Alert Digest No. 7 of 2003

Tuesday, 7 October 2003

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Education Legislation (Miscellaneous Amendments) Bill

Introduced: 17 September 2003
Second Reading Speech: 18 September 2003
House: Legislative Assembly
Minister introducing Bill: Hon. Lynne Kosky MLA
Portfolio responsibility: Minister for Education and Training

Purpose

The Bill amends the Children and Young Persons Act 1989, the Education Act 1958, the Teaching Service Act 1981 and the Victorian Institute of Teaching Act 2001.

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

The Bill implements a range of important measures to address anomalies in existing legislation; to remove outmoded provisions; to strengthen existing provisions disqualifying teachers convicted or found guilty of sexual offences from teaching in schools; improving the auditing of state schools, and other miscellaneous amendments.

Submission received

The Committee notes that a late submission in respect to this Bill was received from the Office of the Victorian Privacy Commissioner. The submission is reproduced for Members information in Appendix 4.

Content and Committee comment

[Clauses]

[2]. The Bill comes into operation on the day after it receives the Royal Assent.

Delegation powers

[4]. Substitutes and broadens existing delegation powers in sections 4, 5A and 8 of the Education Act 1958 (the ‘Act’).

Amendment to section 4(12) of the Act will permit the Secretary to delegate to any person any power or function of the Secretary under that Act, except the Secretary's power of delegation, and the Secretary's current delegation power under section 5A (which authorises the Secretary to delegate powers to school councils concerning certain school staff).

Amendment to section 8(1) of the Act will permit the Minister to delegate to any person any power or function of the Minister under that Act, except the Minister's power to issue guidelines or give directions to school councils, the Minister's power of delegation, and the Minister's power to compulsorily acquire property for school purposes and to acquire or dispose of property for preschools.

In respect to the wide delegation powers the Committee notes this extract from the Minister’s Second Reading Speech –

Secondly, the Bill will update the delegation sections in the Teaching Service Act 1981 and Education Act 1958. These sections enable the Secretary and Minister to delegate powers and functions under those acts.

It has long been an accepted principle of management that government could not operate efficiently unless Ministers and Secretaries are able to delegate their various powers and functions, with ministers being answerable to Parliament on those delegations.

The current delegation powers of the Secretary and Minister under the Teaching Service Act 1981 and Education Act 1958 only enable delegations to 'officers and employees', or 'professional officers, teachers or other officers', or 'persons employed in the administration of the act', or 'persons employed in the administration or execution of the act'.

The changes are being sought so as to provide consistency in the various delegation sections; overcome the difficulties caused by the interpretation of words such as 'administration or execution', and to widen the scope of the power to allow delegations to persons other than persons already 'employed' in the administration of the act. As examples, the changes will –

(i) Clarify that the Minister for Education and Training could delegate powers to another minister or parliamentary secretary, or other person as appropriate.

(ii) Enable the secretary to delegate discipline and other powers to experts, such as retired judges or retired tribunal members, to hear discipline matters and make recommendations to him, or for other appropriate matters.

Limitations are inserted in the Bill so that neither the regulation-making power nor the compulsory acquisitions power can be delegated. The Bill also prevents the delegate from being able to further sub delegate the same power.

Makes rights, freedoms or obligations dependent upon insufficiently defined administrative powers – section 4D(a)(ii) Parliamentary Committees Act 1968.

Clauses 4 and 13

The Committee notes that the amendments sought to be made by clause 4 to sections 4 and 8 of the Education Act 1958 and by clause 13 amending sections 76 and 77 of the Teaching Service Act 1981 may constitute insufficiently defined administrative powers. The Committee notes the extract from the Minister’s Second Reading Speech concerning these delegations.

The Committee notes that the delegations have some limitations as to important discretions vested in the Secretary and the Minister but nevertheless notes that they are wide delegation powers compared with the more defined in the sections they are proposed to substitute.

The Committee will seek further advice from the Minister concerning the need for such wide delegation powers.

