bill
Introduced: 29 April 2003
Second Reading Speech: 1 May 2003
House: Legislative Assembly
Minister introducing Bill: Hon. J. Brumby MLA
Portfolio responsibility: Minister for State and Regional Development
Purpose
The Bill amends the –
-
Gas Industry Act 2001 and the
Electricity Industry Act 2000 to extend the consumer
protection safety net for gas and electricity customers until
31 December 2004 and to clarify the powers of VENCorp in
relation to the Electricity Industry Act 2000.
-
Electricity Industry Act 2000 to
provide that the Essential Services Commission may impose
licence conditions on transmission companies in relation to
land access, to provide that the Essential Services Commission
may direct a transmission company to enter into a lease in
relation to the provision of access to its land and to clarify
the power of distribution, transmission and generation
companies to compulsorily acquire easements in respect of
overhead and underground power lines.
-
Essential Services Commission Act
2001 to extend the special reference provisions until 31
December 2004.
-
National Electricity (Victoria) Act
1997 to ensure that the protection against civil monetary
liability afforded by the National Electricity (Victoria) Law
is fully effective.
-
Co-operative Schemes (Administrative
Actions) Act 2001 to validate certain administrative actions
taken by Commonwealth authorities or officers under specified
Gas Acts.
Content and Committee comment
[Clauses]
[2]. Provides that other than Part 7
and sections 13 and 15 the provisions in the Bill come into
operation on the day after Royal Assent. Part 7 commences on
proclamation. Sections 13 and 15 commence on proclamation but
not later than 1 July 2004.
In respect to the commencement by
proclamation of Part 7 the Committee notes the Explanatory
Memorandum –
the Commonwealth has introduced
amendments to the Trade Practices Act 1974 (Cth) to ensure
that doubts about the validity of the conferral of functions,
powers and duties on the Australian Competition and Consumer
Commission is clarified prospectively.
Clause 2(2) of the Bill provides that
Part 7 comes into operation on a day to be proclaimed. This
will allow for the co-ordination of the commencement of Part 7
of the Bill with the commencement of the amendments to the
Trade Practices Act 1974 (Cth).
Amendments to the Electricity Industry
Act 2000
[22]. Clarifies the power of
distribution companies, transmission companies and generation
companies to acquire easements with the approval of the
Governor in Council under section 86 of the Act by expressly
providing that the power may be used for the purpose of
erecting or laying power lines (or both), as well as
maintaining power lines.
Amendments to the National Electricity
(Victoria) Act 1997
[24]. Inserts new sections 8AB, 8AC
and 8AD to give effect to the immunities provided for in
sections 76, 77A and 78 of the National Electricity (Victoria)
Law (the ‘Law’) (as applied by the National Electricity
(Victoria) Act 1997).
Under section 76 of the Law, if the
National Electricity Market Management Company Limited (NEMMCO)
is satisfied that it is necessary to do so for reasons of
public safety or the security of the electricity system,
NEMMCO may authorise a person to require a National
Electricity Code participant to take certain action or, if the
National Electricity Code participant has failed to take the
action within a reasonable period, to take the action. A
person or a National Electricity Code participant that acts in
accordance with an authorisation or a requirement does not
incur any civil monetary liability unless the requirement is
made, or the action is taken, in bad faith.
Section 77A of the Law provides
immunity for certain acts or omissions of NEMMCO, network
service providers and their respective officers and employees.
They do not incur any civil monetary liability for an act or
omission in the performance or exercise of certain functions
or powers unless the act or omission is done or made in bad
faith or through negligence.
Section 78 of the Law provides that a
National Electricity Code participant and its officers and
employees do not incur any civil monetary liability for any
partial or total failure to supply electricity unless the
failure is due to an act or omission done or made in bad faith
or through negligence.
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)
[25]. Inserts a new section 8B(2) into
the Act and provides that it is the intention of sections 8AB,
8AC and 8AD (as inserted by [24] of the Bill) to alter or vary
section 85 of the Constitution Act 1975.
The Committee notes the section 85
statement in the Minister’s Second reading Speech –
Sections 8AB, 8AC and 8AD give
effective operation in Victoria to sections 76, 77A and 78 of
the National Electricity Law. These provisions limit the
liability of certain persons, including National Electricity
Code participants, NEMMCO and network service providers.
The reason for limiting the
jurisdiction of the Supreme Court is that the National
Electricity Law provisions safeguard the public interest in
ensuring that those involved in the safety and security of the
electricity system, the performance or exercise of functions
and powers under the National Electricity Law, and the supply
of electricity generally are able to take necessary action
with confidence that immunity against indeterminate civil
monetary liability applies.
It is a requirement of the national
electricity market legislation agreement between national
electricity market jurisdictions that they will maintain
uniformity in the application of the National Electricity Law
across jurisdictions. Sections 8AB, 8AC and 8AD and 8B(2) will
ensure this uniformity.
Amendments to the Co-operative Schemes
(Administrative Actions) Act 2001
The amendments made to this Act by the
Bill deal with doubts cast by the decision of the High Court
in The Queen v Hughes (2000) 171 ALR 155 on the ability of
Commonwealth authorities or officers to exercise powers and
perform functions under State legislation regulating the gas
industry. The predecessor to the Gas Industry Act 2001, the
Gas Industry Act 1994, conferred powers and functions on the
Australian Competition and Consumer Commission (‘ACCC’) in
relation to the Victorian Gas Industry Tariff Order 1998 and
the Market and System Operation Rules. The powers and
functions were conferred on the ACCC in reliance on section
44ZZM of the Trade Practices Act 1974 (Cth). The conferral of
these functions and powers was re-enacted in the Gas Industry
Act 2001. The amendments in Part 7 of the Bill ensure that
functions or powers are not imposed on Commonwealth
authorities and officers, including the ACCC, if their
imposition would exceed the legislative powers of the State
and, for the purposes of State law, validates any previous
invalid administrative action.
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)
[30]. Amends section 13 to ensure that
the enactment, commencement or operation of Part 7 of the Bill
does not give rise to any liability against the State.
[31]. Amends section 14 to provide
that it is the intention of section 13 as amended by this Bill
to alter or vary section 85 of the Constitution Act 1975.
The Committee notes the section 85
statement in the Minister’s Second Reading Speech –
Section 13, as so amended, is
necessary to limit the jurisdiction of the Supreme Court in
respect of any proceedings that might otherwise be brought
against the State of Victoria in respect of an administrative
action validated by the amendments made by Part 7 of this
Bill.
The reason for this is to protect the
State from potential liabilities arising out of past
administrative actions undertaken by Commonwealth authorities
or officers, including the Australian Competition and Consumer
Commission, under State gas legislation. The government
considers that Part 7 of the Bill is vital to ensure the
validity of regulatory functions performed by the Australian
Competition and Consumer Commission under Victorian gas
industry legislation. These amendments will be complemented by
amendments to the Trade Practices Act 1974 (Commonwealth) that
are currently before Federal Parliament.
