Alert Digest No. 5 of 2003Tuesday, 26 August 2003<Back to Table of Contents>Commonwealth Games Arrangements (Governance) BillIntroduced: 3 June 2003 PurposeThe Bill amends the Commonwealth Games Arrangements Act 2001 (the ‘Act’) and establishes the Melbourne 2006 Commonwealth Games Corporation (the ‘Corporation’) and provides for its powers and functions. It further provides for various matters relating to commercial arrangements and the use of logos and insignia for the Commonwealth Games and events and programs associated with the Commonwealth Games. Content and Committee comment[Clauses] [2]. The Act comes into operation on proclamation but not later than 1 July 2004. [6]. Inserts new section 4A to provide that the Act is to have extraterritorial operation so far as the legislative power of the Victorian Parliament permits. [7]. Inserts new Part 1A to provide for the establishment of the Corporation as a body corporate and sets out its functions and powers and governance arrangements. (new sections) 4C. Establishes the Melbourne 2006 Commonwealth Games Corporation as a body corporate with perpetual succession and the other attributes of a body corporate. It also provides for the use and recognition of the official seal of the Corporation. 4H. Provides for the Corporation, by instrument under its official seal, to delegate to a director, the chief executive officer, an officer or an employee of the Corporation any power of the Corporation, other than the power of delegation. 4Q. Provides that the powers of the Corporation do not include a power to exempt a director from, or to indemnify a director against, any liability that would otherwise attach to the director in respect of a wilful breach of duty or wilful breach of trust in relation to the Corporation. It also provides that the Corporation's powers do not include a power to pay a premium in respect of a contract of insurance insuring a director against any liability (other than one for legal costs) that would otherwise attach to the director in respect of a wilful breach of duty or wilful breach of trust. 4S. Provides that a director of the Board is not personally liable for anything necessarily or reasonably done or omitted to be done in good faith in the exercise of a power or the performance of a function or duty under the Act or the regulations, or in the reasonable belief that an act or omission was in the exercise of such a power or the performance of such a function or duty. Liability attaches instead to the Corporation. [8]. Inserts a new Part 1B dealing with the transfer of all of the property, rights, assets and liabilities of the Corporation and also for the transfer of the chief executive officer and the other officers and employees of the Corporation. Staff are to be transferred on save terms and conditions as previously employed. [9]. Inserts a new Schedule 2 setting out the detailed provisions relating to the membership and procedure of the Board of the Corporation. It deals with the terms of appointment of the directors of the Board, the appointment of the Chairperson and Deputy Chairperson and other like matters. [12]. Inserts new Part 5A into the Act. New section 56A provides that Part 5A does not derogate from any other rights available to any person under any other law or contract or agreement in relation to Games related indicia or images, ACGA indicia or images, CGF indicia or images or other indicia or images. New section 56C provides that Part 5A does not affect existing rights in respect to preventing the passing off by a person of another person's indicia or images in relation to goods and services as the first mentioned person's own. New section 56D provides the Corporation with the power to authorise in writing a person to use Games related indicia or images. New section 56E provides AGCA with the power to authorise in writing the use of ACGA indicia or images. New section 56F provides CGF with the power to authorise in writing the use of CGF indicia or images. New section 56L makes it an offence to engage in conduct which would suggest to a reasonable person that goods, persons or services have a sponsorship, approval or affiliation with Commonwealth Games, the Corporation, the Australian Commonwealth Games Team, ACGA or CGF that they do not actually have. New section 56M makes it an offence to use Games related indicia or images or any thing that is substantially identical to or deceptively similar to Games related indicia or images for commercial, promotional or advertising purposes or if the use would suggest a sponsorship-like arrangement to a reasonable person without authorisation. New section 56N makes it an offence to use ACGA indicia or images or any thing that is substantially identical to or deceptively similar to ACGA indicia or images for commercial, promotional or advertising purposes or if the use would suggest to a reasonable person a sponsorship-like arrangement without authorisation. New section 56O makes it an offence to use CGF indicia or images or any thing that is substantially identical to or deceptively similar to CGF indicia or images for commercial, promotional or advertising purposes or if the use would suggest to a reasonable person a sponsorship-like arrangement without authorisation. New section 56P(1) provides that authorised applicants may apply to the Magistrates' Court to grant an injunction restraining a person from engaging in conduct that contravenes section 56L, 56M, 56N or 56O. New section 56R provides that the court may require corrective advertising if the court is satisfied that on the balance of probabilities there has been a contravention of section 56L or 56M or 56N or 56O. New section 56S provides for the Corporation or any person authorised to use Games related indicia or images, in relation to a contravention of the relevant offence sections or ACGA in relation to a contravention relating to ACGA indicia or images or CGF in relation to a contravention of the relevant offence sections relating to CGF indicia or images