The Committee draws Parliaments attention to the amendments.

Mandatory dismissal of teachers with convictions for past sex offence – Education Act 1958. s.15B(6), and the Teaching Services Act 1981, s.9(9).

Prohibition of employment of persons with convictions for sex offences as teachers – Education Act 1958, s.15B(4) and the Teaching Services Act 1981, ss.9(2A), 65A.

[5]. Amends section 15B of the Education Act 1958 to provide that, unless exempted by the Secretary, a person convicted or found guilty of a sexual offence against a child is not eligible for employment as a teacher by a school council and that the school council must dismiss any such person already employed or engaged. It also provides that a person is not eligible for employment as a teacher unless registered or permitted to teach by the Victorian Institute of Teaching; and that an unregistered teacher can be suspended without pay or dismissed; and if unregistered for 12 months is automatically dismissed unless on approved leave during that period.

[6]. Inserts a new section 15BAA in the Education Act 1958 to enable a person employed by a State school council as a teacher who has been convicted or found guilty of a sexual offence against a child to apply to the Secretary for an exemption against disqualification from employment or from dismissal.

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

(i) The Bill will amend the Teaching Service Act 1981 and the Education Act 1958 to state that a person convicted of a sexual offence against a child is, irrespective of the date of the conviction, ineligible for employment in the teaching service, and to state that the secretary, or if employed by a school council then the school council, must terminate the employment of any teacher so convicted. The main change this implements is that the provision is retrospective to cover any such conviction, irrespective of when it occurred, and makes a dismissal mandatory.

(ii) Next the Bill will amend the Victorian Institute of Teaching Act 2001 to provide that a person convicted of a sexual offence against a child is, irrespective of the date of the conviction, disqualified from being registered with the Victorian Institute of Teaching. As the act presently provides that a person must be registered with the Victorian Institute of Teaching before they can teach in a school, this amendment will prevent such teachers being employed in schools. Again, the main change this implements is that the provision is retrospective to cover any such conviction, irrespective of when it occurred.

…

(iv) The Secretary, in respect of employment in the teaching service, and the Victorian Institute of Teaching in respect of registration with it, will have the right to grant an exemption to a teacher who is disqualified owing to a conviction for a sexual offence against a child.

I would like to make it very clear that this power to grant an exemption is expected to be used very sparingly, and the only situation that the government can presently envisage in which it might be used is in the case of a person who before they became a teacher, had at say the age of 18 or 19, a consensual relationship with a 15-year-old. That technically would be an offence, but extenuating and subsequent circumstances (for example the subsequent marriage or cohabitation of the parties), might justify granting an exemption.

Retrospective application of laws – future application based on past events

Clauses 5, 11 and 12

The Committee notes the Minister’s comments in respect to the retrospective application of the amendments concerning the future employment or registration of persons as teachers or the continued employment of existing teachers who have prior convictions for sex offences against children.
The Committee notes that in respect to retrospective laws there is a distinction to be made between legislation having a prior effect on past events and legislation basing future action on past events. The former form of legislation may be regarded as objectionable and may constitute, in appropriate circumstances, a trespass to rights and freedoms, whereas in the latter case the legislation has future operation only, even if the conduct on which it depended had taken place in the past. On point concerning this distinction the Committee notes – Robertson v. City of Nunawading [1973] VR 819 at 824, and Re a Solicitor’s Clerk [1957] 1 WLR 1219.

The Committee notes that these provisions were earlier introduced into the Victorian Parliament in the Education and Training Legislation (Miscellaneous Amendments) Bill* in October 2002.

*The Bill lapsed with the Victorian elections called in November 2002.

[11]. Amends sections 5 and 9 of the Teaching Service Act 1981 to provide that a person is not eligible for appointment to the teaching service or as a temporary teacher if the person has ever been convicted or found guilty of sexual offence against a child (unless exempted by the Secretary).