The Committee makes no further
comment.
Estate Agents and Sale of Land Acts (Amendment) Bill
Introduced: 29 April 2003
Second Reading Speech: 30 April 2003
House: Legislative Assembly
Minister introducing Bill: Hon. R. Hulls MLA
Portfolio responsibility: Minister for Consumer Affairs
Purpose
The Bill amends the –
-
Sale of Land Act 1962 to regulate
certain aspects of public auctions of land, in particular
bidding by, or on behalf of, vendors;
-
Estate Agents Act 1980 to prohibit
estate agents from stating misleading estimates of real estate
sale prices; and to ensure that estate agents do not retain any
rebates or discounts attributable to work they do for clients;
and to enable the issuing of infringement notices under that
Act; and to enable the imposition of requirements that estate
agents and agent's representatives undertake continuing
professional development activities.
Content and Committee comment
[Clauses]
[2]. Part 1, Division 3 of Part 3 and
sections 46 to 49 come into operation on the day after Royal
Assent. Section 21 comes into operation on 1 July 2005. The
remaining provisions come into operation on proclamation but not
later than 1 June 2004.
Amendment of Sale of Land Act 1962
[3]. Inserts a new Division 4 which
applies to public auctions.
Dummy bidding prohibited
New section 38 prohibits a vendor making
a bid at a public auction of land and prohibits a person making
a bid on behalf of a person knowing that person is the vendor.
New section 39 prohibits an auctioneer
from accepting a bid if he or she knows the bid was made by, or
on behalf of, the vendor or from acknowledging a bid when he or
she knows that no bid was made.
New section 40 prohibits a person
procuring another person to make a bid at a public auction that
is contrary to section 38.
New section 41 allows an auctioneer,
despite section 38, to make a bid on behalf of the vendor in
specified circumstances.
New section 42 prohibits a person from
falsely claiming to have made a bid or falsely acknowledging
that he or she has made a bid.
New section 44 enables a purchaser of
land at a public auction to make an application to the Victorian
Civil and Administrative Tribunal (the ‘Tribunal’) for
compensation from any person who fails to comply with the
provisions relating to public auctions in Division 4, except
section 47. An application for compensation must be made within
2 years of the auction. The Tribunal may order a purchaser to
pay compensation to the vendor where the Tribunal considers the
purchaser's application to be frivolous, vexatious or without
substance.
New section 45 states that any auction
conditions that are contrary to, or that purport to restrict or
modify, any requirement imposed by Division 4 are void.
New section 47 applies to a person
intending to make a bid at an auction or a person acting on
behalf of a person intending to make a bid at an auction of
land. It prohibits the person from hindering or harassing rival
bidders or inducing rival bidders from participating in the
auction. It also prohibits the person from doing anything with
the intention of preventing, causing a major disruption to, or
to cause the cancellation of, the auction.
Private sale – cap on property value for
cooling of period abolished
[4]. Removes the $250 000 cap on a
purchaser's right to cool-off in respect to sale by private
treaty, at any time within 3 business days of a sale.
Amendment of Estate Agents Act 1980
[6] Inserts new sections 47A to 47D.
Estimated selling price to be stated
New section 47A requires that, before
obtaining a person's signature on an engagement to sell real
estate, an estate agent must ensure that the engagement states
the agent's estimated selling price or price range.
New section 47B prohibits an estate
agent or agent's representative making a false representation to
a seller or prospective seller as to the estimated selling
price.
New section 47C prohibits an estate
agent or agent's representative from stating, while marketing
the property, an estimated selling price that is less than the
estimated selling price or price range stated in the engagement.
New section 47D enables the Director, by
notice in writing, to require an estate agent to provide
evidence of the reasonableness of the estimated selling price or
price range recorded in the engagement.
[10]. Inserts new sections 95A to 95E.
These sections will enable infringement notices to be issued in
respect of offences under the Estate Agents Act 1980 that are
specified by the regulations.
[17]. Inserts new sections 12A to 12C.
12A allows the Director to apply to the
Magistrates' Court for an order that an unlicensed person stop
conducting estate agency business or from disposing of property
relating to such a business.
12B allows the Court to make a temporary
order under section 12A in specified circumstances.
12C prevents the Court, in any
application made under section 12A, from requiring an
undertaking as to costs from the Director or any other person.
Disallowable instruments – professional
development requirements
[33]. Inserts a new section 45 that
allows the Director by notice published in the Government
Gazette to require estate agents and agents’ representatives to
undertake specified training and professional development
activities. New section 45A requires the notice to be laid
before both Houses of Parliament and provides for disallowance.
New section 45B requires the notice to also be published on the
Internet.
[35]. Removes the prohibition, in
section 48, on an estate agent sharing a commission, but
requires the estate agent to let clients know that a commission
will be shared.
[47]. Inserts new sections 70A to 70E.
New section 70A deals with orders
requiring the supply of certain information in writing or orally
to the Magistrates’ Court relating to an estate agents business.
Abridgment of the privilege against
self-incrimination – documents must be provided
New section 70B provides a protection
against self-incrimination other than in respect to documents
required to be produced under Part VI (accounts and audit) of
the Act.
[48]. Inserts a new section 91(2) to
create new offences where an agent's representative or other
employee fraudulently converts to his or her own use, fails to
account for, or fraudulently renders an account, for any money
received or held by him or her during the course of his or her
duties or by his or her employer. These offences are indictable
offences and a penalty of 500 penalty units or imprisonment for
a maximum of 10 years applies for non-compliance.
The Committee makes no further
comment.
Fair Trading (Amendment) Bill
Introduced: 6 May 2003
Second Reading Speech: 7 May 2003
House: Legislative Assembly
Minister introducing Bill: Hon. R. Hulls
MLA
Portfolio responsibility: Minister for
Consumer Affairs
Purpose
The Bill –
(a) Amends the Fair Trading Act
1999 to increase consumer protection under that Act and
in particular –
-
to provide for statutory
conditions and warranties to apply in certain contracts of
supply of goods or services;
-
to provide for unfair terms in
consumer contracts to be void;
-
to give the Director additional
powers of enforcement in relation to the conduct of
suppliers and business licence holders;
-
to improve the operation of the
pyramid selling provisions;
-
to provide for details that must
be included in advertisements promoting the supply of
goods or services;
-
to provide for the making of fixed
term ban orders;
-
to further regulate contact sales
agreements;
-
to provide for a procedure for
small claims.
(b) Repeals the Small Claims Act
1973;
(c) Repeals Part IV of the Goods
Act 1958;
(d) Amends the Business Licensing
Authority Act 1998 to give the Authority additional
powers of enforcement in relation to the conduct of business
licence holders;
(e) Amends the Interpretation of
Legislation Act 1984 to clarify the requirements for the
tabling of incorporated documents;
(f) Amends the Partnership Act
1958 to transfer the role of the Commissioner for
Corporate Affairs in relation to limited partnerships to the
Director.