to recover the amount lost or recover damages against any person involved in the contravention. New section 56V provides for a member of the police force to seize goods or advertising material which use or are marked with unauthorised indicia or images. New section 56W requires the police who seize goods or advertising material to give the goods or material to the Office of Commonwealth Games Coordination in the Department for Victorian Communities and new section 56X provides persons from whom goods or advertising material were seized with the option of voluntarily forfeiting those goods or material to the Crown. New section 56Y provides for recovery of seized goods or advertising material and compensation where persons have not voluntarily forfeited the goods or advertising material and either a person has not been found guilty of an offence under section 56L, 56M, 56N or 56O, or proceedings have not been instituted against a person within 6 months of the seizure. Compensation may be payable by the Corporation, ACGA or CGF as appropriate if the Court so orders. [13]. Substitutes section 57 of the Act with a new section 57 providing further regulation-making powers for the purposes of additional Games logos, insignia, mascots, pictograms or any other Commonwealth Games indicia or images that refer to or represent the Commonwealth Games and also provides more general powers for making regulations. [14]. Amends section 58 to fix an expiry date of 31 December 2006 for Parts 1A, 1B and 5A and Schedules 2, 3 and 4 of the Act as amended by the Bill. [15]. Inserts new Schedules 3 and 4 at the end of the Act setting out the various logos of the Corporation, ACGA and CGF. The Committee makes no further comment. |
In Stephens v Melis (June 2002) the Supreme Court of Victoria held that an intervention order made solely on the basis of consent, without hearing any evidence from the parties may be invalid and therefore unenforceable. The decision has therefore cast doubt on the validity of past consent orders and the enforceability of breaches of such orders. |
Section 85 Report to the Parliament pursuant to section 4D(b)(i) and (ii) of the Parliamentary Committees Act 1968 concerning a repeal alteration or variation of section 85 of the Constitution Act 1975 (limitation of the jurisdiction of the Supreme Court)
[5]. Inserts a new section 25B(2) which declares that it is the intention of new section 25AB(1) to alter or vary section 85 of the Constitution Act 1975.
New section 25B(2) is necessary as the Bill validates existing intervention orders and removes an avenue of appeal that was potentially available to recipients of intervention orders who were convicted of a breach of that order before the commencement of the amendments made by the Bill.
The Committee notes the section 85 statement in the Second Reading Speech –
Defendants who, before the commencement of this Bill, may have been able to appeal to the Supreme Court against a conviction for a breach of an intervention order on the grounds that the intervention order was made solely on the consent of the parties and is therefore invalid, will no longer be able to appeal on that ground after the commencement of this Bill.
This limitation is necessary in order to ensure that all existing intervention orders that were made before the commencement of this Act on the basis of the parties' consent will, in the event of a breach of that order, not be invalid merely because of the way in which they were made. This protection needs to apply from the time the order was made regardless of when the order may have been breached.
Without this provision, those who are protected by intervention orders face the risk that, if there has already been a breach of the order, on an appeal against a conviction for that breach the order could be ruled to be invalid on the grounds that it was made based on the consent of the parties.
| The Committee has examined the proposed section 85 of the Constitution Act 1975 clause and notes the Minister’s statement in the Second Reading Speech and accepts that the provisions are consistent with the purposes of the Bill. |
The Committee makes no further comment.
Crimes (Stalking) Bill
Introduced: 25 March 2003
Second Reading Speech: 27 March 2003
Bill divided*: 4 June 2003
House: Legislative Assembly
Minister introducing Bill: Hon. R. Hulls MLA
Portfolio responsibility: Attorney-General
* The Bill as introduced was entitled Crimes (Stalking and Family Violence) Bill. The Committee reported on the original Bill in Alert Digest No.1 of 2003.
Purpose
The Bill amends the Crimes Act 1958 (the ‘Act’) with respect to the offence of stalking to ensure –
- the offence covers cyberstalking;
- the offence no longer requires proof as to the actual effect on the victim of the course of conduct engaged in by the offender; and
- the offence has extra-territorial operation.
Content and Committee comment
[Clauses]
[2]. The provisions in the Bill come into operation on the day after Royal Assent.
[3]. Extends the definition of ‘course of conduct’ to ensure that it covers cyberstalking.
[4]. Amends section 21A(2) and (3) by removing the requirement that a course of conduct that may constitute stalking must result in physical or mental harm to the victim or apprehension or fear in the victim for his or her safety.
The Committee notes the comments in the Second Reading Speech –
The Bill will amend the current definition of stalking to remove the requirement that the victim actually be harmed or experience apprehension or fear. The offence of stalking should focus on the behaviour of the offender rather than the response of the victim. The evil in the offence is in the actual stalking.
The intention on the part of the offender to cause fear, or the fact that the offender ought to have understood that their target would be frightened, is the key factor that should make the behaviour criminal. The fact that a target of stalking is unaware or is not easily frightened should not prevent prosecution of the offence.