Section 9 is amended to provide that the Secretary must dismiss any temporary teacher (unless exempted by the Secretary) convicted or found guilty of a sexual offence against a child, and that an unregistered teacher can be suspended without pay or dismissed, and if unregistered for 12 months is automatically dismissed unless on approved leave during that period. (Refer to notes and extract of Second reading Speech under clauses 5 and 6 above).

[12]. Inserts a new Part IVA dealing with dismissal and suspension of teachers in the teaching service and provides that the Secretary must dismiss any teacher convicted or found guilty (unless exempted by the Secretary) of a sexual offence against a child.

In respect of permanent teachers, it provides that an unregistered teacher can be suspended without pay by the Secretary, and that the teacher is automatically dismissed if he or she remains unregistered for 12 months unless on approved leave during that period. (Refer to notes and extract of Second reading Speech under clauses 5 and 6 above).

[13]. Substitutes and broadens existing delegation powers in sections 76 and 77 of the Teaching Service Act 1981 –

76. Minister may delegate powers

The Minister by instrument may delegate any of his or her powers or functions under this Act to any person, except this power of delegation and the power to make regulations under section 78.

77. Secretary may delegate powers

The Secretary by instrument may delegate any of his or her powers or functions under this Act to any person, except this power of delegation.

(Refer to comment and Second Reading Speech under clause 4).

Disqualification from teaching

[14]. Amends section 25 of the Victorian Institute of Teaching Act 2001, to provide that a person convicted or found guilty of a sexual offence against a child is automatically disqualified from teaching in a school, unless exempted by the Victorian Institute of Teaching, and in the case of a State school teacher, also exempted by the Secretary to the Department of Education and Training.

The clause also replaces section 25(7) of the Victorian Institute of Teaching Act 2001 which currently provides that teachers convicted or found guilty after specified dates of a sexual offence against children are automatically deregistered. The particular date is 21 April 1998 for teachers currently registered with the Registered Schools Board and 31 December 2002 for State school teachers. The new section 25(7) has the effect that teachers are to be deregistered irrespective of the date of the conviction or finding of guilt.

Exemption from disqualification

[15]. Inserts a new section 51A in the Victorian Institute of Teaching Act 2002 to authorise the Victorian Institute of Teaching to grant an exemption to a person against the automatic disqualification from teaching for having been convicted or found guilty of a sexual offence against a child.

Review by VCAT – Appeal from decision

[16]. Amends section 52 of the Victorian Institute of Teaching Act 2001 to provide a right of review to the Victorian Civil and Administrative Tribunal against a decision by the Victorian Institute of Teaching to exempt or not exempt a person from disqualification from teaching.

[17]. Inserts new sections 27(2A) and (2B) in the Victorian Institute of Teaching Act 2001 to require the employer of a registered teacher and the Chief Commissioner of Police to immediately notify the Victorian Institute of Teaching if they become aware that a registered teacher has been charged with or committed for trial for a sexual offence against a child or convicted or found guilty of such an offence.

The Committee makes no further comment.

Education (Workplace Learning) Bill

Introduced: 16 September 2003
Second Reading Speech: 17 September 2003
House: Legislative Assembly
Minister introducing Bill: Hon. Lynne Kosky MLA
Portfolio responsibility: Minister for Education and Training

Purpose

The Bill amends the Education Act 1958 (the ‘Act’) to make further provision for learning in the workplace.

Submission received

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill commence operation on 1 January 2004.

[7]. Inserts a new section 64LD(2)(ab) that requires a pupil to undertake training in occupational health and safety before a structured work place learning arrangement can be entered into.

[8]. Amends section 64M(1)(a) of the Act to provide that any Act or law relating to the prohibition or regulation of the employment of children does not apply to a work experience arrangement made for a pupil who is of or over 14 years of age.

[11]. Substitutes a new section 64O in the Act to provide that no action will lie against a principal, head teacher, teacher or the school for breach of a duty that would otherwise be owed to a pupil of a school while the pupil is employed under a work experience arrangement, a structured workplace learning arrangement or a training agreement under the Vocational Education Act 1990. (Also refer to section 85 Constitution Act 1975 report below).