Content and Committee comment
[Clauses]
[2]. Sections 1, 2, 3(1), 3(3), 4 to
10, 13 to 25, 39 to 44, 53, 60, 61, 65, 70, 73, 74, 78 and
82 to 91 come into operation on the day after Royal Assent.
The remaining provisions come into operation on proclamation
but not later than 31 December 2003.
Exception to offence of pyramid
selling – reverse onus where exception provided
[8]. Amends section 22 of the Act to
provide for a sharing of the evidential burden in
prosecutions against operators of pyramid selling schemes by
requiring the prosecution to prove the pyramid nature of the
scheme and by providing an exception if evidence is provided
by the defendant that the pyramid selling scheme was a
legitimate multi-level marketing scheme by showing that
there was a reasonable relationship between the price of
goods or services involved in the scheme and their real
value. (also see section 130 of the Magistrates’ Court
Act 1989).
[11]. Inserts a new Part 2A into the
Act which sets out the statutory conditions and warranties
implied into contracts for the supply of consumer goods and
services. This Part is modelled on Part IV of the Goods
Act 1958 as those provisions were amended by the
Wrongs and Other Acts (Public Liability Insurance Reform)
Act 2002 to provide for waivers permitting
self-assumption of risk by people participating in
inherently risky activities.
Section 32N permits a supplier of
“recreational services” (as defined in subsection (3)) to
limit their liability in certain circumstances under
sections 32J or 32JA for death or personal injury arising
from the supply of those services.
Unfair terms in consumer
contracts
[12]. Inserts a new Part 2B into the
Act making void terms in consumer contracts that are found
to be unfair, making void terms in standard form consumer
contracts that are prescribed as unfair, and providing for
offences in relation to the use of prescribed unfair terms
and empowering the Director of Consumer Affairs Victoria
(the ‘Director’) to apply for injunctions to prevent the
continued use of unfair terms.
New section 32W defines an unfair
term as a term that, contrary to the requirements of good
faith and in all the circumstances, causes a significant
imbalance in the parties’ rights and obligations arising
under that contract to the detriment of the consumer.
New section 32X provides a list of
matters that a court or the Tribunal can take into account
in assessing whether a term is unfair.
New section 32Y provides that an
unfair term in a consumer contract entered into after the
commencement of the section is void, that a prescribed
unfair term in a standard form contract is void (whenever
the standard form contract was entered into), and that the
relevant contract continues to bind the parties to the
extent it is capable of without the unfair term.
New section 32Z provides for
offences for a supplier that uses a standard form contract
containing a prescribed unfair term or attempts to enforce a
prescribed unfair term in a standard form contract.
New section 32ZA allows the Director
to apply to the Tribunal for an injunction against a person
using or recommending the use of an unfair term in a
consumer contract or a prescribed unfair term in a standard
form contract.
New section 32ZB allows the Director
to require the production of documents to facilitate the
consideration of the questions whether a term of a standard
form contract should be prescribed as unfair and provides
for an offence for a person who refuses or fails to comply
with a requirement of the Director.
Abridgment of privilege against
self-incrimination – documents must be produced
New sub-sections 32ZB(5) to (7)
provide –
(5) A person must not, without
reasonable excuse, refuse or fail to comply with a
requirement of the Director under this section within the
required time. Penalty: 60 penalty units.
(6) It is a reasonable excuse for
a natural person to refuse or fail to give information or
do any other thing that the person is required to do by or
under this section, if the giving of the information or
the doing of that other thing would tend to incriminate
the person.
(7) Despite sub-section (6), it is
not a reasonable excuse for a natural person to refuse or
fail to produce a document that the person is required to
produce by or under this section, if the production of the
document would tend to incriminate the person.
Abridgment of privilege against
self-incrimination – use limitation
New section 106I gives to the
Director a power to require, by notice, information to be
provided, documents to be produced and evidence to be given
where there has been or may have been a contravention of the
Act, along the lines of the power given to the Australian
Competition and Consumer Commission under section 155 of the
Trade Practices Act 1974 (Cth), and provides for an
offence for a person to refuse to comply with a notice, to
give false or misleading information or evidence or to
obstruct or hinder the Director.
The privilege against
self-incrimination in respect to answering questions,
providing information or documents is abrogated, however the
section provides that any information given is inadmissible
against an individual in any criminal proceedings except
under section 106I, and is also inadmissible against a
corporation in any criminal proceedings except under the
Act.
[47]. Amend section 107 and inserts
a new 107(3) to allow the Tribunal to resolve personal
injury claims under $10,000 that are attendant on a consumer
and trader dispute.
[49]. Amends section 108 of the Act to
insert additional powers of the Tribunal to resolve consumer
and trader disputes, namely to declare that a debt is not
owing and to order a party to do or refrain from doing a
thing such as the removal of an adverse credit reference.
[51]. Inserts new sections 112A and
112B to require a court to dismiss a small claim if the
purchaser has made an application to the Tribunal and has
lodged the amount in dispute with the Tribunal. (see also
clause 67 concerning section 85 (limitation of the
jurisdiction of the Supreme Court) of the Constitution Act
1975).
[59]. Inserts new sections 151A,
151B and 151C into the Act to provide for cease trading
injunctions.
Section 151A allows the Minister or
the Director to apply to the Supreme Court for a cease
trading injunction in relation to a supplier who has
contravened, attempted to contravene, conspired to
contravene, aided, abetted, counselled or procured a person
to contravene, or induced or attempted to induce a person to
contravene the Act, or who was knowingly concerned in a
contravention of the Act; and empowers the Supreme Court to
grant the injunction against a person engaging in that
conduct where, unless it does so, there is imminent danger
of substantial damage to consumers.
Section 151B enables the court to
grant an interim cease trading injunction.
[63]. Inserts new Division 3 into
Part 11 of the Act to allow for the issuing of infringement
notices for appropriate offences under the Act.
[66]. Substitutes a new section 163
of the Act to require consumer documents to be easily
legible, in a minimum 10 point font, and clearly expressed;
to allow the Director to apply to the Tribunal for an order
prohibiting the use of a consumer document that does not
comply with those requirements; and for an offence to fail
or refuse to comply with such an order.
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).
[67]. Amends section 164 of the Act
to express the intention of new section 112A to vary section
85 of the Constitution Act 1975.
The Committee notes the section 85
statement in the Minister’s Second Reading Speech –
Clause 51 of the Bill inserts a new
section 112A into the Fair Trading Act.
Section 112A provides that where a
consumer who is in dispute with a trader over a 'small
claim' makes an application to the Tribunal to hear the
claim and lodges the amount in dispute with the tribunal,
the tribunal has exclusive jurisdiction over the claim and
that any proceedings by the trader in a court in respect of
the claim be dismissed. This is to ensure that in repealing
the Small Claims Act 1973 and transferring its small claim
procedure to the Fair Trading Act, the tribunal is retained
as the only forum for dealing with claims that would
formerly have been made to it under the Small Claims Act
1973. That act also has a procedure for a consumer to lodge
the amount in dispute with the tribunal.