Undue trespass to rights or freedoms – Parliamentary Committees Act 1968 In respect to the removal of the element of the offence requiring actual harm to be proven the Committee notes the relevant extract in the Second Reading Speech above.
The Committee received an interim response from the Attorney-General on 17 April 2003 informing the Committee that he is seeking further advice before responding to the Committee in respect to clauses 3 and 4 of the Bill. The Committee draws attention to the provision. |
[5]. Inserts new subsections (6) and (7) in section 21A to give the offence of stalking extra-territorial operation. As a result of this clause, section 21A will apply to a person overseas or interstate who stalks a victim in Victoria and a person in Victoria who stalks a victim overseas or interstate.
[6]. Inserts a new section 598 to provide that the amending Act only applies to offences alleged to have been committed on or after the commencement of the amending Act.
The clause also provides that the parties involved in the case of DPP v. Sutcliffe (currently listed for hearing by the Court of Appeal) which involves the interpretation of whether section 21A(2) has extra-territorial operation are not to be prejudiced by the amendments made by this Bill.
The Committee makes no further comment.
National Environment Protection Council (Victoria)(Amendment) Bill
Introduced: 3 June 2003
Second Reading Speech: 5 June 2003
House: Legislative Assembly
Minister introducing Bill: Hon. J. Thwaites MLA
Portfolio responsibility: Minister for Environment
Purpose
The Bill amends the National Environment Protection Council (Victoria) Act 1995 –
- to provide a mechanism to allow minor variations to national environment protection measures without resort to the procedures contained in section 20 of the Act; and
- to introduce 5 yearly reviews of the Act; and
- to ensure that the National Environment Protection Council Service Corporation is able to provide secretariat services to the joint meetings of the National Environment Protection Council and the Environment Protection and Heritage Council.
Content and Committee comment
[Clauses]
[2]. The amendments in the Bill come into operation the day after Royal Assent.
[7]. Inserts a new Division 2A – ‘Minor variation of national environment protection measures’, into the Principal Act. This Division provides for the making of minor variations to national environment protection measures by the Council and contains the procedures the Council must follow when making a minor variation.
[10]. Inserts additional sections 64(3) and 64(4) which provide for the Act to be reviewed at 5 yearly intervals after the first 5 year review and for the report of each further review to be tabled in Parliament within 1 year after the end of the period to which it relates.
The Committee makes no further comment.
Supreme Court (Vexatious Litigants) Bill
Introduced: 3 June 2003
Second Reading Speech: 5 June 2003
House: Legislative Assembly
Minister introducing Bill: Hon. R. Hulls MLA
Portfolio responsibility: Attorney-General
Purpose
The Bill amends section 21 of the Supreme Court Act 1986 (the ‘Act’) to clarify the power of the Supreme Court to declare a person to be a vexatious litigant.
Content and Committee comment
[Clauses]
[2]. The amendments in the Bill come into operation the day after Royal Assent.
[3]. Amends section 21 of the Act to ensure that the Supreme Court is able to take civil and criminal proceedings into account when considering whether to make an order declaring a person to be a vexatious litigant. Clause 3 also enables the Court to take civil and criminal proceedings instituted prior to the commencement of the Bill into account when considering whether to make an order declaring a person to be a vexatious litigant.
The Committee makes no further comment.
Victorian Industry Participation Policy Bill
Introduced: 3 June 2003
Second Reading Speech: 5 June 2003
House: Legislative Assembly
Minister introducing Bill: Hon. J. Brumby MLA
Portfolio responsibility: Minister for State and Regional Development
Purpose
The purpose of the Bill is to provide for the development and implementation of a Victorian Industry Participation Policy (‘VIPP’) and require reports to Parliament on the policy's implementation and government agencies' compliance with it.
Content and Committee comment
[Clauses]
[2]. Provides for the Bill to come into operation on proclamation, but no later than 1 January 2004
[4]. Requires the Government to develop and implement the VIPP and notes that the detail of it may be contained in separate guidelines.
[5]. Sets out the objectives of the VIPP, which include the promotion of employment and business growth, increased access to, and raised awareness of, local suppliers, exposing local businesses to world's best practice and developing local industry's international competitiveness.
[8]. Specifies that the VIPP (including the guidelines) must be published in hard copy and electronic form and must be freely available.
[9]. Outlines the requirement for each agency to include in its report of operations the agency's compliance with the VIPP in the financial year and allows details of reporting requirements to be contained in directions issued under section 8 of the Financial Management Act 1994.
[10]. Provides for the Minister to report to Parliament before 30 November each year on the implementation of the VIPP in the previous financial year.
[11]. Requires agencies to provide the Minister with information so that the Minister can comply with clause 10.
The Committee makes no further comment.
Scrutiny
of Acts and Regulations Committee
©
Parliament of Victoria