Ministerial Orders – criminal records of employers and supervisors to be given to school principals

[13]. Inserts in section 64S(2) of the Act additional matters where the Minister has power to make Orders for work experience pupils including, requiring that before a principal makes a work experience arrangement for a pupil who is under the age of 15 years a criminal record check must be provided to the principal or head teacher by an employer or any person who will have direct supervision of a child.

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

The Committee notes that the amendments to be made by clause 4 of the Education Legislation (Miscellaneous Amendments) Bill will permit the Minister to delegate to any person powers other than the power of delegation, the power to give directions or issue guidelines and powers under sections 19A and 68 in respect to compulsory acquisition and disposal of land. The Committee notes that section 64S permits the Minister to make Orders and that the amended section 64S(2) will permit, amongst other matters Orders to be made in respect to criminal records to be provided to school principals and head teachers.

The Committee notes that it has also made comments about the wide delegation provision sought to be introduced by that other Bill earlier in this Alert Digest.

The Committee will seek further clarification from the Minister whether it is intended to permit powers to make Orders to be included in the wide delegation provision or whether, under the particular circumstances where sensitive private information is divulged to third persons the power to make Orders ought more properly be one of the excluded powers, such as the powers to give directions or issue guidelines.

Unduly requires or authorises acts or practices that may have an adverse effect on personal privacy within the meaning of the Information Privacy Act 2000 – section 4D(a)(iiia), Parliamentary Committees Act 1968.

The Committee notes that when the Information Privacy Act 2000 was enacted it contained an amendment (section 76) to the Subordinate Legislation Act 1994 (new section 21(1)(ga)) to enable the Committee to scrutinise and report on statutory rules that unduly require or authorise acts or practices that may have an adverse effect on personal privacy within the meaning of the Information Privacy Act 2000. The Committee was also given additional terms of reference (section 4D(a)(iiia )) to report on Bills that unduly require or authorise acts or practices that may have an adverse effect on personal privacy within the meaning of the Information Privacy Act 2000.

The Committee notes that Ministerial Orders are not within the definition of ‘statutory rule’ for the purposes of the Subordinate Legislation Act 1994 and therefore Ministerial Orders (that may be delegated under new section 8(1)) may authorise or require acts or practices that may be in breach of the Information Privacy Act 2000 without the Committee being able to report on such acts or practices. It therefore appears to the Committee that such Ministerial Orders would escape any form of parliamentary scrutiny in circumstances where sensitive personal information may be transmitted stored and used in a large number of cases.

The Committee will seek further advice from the Minister whether it is an unintended consequence of the amendments made by the Bill that such Orders prescribing acts or practices in respect to personal privacy, are not subject to parliamentary scrutiny.

The Committee draws attention to the provisions.

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).

[14]. Inserts a new section 81A(3) in the Act declaring that it is the intention of the proposed new section 64O inserted by [11] to alter or vary section 85 of the Constitution Act 1975 to the extent necessary to prevent the bringing before the Supreme Court of an action of the kind referred to in section 64O.

The Committee notes the section 85 statement in the Minister’s Second Reading Speech –

Clause 11 of the Bill proposes to insert a new section 64O in the Education Act 1958 which has the effect that no action will lie against a school or the principal, head teacher or teacher of a school because of a breach of a duty relating to the care or control of a pupil of the school while the pupil is employed under a work experience arrangement, a structured workplace learning arrangement or a training agreement under the Vocational Education Act 1990.

The reason for the prevention of the bringing of such an action is that it is impossible for school staff to exercise effective supervision of a pupil while the pupil is working in accordance with an arrangement or agreement. In effect, that pupil is working in an employment situation under the supervision of the employer with whom the pupil is placed. The rights of pupils to compensation for work-related injuries in relation to a work experience arrangement or a structured workplace learning arrangement are adequately protected because they are deemed to be workers for the purposes of the Accident Compensation Act 1985 by the definition of 'worker' in section 5(1) of that Act.