The reason why the Tribunal is made
the only forum able to deal with small claims is because it
is intended to have an informal, low-cost procedure to deal
with such claims, without, for instance, the expense
involved in having legal representation.
It is considered critical to keep
costs at a minimum to ensure that the benefit of any
judgment is not effectively rendered useless by the costs
involved. That intention is frustrated if small claims can
be taken to the courts.
[72]. Repeals the Small Claims Act
1973.
[73]. Amends section 97A of the
Goods Act 1958 to allow for an exemption from the
requirement that a term be in the prescribed form or contain
the prescribed particulars.
[74].Inserts new section 97B into
the Goods Act 1958 to provide for the making of the
exemption order for the purpose of section 97A and to permit
an exemption from the requirement that the term be signed.
[75]. Repeals Part IV of the Goods
Act 1958.
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)
[81]. Amends section 4(3) of the
Administrative Law Act 1978 to substitute a reference to
small claims under Part 9 of the Fair Trading Act 1999 for
small claims under the Small Claims Act 1973, requiring the
Supreme Court to refuse an application for review unless it
is satisfied that the applicant has made out a prima facie
case for relief on the ground that the Tribunal had no
jurisdiction in relation to the matter, or there had been a
denial of natural justice to a party in the proceeding
before the Tribunal.
The clause also amends section 15 to
express the intention of section 4(3), as amended by the
Bill to vary section 85 of the Constitution Act 1975.
The Committee notes the section 85
statement in the Minister’s Second Reading Speech –
Clause 81(1) of the Bill amends
section 4(3) of the Administrative Law Act 1978 to provide
that limitations on applications for review in that
provision will apply to small claims under part 9 of the act
in the same way as they applied to small claims under the
Small Claims Act 1973, which is to be repealed.
Section 4(3) of the Administrative
Law Act requires the Supreme Court to refuse an application
for review unless it is satisfied that the applicant has
made out a prima facie case for relief on the ground that
the tribunal had no jurisdiction in relation to the matter,
or there had been a denial of natural justice to a party in
the proceeding before the tribunal.
The reason why the grounds for
review in small claims are limited to a lack of jurisdiction
or a denial of natural justice, and why an applicant must
make out a prima facie case for review, is to ensure that
the benefits obtained by having an informal, low-cost
procedure to deal with such claims are not effectively
defeated by allowing room for disproportionately expensive
applications to the Supreme Court that are used to frighten
the other party into giving up its order.
The Committee makes no further
comment.
Fisheries (Amendment) Bill
Introduced: 6 May 2003
Second Reading Speech: 7 May 2003
House: Legislative Assembly
Minister introducing Bill: Hon. R. Cameron MLA
Portfolio responsibility: Minister for Agriculture
Purpose
The Bill makes a number of machinery
of government changes and amends the Fisheries Act 1995
and the Conservation, Forests and Lands Act 1987 to
provide for the responsibilities of the Secretary to the
Department of Primary Industries under those Acts.
Content and Committee comment
[Clauses]
[2]. The amendments in the Bill come
into operation on the day after Royal Assent.
The Committee makes no further
comment.
Health Legislation (Amendment) Bill
Introduced: 30 April 2003
Second Reading Speech: 1 May 2003
House: Legislative Council
Minister introducing Bill: Hon. G. Jennings MLC
Portfolio responsibility: Minister for Health
Purpose
The Bill makes miscellaneous amendments
to the Drugs, Poisons and Controlled Substances Act 1981, the
Health Services Act 1988, the Human Tissue Act 1982, the
Lord
Mayor's Charitable Fund Act 1996, the Mental Health Act 1986 and
the Nurses Act 1993.
Content and Committee comment
[Clauses]
[2]. The provisions in the Bill (other
than section 6) come into operation on the day after Royal
Assent. Section 6 commences on proclamation but not later than 1
June 2004.
[4]. Amends section 141 of the Health
Services Act 1988 which provides that information must generally
be kept confidential if a patient could be identified from that
information, except for a number of specific authorisations.
The amendment makes it clear that
section 141 applies only to the giving of information to third
parties and not to communications between staff of the same
health service as these are governed by Health Privacy Principle
2 of the Health Records Act 2001.
The amendment clarifies that where a
patient consents to the release of identifying information, that
consent may be express or implied, reflecting current law.
Section 141(3) is amended to specify the
details of 4 of the circumstances in which a health service can
disclose patient information. These disclosures are necessary to
enable health services to carry out and exercise their statutory
functions and powers. Three of these circumstances are drawn
from the Health Privacy Principles of the Health Records Act
2001. The circumstances are where the disclosure of patient
information –
-
is for a secondary purpose, directly
related to the primary purpose for which it was collected, and
the purpose is one for which the patient would reasonably expect
the information to be used (Health Privacy Principle 2.2(a));
-
is necessary for the establishment,
exercise, or defence of a legal claim (Health Privacy Principle
2.2(k));
-
is in circumstances that are
prescribed by law (Health Privacy Principle 2.2(1));
-
relates to a notification or a claim
to be given to a person or body providing insurance or
indemnity.
[5]. Inserts a new section 231 in the
Health Services Act 1988 to provide that the Order in Council
amending Schedule 1 of that Act to delete the Numurkah District
War Memorial Hospital and insert the Numurkah District Health
Service as a public hospital was deemed to be published on 2
October 1997.
[6]. Inserts a new section 39A in the
Human Tissue Act 1982 to allow prescribed tissue banks to
recover reasonable costs in relation to certain activities
undertaken in accordance with that Act and makes consequential
amendments to the offence provisions in that Act relating to the
buying or selling of human tissue do not apply in those
circumstances.
[10]. Amends section 10 of the Mental
Health Act 1986 to provide that in exercising the power of
apprehension of a person who appears to be mentally ill under
section 10, in addition to acting on the advice of a registered
medical practitioner, police may also in the future act on the
advice (initial assessment) of a mental health practitioner as
to whether a person apprehended by the police should be released
or be examined by a medical practitioner.
[11]. Amends section 120A of the Mental
Health Act 1986 to make similar provision (see [4] above)
relating to patient information for psychiatric services
as for other health services. The amendments –
-
replace the term “person to whom this
section applies” with the term “relevant person”;
-
clarify that consent includes both
express and implied consent;
-
amend section 120A(3) to specify the
details of 4 of the circumstances in which a psychiatric service
can disclose patient information in line with the amendments in
clause 4(3) for other health services. These disclosures are
necessary to enable psychiatric services to carry out and
exercise their statutory functions and powers.
The Committee makes no further comment.
Livestock Disease Control (Amendment) Bill
Introduced: 29 April 2003
Second Reading Speech: 1 May 2003
House: Legislative Assembly
Minister introducing Bill: Hon. B. Cameron MLA
Portfolio responsibility: Minister for Agriculture
Purpose
The Bill amends the Livestock Disease
Control Act 1994 to make further provision for the prevention,
monitoring and control of exotic livestock diseases. In
addition, several amendments bring into effect decisions made by
the Government in 2002 in relation to the compensation fund for
diseases of sheep and goats under that Act.
The Bill also amends the Plant Health
and Plant Products Act 1995 to make further provision for the
control and eradication of exotic diseases of plants and plant
products.
Content and Committee comment
[Clauses]
[2]. Provides for the Bill to come into
operation on the day after Royal Assent.
Amendments to the Livestock Disease
Control Act 1994
[4]. Amends section 41(1) of the Act to
extend the offences relating to storing, collecting or feeding
material originating from a placental mammal in respect of pigs
to material that has been in direct contact with material
originating from a placental mammal. For example, the new
offence would apply to a person who feeds a pig with pie casings
(pastry) contaminated with meat from the pies.
This clause inserts a new section
41(1)(d) that makes it an offence to supply to another person
material originating from a placental mammal or that has been in
direct contact with material originating from a placental mammal
if the person supplying the material knows it is for use for
feeding to a pig.
[6]. Substitutes section 79C of the Act
to allow the Governor in Council to declare, by Order in Council
published in the Government Gazette, a disease to be a disease
for which compensation may be paid under Division 3A of Part 5
of the Act in respect of sheep or goats. Johne's disease will
continue to be specified in the Act as a disease for which
compensation is payable under Division 3A of Part 5 of the Act.
[7]. Substitutes section 105(1) of the
Act to enable the Secretary, in addition to being able to
certify that an outbreak of an exotic disease exists in any part
or area of Victoria, to certify that an outbreak of an exotic
disease exists in any part or area of Australia outside
Victoria.
The clause also amends section 105(2) to
make it clear that it applies in respect of an exotic disease
certified as existing by the Secretary under section 105(1)
whether in Victoria or any other part or area of Australia.
Section 105(2) prevents court actions from being instituted or
continued against the Minister, the Secretary, an inspector or
any other person that would stop, prevent or restrain disease
control activities in respect of the certified disease. (also
note section 85 Constitution Act 1975 statement in the
Minister’s Second Reading Speech at [9] below).
[8]. Amends section 108 of the Act to
allow the Secretary to appoint, as a class, police officers and
emergency services workers as inspectors under the Act if the
Secretary has made an order under section 105 of the Act
certifying the existence of an exotic disease. Police officers
and emergency services workers so appointed will be able to
perform the functions and exercise the powers of inspectors
under Division 3 of Part 8 of the Act subject to any
restrictions specified in the instrument of appointment.
Police officers appointed as inspectors
as a class are required, on request, to show their
identification as a police officer when exercising powers under
the Act. Emergency services workers are required to show their
identification as an emergency services worker in conjunction
with a copy of the instrument of appointment of the class of
persons to which they belong.
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 new section 138A into the
Act to declare the intention of section 105(2) to alter or vary
section 85 of the Constitution Act 1975.
Section 105(2) limits the jurisdiction
of the Supreme Court to the extent necessary to prevent it from
hearing actions which would stop, prevent or restrain disease
control activities in respect of exotic diseases certified to
exist by the Secretary, whether within Victoria or any other
part of Australia.
The Committee notes the section 85
statement in the Minister’s Second Reading Speech –
Section 105(2) currently prevents the
institution or continuation of certain court proceedings to
prevent or restrain the Minister, the Secretary, an inspector or
any other person from undertaking disease control activities
necessarily associated with controlling and eradicating an
exotic livestock disease which the Secretary has certified under
section 105(1) to exist in Victoria.
New section 105(1) of the Act
substituted by clause 7 of the Bill will enable the Secretary to
certify that an outbreak of an exotic disease exists in any part
or area of Australia, not just Victoria, if it is necessary or
expedient to take action to prevent, or reduce the risk of, the
spread of the disease in Victoria.
Section 105(2) is therefore amended by
clause 7 of the Bill to prevent the institution or continuation
of certain court proceedings that would stop, prevent or
restrain action being taken under the act to deal with the
outbreak or suspected outbreak of a disease certified to exist
under section 105(1), whether in Victoria or any other part of
Australia.
The reason for preventing the
institution or continuation of any proceedings in the Supreme
Court that would stop, prevent or restrain action in response to
an outbreak or suspected outbreak of an exotic disease in any
part of Australia is that preventive action following such an
outbreak must be put in place immediately. Delays in this action
by proceedings before a court, even by hours, could result in
the epidemic spread of disease, adding significantly to the
impact and costs of any eradication response.
If there is an outbreak of disease such
as foot and mouth disease or BSE (mad cow disease) in another
State, Victoria would have to take immediate response actions
such as imposing bans on the movement of livestock or preventing
livestock leaving saleyards until the situation and the risks to
Victoria were better understood.
It was clear from Exercise Minotaur that
immediate response actions are required when an exotic disease
is confirmed or suspected to be present in any part of
Australia.
The lessons from the 2001 outbreak of
foot and mouth disease in the United Kingdom were clear. An
earlier response to the disease outbreak, particularly action to
prevent the movement of livestock, could have significantly
minimised the extent of the epidemic and saved billions of
dollars.
It should be noted that a person is not
prevented from taking action to recover damages in respect of
any loss incurred or damage suffered as a result of negligent
action undertaken in respect of a control program.
The Committee makes no further comment.
Planning and Environment (Metropolitan Green Wedge Protection) Bill
Introduced: 29 April 2003
Second Reading Speech: 1 May 2003
House: Legislative Assembly
Minister introducing Bill: Hon. M. Delahunty MLA
Portfolio responsibility: Minister for Planning
Purpose
The Bill amends the Planning and Environment
Act 1987 to require the authorisation of the Minister for the
preparation of certain amendments to planning schemes applying to
green wedge land in certain metropolitan fringe areas; and to require
ratification by Parliament of certain amendments to planning schemes
applying to green wedge land in certain metropolitan fringe areas.
Content and Committee comment
[Clauses]
[2]. The provisions in the Bill come into
operation on the day after Royal Assent.
[3] Provides for the insertion into the
Planning and Environment Act 1987 of a new Part 3AA, which provides
protection for metropolitan green wedge land by setting out special
procedures for certain planning scheme amendments affecting that land.
New Division 1 is introductory and sets out a
number of “definitional” terms.
New section 46AA lists planning schemes that
are metropolitan fringe planning schemes. These are the schemes for
the municipal districts that cover the outer metropolitan area, and
are the schemes that include metropolitan green wedge land.
New Division 2 sets out the requirements for
ministerial authorisation of certain planning scheme amendments that
affect green wedge land.
New Division 3 provides for certain amendments
that affect green wedge land to be ratified by Parliament before they
can have any effect. The requirement and the procedure for
ratification is generally similar to that provided for in Parts 3A and
3C of the Planning and Environment Act 1987 for amendments to the
Upper Yarra Valley and Dandenong Ranges Regional Strategy Plan and the
Melbourne Airport Environs Strategy Plan.