In relation to a training agreement the pupil is employed by an employer under an industrial award or workplace agreement. The pupil is a 'worker' of that employer for the purposes of the Accident Compensation Act 1985.

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.

Mental Health (Amendment) Bill

Introduced: 16 September 2003
Second Reading Speech: 18 September 2003
House: Legislative Assembly
Minister introducing Bill: Hon. Bronwyn Pike MLA
Portfolio responsibility: Minister for Health

Purpose

The Bill amends the Mental Health Act 1986 to clarify and improve the operation of the provisions for involuntary patients and the making of community treatment orders and clarify and improve the operation of confidentiality provisions.

The Bill also amends the Coroners Act 1985 to ensure that the death of a patient who is not held in care is a reportable death.

Content and Committee comment

[Clauses]

[2]. Other than Part 2 (amendments relating to involuntary patients) the provisions in the Bill come into operation on the day after Royal Assent. The provisions of Part 2 come into operation on proclamation but not later than 1 January 2005.

[9]. Substitutes a new section 12 in the Act and inserts new sections 12AA to 12AE concerning involuntary treatment orders.

The new section 12 provides a new option for a mental health practitioner to examine the recommended person in the community. The mental health practitioner has 2 options under the new section 12(2). The practitioner may take the person, or arrange for the person to be taken, to an approved mental health service for the making of an involuntary treatment order in accordance with the new section 12AA. Alternatively, the mental health practitioner may make an involuntary treatment order for the person, and the person may stay in the community until he or she is examined by the authorised psychiatrist under the new section 12AC.

The new section 12AB is a re-enactment of the current section 12(1)(aa) except that it also applies where the involuntary treatment order is made by a mental health practitioner under the new section 12.

[12]. Substitutes a new section 14 in the Act which provides for the making of community treatment orders by the authorised psychiatrist for persons subject to involuntary treatment orders.

The new section 14A provides for the regular assessment of a person subject to a community treatment order by a supervising medical practitioner.

[18]. Inserts a new section 19A in the Act to require the authorised psychiatrist to prepare, regularly review and revise a treatment plan for each patient, whether the patient be an involuntary, security or forensic patient.

[19]. Makes minor amendments to provisions setting out the appeal and review functions of the Mental Health Review Board (the ‘Board’), and the related appeal rights of patients.

[22]. Inserts a new section 35A in the Act to require the Board to review the treatment plan for each patient when conducting any appeal or review under the Act.

[23]. Substitutes a new section 36 and inserts new sections 36A to 36E in the Act.

New section 36 sets out the powers of the Board on appeal or review in relation to a patient who is detained under an involuntary treatment order.

[24]. Substitutes a new section 37 in the Act setting out the powers of the authorised psychiatrist and chief psychiatrist to discharge involuntary patients.

[30]. Amends the secrecy provisions applying to the Mental Health Review Board and the Psychosurgery Review Board.

[33]. Inserts a new section 94A in the Act to allow the Secretary, by notice published in the Government Gazette, to declare relevant premises or a relevant service as an approved mental health service. The Secretary may only make such a declaration if he or she is satisfied that an emergency exists and it is impracticable in the circumstances for a proclamation of the premises or service as an approved mental health service to be made by the Governor in Council in accordance with section 94.

Confidentiality

[35]. Makes amendments to section 120A of the Act. Amongst other amendments the clause inserts a new section 120A(2B) which clarifies that section 120A applies only to the disclosure of information to parties outside the relevant psychiatric service, or outside the part of a larger entity that is a relevant psychiatric service. It clarifies that section 120A does not apply to communications between staff of the same relevant psychiatric service as these are now governed by Health Privacy Principle 2 of the Health Records Act 2001.

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

Section 120A of the Mental Health Act establishes a regime for the confidentiality of mental health information. The main purpose of section 120A is to prohibit the disclosure of client information by a relevant psychiatric service.