The Committee makes no further comment.
Road Safety (Heavy Vehicle Safety) Bill
Introduced: 29 April 2003
Second Reading Speech: 1 May 2003
House: Legislative Assembly
Minister introducing Bill: Hon. P. Batchelor MLA
Portfolio responsibility: Minister for Transport
Purpose
The main purpose of this Act is to amend the
Road Safety Act 1986 (the ‘Act’) and the Transport Act 1983 to enable
laws relating to the safe use of heavy vehicles to be better enforced by
providing enhanced inspection and search powers.
Content and Committee comment
[Clauses]
[2]. The provisions will come into operation on
proclamation but not later than by 1 July 2003.
[3]. Inserts a new Part 9 into the Act which
deals with inspections and searches concerning heavy vehicles.
New section 112 gives the Roads Corporation and
the Secretary to the Department of Infrastructure power to authorise
officers of the Roads Corporation or the Department of Infrastructure to
carry out the inspections and searches permitted by the new Part 9.
New section 114 provides that an inspector may
inspect a vehicle to which Division 2 applies to ascertain whether a
relevant law or scheme is being complied with.
New section 115 provides that an inspector may
search a vehicle to which Division 2 applies if the inspector believes
on reasonable grounds that specified circumstances exist. An inspector
may form the necessary belief during or after an inspection, or
independently of an inspection. An inspector is not empowered to search
a person under this section. A member of the police force may use
reasonable force when exercising a power of search under section 115.
Authorised officers, that is, officers of the Roads Corporation or the
Department of Infrastructure who are appointed under section 112, are
not authorised to use force in the exercise of a power under section
115.
New section 118 provides that an inspector may
exercise a power to inspect or search a heavy vehicle under Division 2
at any time, and that the inspector does not need to obtain the consent
of any person before doing so.
New section 124 provides that an inspection or
search of premises may not be made of premises that are unattended at
the time of the proposed entry, or of premises that are used for
predominantly residential purposes, unless consent to the inspection or
search has been obtained under section 125.
Search warrants
New section 128 allows an inspector to apply to
a magistrate for the issue of a search warrant in relation to premises,
if the inspector believes on reasonable grounds that there is on the
premises evidence of a contravention of a road or transport law. A
search warrant must be issued in accordance with the Magistrates' Court
Act 1989.
New section 129 requires an inspector to
announce that he or she is authorised by the warrant to enter the
premises and to give any person at the premises an opportunity to allow
entry, unless immediate entry is required to ensure the safety of any
person, or to ensure that the effective execution of the warrant is not
frustrated.
New section 132 allows inspectors, for the
purposes of ascertaining whether or not a relevant law or scheme has
been contravened or complied with, to require responsible persons to
provide documents, devices or other things relating to heavy vehicles.
Duty to provide reasonable assistance – defence
– reverse onus of proof
New section 133 allows inspectors to direct a
responsible person to provide reasonable assistance to the inspector to
enable the inspector effectively to exercise a power under Part 9. It is
an offence to fail to comply with such a direction. However there is a
defence to a charge under the section if the direction was unreasonable,
or the direction or its subject-matter was outside the scope of the
business or other activities of the person.
New section 134 specifies the circumstances in
which an inspector may enter a vehicle and run its engine, or authorise
another person to do so.
New section 135 provides that an inspector may
direct an individual who is a responsible person to state the person’s
name, home address and business address. It is an offence to fail to
comply with this direction, or to knowingly provide a false name or
address.
Abridgment of privilege against
self-incrimination – use limitation and documents
New section 138 provides that a person is not
entitled to refuse to supply information in accordance with a direction
from an inspector given under Division 5 on the basis of the privilege
against self-incrimination. However information obtained from a natural
person by means of a direction given under Division 5 is only admissible
in evidence against the person in criminal proceedings if it is –
-
relevant to a charge of providing false
information;
-
information as to the person's name, home
address or business address obtained under section 135;
-
contained in a document or item that the
person is required to keep by any law or approved road transport
compliance scheme; or contained in a document or item that the person
was not required to identify, reveal the location of, or explain the
contents of.
New section 142 provides for the issue of an
embargo notice in respect of a thing that cannot, or cannot readily, be
physically seized and removed.
The Committee makes no further comment.
Royal Agricultural Showgrounds Bill
Introduced: 29 April 2003
Second Reading Speech: 1 May 2003
House: Legislative Assembly
Minister introducing Bill: Hon. M. Delahunty MLA
Portfolio responsibility: Minister for Planning
Purpose
The Bill repeals the Royal Agricultural
Showgrounds Act 1931, which currently governs use of the land on which
the Showgrounds are situated, and to make new provisions for use of the
land.
Content and Committee comment
[Clauses]
Forced repeal if no agreed corporation
incorporated by 31 December 2004
[2]. The Act will come into operation on
proclamation. Part 2 of the Bill provides for the Minister to approve a
company following agreement between the Crown and the Royal Agricultural
Society (the ‘Society’) on certain matters. This approval is a
precondition for other actions under the Act, so that if agreement
cannot be reached, then other provisions of the Act can have no effect.
The clause provides therefore that if agreement cannot be reached by 31
December 2004, then the Act is automatically repealed.
[4]. Provides for the recognition of an
agreement that sets out those matters which must be agreed between the
parties prior to the Act having effect, including the establishment of a
corporation and actions necessary for consolidation of the land.
[5]. The Minister may approve an agreement
establishing a corporation consisting of the Society and the Crown.
[12]. Provides that property, rights and
liabilities transferred to the corporation are subject to any rights or
encumbrances which applied prior to the allocation.
[15]. Transfer of property rights or liabilities
from the Society to the corporation is exempted from any duty or other
tax.
[18]. Makes specific provision for the
preservation of leases and other interests in the land which existed
prior to the surrender of the Society’s freehold land to the Crown or
the revocation of reservations provided by the Bill in [7]. Those
interests are specified In Schedule 3. The preservation of interests
prevails despite any other Act or Crown grant.
[19]. As a result of the Bill certain sections
of the Royal Agricultural Show-grounds Act 1931 will become redundant
and are therefore repealed.
Schedule 3 specifies the interests which are
preserved under the operation of [18].
The Committee makes no further comment.
State Taxation Acts (Miscellaneous Amendments) Bill
Introduced: 6 May 2003
Second Reading Speech: 7 May 2003
House: Legislative Assembly
Minister introducing Bill: Hon. J. Brumby MLA
Portfolio responsibility:Treasurer
Purpose
This Bill makes a number of miscellaneous
technical amendments and clarifications to the Duties Act 2000. It
also inserts an anti-avoidance provision in respect of unit trust
scheme transactions, and strengthens the current land rich
provisions. It introduces a concession from motor vehicle duty in
favour of persons with physical disabilities acquiring vehicles that
have been modified to enable them to drive, and clarifies the
dutiable value of certain items following the Supreme Court decision
in Royal & Sun Alliance Insurance Australia Ltd v Commissioner of
State Revenue.
The Bill also introduces amendments to the
grouping provisions contained in the Pay-roll Tax Act 1971 following
the Court decision in The Muirs Electrical Co. Pty Ltd v The
Commissioner of State Revenue and removes the pay-roll tax exemption
in favour of wages paid or payable to apprentices and trainees.
Content and Committee comment
[Clauses]
[2]. The provisions in the Bill (other than
sections 4, 6, 13(2), 15, 19 and 20 and 23) comes into operation on
the day after Royal Assent.
A number of the minor amendments to the
Duties Act 2000 are deemed to have come into operation on 1 July
2001, being the date that Act came into operation.
Section 4 is deemed to have come into effect
on 8 February 2003. This is consistent with the Treasurer's
announcement on 7 February 2003 that legislation would be
introduced, from that day, preventing the use of complex unit trust
schemes to avoid conveyance duty on property transactions and
ensuring the original intention of the legislation, being that such
transactions were dutiable, is maintained.
Section 23(1) and (2) is deemed to have come
into operation on 7 May 2003. This is to ensure that amendments
relating to the pay-roll tax exemptions for apprentices’ and
trainees’ wages have effect from the date of the Treasurer’s budget
speech.
Section 19 concerning the motor vehicle duty
concession for disabled motorists comes into operation on 1 July
2003.
Section 23(3) comes into operation on 1 January
2004.
Amendments to the Duties Act 2000
Part 2 of the Bill clarifies the operation
of various provisions of the Act.
[4]. Sub-clause (2) inserts a new section
7(2A) into the Act, which re-introduces a discretion similar to that
contained in section 64B(9)(d) of the repealed Stamps Act 1958. It
ensures that an excluded transaction will be dutiable if the
Commissioner is of the opinion that it is part of a scheme or
arrangement that is made with a collateral purpose of reducing duty
otherwise chargeable under Chapter 2. This clause comes into effect
on 8 February 2003, being the day after the public announcement that
legislation would be introduced preventing the use of unit trust
schemes to avoid conveyancing duty on property transactions.
[6]. Inserts a new section 20(2) into the
Act to provide that, in determining the dutiable value of dutiable
property, there is no discount for the GST (if any) payable on the
supply of the property. This amendment has been made to provide
certainty and clarity following the Supreme Court decision in Royal
& Sun Alliance Insurance Australia Ltd v Commissioner of State
Revenue, which questioned the imposition of insurance duty on
GST-inclusive premium amounts. This amendment also reflects the
government's announcement on 2 March 2000 that duty would be charged
on GST inclusive values once the Commonwealth GST legislation came
into force. This provision is deemed to have effect from 1 July
2001, being the date the Duties Act 2000 commenced.
[10]. Amends section 38(2) of the Act by
inserting the term “domestic relationship” into that section. The
effect of this amendment is that the exemption from duty referred to
in section 38 applies to establishments of trust upon the breakdown
of marriages and of domestic relationships. This is consistent with
other provisions of the Act that treat the breakdown of either type
of relationship in the same manner for duty purposes and is in
accordance with the Statute Law Amendment (Relationships) Act 2001.
[13(2)]. Substitutes the words "private
company" with the words "private corporation" in section 76(3)(a) of
the Act. This is a minor technical correction to ensure that private
unit trusts are not prejudiced.
Retrospective amendment
[15]. Inserts a new section 177(2A) into the
Act to provide that an insurance premium is deemed to include any
amount in respect of GST on the supply to which the insurance
relates. This amendment has been made to provide certainty and
clarity for the insurance industry following the Supreme Court
decision in Royal & Sun Alliance Insurance Australia Ltd v
Commissioner of State Revenue, which questioned the imposition of
insurance duty on GST-inclusive premium amounts under the now
repealed Stamps Act 1958. This amendment also reflects the
Government's announcement on 2 March 2000 that duty would be charged
on GST-inclusive values once the Commonwealth GST legislation came
into force.
The provision is deemed to have effect from
1 July 2001, being the date the Duties Act 2000 commenced.
[19]. Inserts a new section 218(2), (3) and
(4) into the Act to provide that if a person with a physical
disability makes an application for registration of a motor vehicle,
or for a transfer of registration of a motor vehicle, and the motor
vehicle has been modified to enable that person to drive it, the
amount of duty payable in respect of that application for
registration or for transfer is to be reduced by the reasonable cost
of the modification. Where the reasonable cost of the modification
is greater than the amount of duty chargeable, no duty is chargeable
on the application.
[20]. Inserts a new section 219(2) into the
Act which states that, in determining the dutiable value of a motor
vehicle, there is to be no discount for the amount of GST (if any)
payable on the supply of the vehicle.
This amendment has been made to provide
certainty following the Supreme Court decision in Royal & Sun
Alliance Insurance Australia Ltd v Commissioner of State Revenue,
which questioned the imposition of insurance duty on GST-inclusive
premium amounts under the now repealed Stamps Act 1958. This
amendment also reflects the Government's announcement on 2 March
2000 that duty would be charged on GST inclusive values once the
Commonwealth GST legislation came into force. This provision is
deemed to have effect from 1 July 2001, being the date the Duties
Act 2000 commenced.
Amendments to the Pay-Roll Tax Act 1971
Part 3 of the Bill clarifies the operation
and extent of operation of various provisions of the Pay-roll Tax
Act 1971. These amendments are necessary as the result of decisions
made in Muir Electrical Co Pty Ltd v Commissioner of State Revenue
[2001] VSCA 86 and The Muir Electrical Co Pty Ltd v The Commissioner
of State Revenue (No 2) (No. 7634 of 2001). Part 3 also effects
removal of the pay-roll tax exemption currently available to
employers in respect of wages paid or payable to apprentices or
trainees.
[23]. Deals with the phased abolition of the
current exemption from pay-roll tax for wages paid to apprentices or
trainees.
The Committee makes no further comment.
Travel Agents (Amendment) Bill
Introduced: 30 April 2003
Second Reading Speech: 1 May 2003
House: Legislative Council
Minister introducing Bill: Hon. J. Lenders MLC
Portfolio responsibility: Minister for Consumer Affairs
Purpose
The Bill amends the Travel Agents Act 1986
(the ‘Act’) to enable the compensation scheme trustees to sue and be
sued in the name of the Travel Compensation Fund (the ‘Fund’) and to
vary the process for the review of decisions of the trustees of the
Fund relating to the payment of compensation.
Content and Committee comment
[Clauses]
[2]. Other than sections 5 and 7 the
provisions commence on the day after Royal Assent. Sections 5 and 7
commence on proclamation but not later than 1 July 2004.
[3]. Inserts a definition of “trust deed” to
mean the trust deed of 12 December 1986 (as amended from time to
time). This trust deed establishes a compensation scheme that is the
approved compensation scheme for the purposes of the Act.
[4]. Inserts new section 45A to provide that
the compensation scheme trustees may sue and be sued in the name of
the “Travel Compensation Fund” and that in any proceedings brought
by the trustees in that name it is to be presumed, unless proved to
the contrary, that there has been compliance with any requirements
of the trust deed relating to the bringing of proceedings.
[5]. Inserts a new section 46B to provide
for a new review process. The new section provides that a person
whose interests are affected by a decision of the compensation
scheme trustees relating to the payment of compensation under clause
15.1 of the trust deed may apply to the Victorian Civil and
Administrative Tribunal for a review of that decision. Currently an
appeal is determined by an Appeal Committee established under the
trust deed. This new section also provides for the time within which
review can be sought.
The Committee makes no further comment.
Victims of Crime Assistance (Miscellaneous Amendments) Bill
Introduced: 29 April 2003
Second Reading Speech: 1 May 2003
House: Legislative Assembly
Minister introducing Bill: Hon. R. Hulls MLA
Portfolio responsibility: Attorney-General
Purpose
The Bill amends the Victims of Crime
Assistance Act 1996 to –
-
remove restrictions on making interim awards
and provide that some may be made at registrar level;
-
widen the circumstances in which childhood
victims of sexual assault may be awarded special financial assistance;
-
enable the Tribunal to determine a matter
without a hearing in certain circumstances;
-
empower the Chief Magistrate to make
guidelines in relation to non-procedural matters;
-
provide, in certain circumstances, that
primary and secondary victims can be treated as suffering an injury on
psychological evidence; and
-
make possible the assignment to the State by
a person of their right to sue for damages or compensation after an
award of assistance is made to them.
Content and Committee comment
[Clauses]
[2]. The amendments (other than sections 5(1)
and 5(2)) will commence on Royal Assent. Sections 5(1) and 5(2) come
into operation on proclamation but not later than 1 January 2004.
[4]. Amends the definition of people suffering
a “deemed injury” in section 3(2) of the Act to include people who
need treatment or counselling as demonstrated by psychological
evidence.
Interim awards
[5]. Amends section 24 to allow the Chief
Magistrate to delegate to registrars the power to make an interim
award not exceeding a prescribed amount which will be detailed in
regulations.
The clause also amends section 56 relating to
an interim award and provides a discretion to the Tribunal that where
an application is subsequently dismissed the amount of an interim
award, if one has been made, may become a debt due to the State by the
applicant.
Determining application without a hearing
[6]. Amends section 33 to further clarify the
circumstances in which the Tribunal may determine an application, or
make a decision in relation to an application, in certain
circumstances without conducting a hearing. An interim award may now
be made without a hearing unless the Tribunal considers a hearing is
necessary.
Childhood victims of sexual assault
[9]. Amends section 77 to expand the range of
circumstances in which childhood victims of sexual assault may make an
application for special financial assistance.
The Committee notes the comments in the Second
Reading Speech –
This criteria has unintentionally excluded
certain childhood victims who were intended to come within the scheme,
but who fell outside of it because the perpetrator of the offence was
dealt with summarily, rather than by trial, or died prior to summary
determination.
[10]. The amendments made by [9] applies to
any proceedings in the Tribunal on or after the commencement of the
amendments regardless of when the application was made.
The Committee makes no further comment.
Victorian Urban Development Authority Bill
Introduced: 29 April 2003
Second Reading Speech: 1 May 2003
House: Legislative Assembly
Minister introducing Bill: Hon. P. Batchelor MLA
Portfolio responsibility: Minister for Major Projects
Purpose
The Bill establishes
the Victorian Urban Development Authority (the ‘Authority’) to carry
out urban development, develop the Docklands area, to undertake declared
projects and to assist in the implementation of government urban development
policies and strategies (including Melbourne 2030).
The Bill merges
the Docklands Authority and the Urban and Regional Land Corporation
(‘URLC’) into the Authority, which will take over the functions of
both bodies.
Content and
Committee comment
[Clauses]
[2]. The Act
comes into operation on proclamation but not later than 1 July 2004.
[5 to 10].
Establishes the Authority to be known as the Victorian Urban
Development Authority, with the usual body corporate powers and
status and provides for its powers and functions. The Authority may
trade as ‘VicUrban’.
[11]. Gives
the Authority power to delegate its functions, powers and duties to
specified persons (Directors and staff of the Authority and other
persons with the Minister’s approval) but excludes the power to
delegate and certain other powers to set charges or levies under the
Act and the Docklands Act 1991, which remain reserve powers for the
Authority only.
[16]. The
Authority may employ staff.
[17 to 33].
Establishes the board of directors of the Authority and sets out its
constitution, CEO and deals with other like matters.
Acquisition
of land by agreement or compulsory process
[40]. The
Crown may grant land to the Authority.
[41].
Provides that the Authority may acquire by agreement, an interest in
land on any terms that the Authority considers appropriate (in cases
of acquisition of value over $5,000,000 the Minister and the
Treasurer must approve). An interest in land acquired under this
clause vests in the Crown.
[42]. The
Authority may compulsorily acquire land for the purposes of a
declared project, with the approval of the Minister administering
the Planning and Environment Act 1987. If the value of the interest
to be acquired exceeds $5,000,000, the Authority must also obtain
the approval of the Treasurer.
The
provisions of the Land Acquisition and Compensation Act 1989 apply
to the determination of compensation payable.
Compensation for legal and equitable interests
[43].
Provides for compensation on surrender or divesting of land of
public statutory bodies to the Crown under clause 39. Compensation
is payable to a person (other than a public statutory body) who
immediately before the divesting or surrender of the land had a
legal or equitable estate or interest in that land. The relevant
provisions of the Land Acquisition and Compensation Act 1989
apply to the determination of compensation payable under this
clause.
[46].
Empowers a person authorised by the Authority to enter land in the
project area for the purpose of carrying out surveys or
investigations connected with the development of the project area,
or doing anything, on the Authority's behalf, that the Authority is
authorised to do in carrying out its functions and powers.
[50]. The
Authority may, with the prior approval of the Governor in Council,
levy charges in the project area including charges for the supply of
telecommunications and other services provided by or by agreement
with the Authority.
[79].
Provides a general regulation making power to give effect to the
purposes of the Act.
[82]. Sets
out transitional arrangements for staff of the Docklands Authority.
On the commencement of this Bill, employees of the Docklands
Authority are deemed to be employees of the Authority on the same
terms and conditions.
[86]. Sets
out transitional arrangements for staff of URLC. On the commencement
of this Bill, employees of URLC are deemed to be employees of the
Authority on the same terms and conditions.
[90]. Repeals
the Urban and Regional Land Corporation Act 1997.
[91]. Amends
the title to the Docklands Authority Act 1991 by omitting
“Authority”.
The Committee
makes no further comment.
Scrutiny
of Acts and Regulations Committee
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