Following the commencement of the Health Records Act 2001 the government considers that section 120A should no longer apply to the 'use' of client information within a service. Instead the Health Records Act should regulate the 'use' of client information within a relevant psychiatric service. The Bill provides that the communication of health information by one employee of a relevant psychiatric service to another employee would be 'use' of information by the organisation and therefore subject only to the Health Records Act and not also potentially subject to section 120A. This applies to both electronic and paper-based records.

…

The Bill amends section 120A to clarify that the Secretary of the Department of Human Services may 'use' the information in RAPID if it is necessary for the performance of the duties, powers or functions of the secretary and it is done in accordance with the Health Records Act.

The amendments do not envisage unlimited use by the Secretary. They link the relevant provisions to health privacy principle 2 of the Health Records Act, which imposes strict limits on why and how an organisation can both use and disclose information.

…

Section 120A currently limits access to RAPID to persons employed by an approved mental health service, and to the Mental Health Review Board, the chief psychiatrist and the forensic leave panel. Community-based mental health staff regularly access information in RAPID to facilitate treatment to mental health clients. However, it is unclear whether community-based staff are employees of an approved mental health service for the purposes of section 120A.

The Bill provides that all the service elements of the public mental health service system - hospitals, clinics, mobile teams - can access information in RAPID for the purposes of providing treatment to public mental health clients.

The Committee accepts that the amendments made by the Bill appear not to unduly require or authorise acts or practices that may have an adverse effect on privacy of health information within the meaning of the Health records Act 2001.

[38]. Amends the definition of "reportable death" in the Coroners Act 1985. The death of a "person in care" is a reportable death.

The Committee makes no further comment.

Planning and Environment (Port of Melbourne) Bill

Introduced: 16 September 2003
Second Reading Speech: 18 September 2003
House: Legislative Assembly
Minister introducing Bill: Hon. Mary Delahunty MLA
Portfolio responsibility: Minister for Planning

Purpose

The Bill amends the Planning and Environment Act 1987 and the Planning and Environment (Planning Schemes) Act 1996 to facilitate planning for the Port of Melbourne and to provide for the preparation of a new planning scheme for the Port of Melbourne.

Content and Committee comment

[Clauses]

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

Amendment of Planning and Environment Act 1987

[3]. Inserts a new section 3(3) in the Act to provide for alteration of the boundaries of the Port of Melbourne area (the ‘area’) by order of the Governor in Council

[4]. Inserts new section 8(4) to prohibit a municipal council from preparing a planning scheme amendment relating to land within the Port of Melbourne Area.

[6 and 7]. Provide transitional provisions and deal with the situation where there are boundary changes made to the area under the new section 3(3). In that event things done under the previous planning scheme are not effected. However subsequent enforcement and administration is the responsibility of the applicable council (in the case of excluded land) or the Minister (in the case of included land).

Amendment of Planning and Environment (Planning Schemes) Act 1996

[9]. Inserts new section 18(3) to exempt any part of a municipal district that is within the Port of Melbourne Area from the requirement for a municipal council to prepare a planning scheme in respect of that part of its municipal district.

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)

[10]. Inserts new section 21(1A) to provide that the Minister for Planning may prepare a new planning scheme for the Port of Melbourne Area.

[11]. Inserts new section 27(2) into the Planning and Environment (Planning Schemes) Act 1996 and declares that it is the intention of section 22(2) of that Act, to the extent that it applies to a planning scheme for the Port of Melbourne Area prepared and approved by the Minister under new section 21(1A) of that Act, to alter or vary section 85 of the Constitution Act 1975. Section 22(2) protects planning schemes from challenges for invalidity and so limits the jurisdiction of the Supreme Court.

NOTES

Sections 21 and 22 of the Planning and Environment (Planning Schemes) Act 1996 provide –

21. Minister may prepare planning scheme

(1) The Minister may prepare and approve a planning scheme under this Part for any part of Victoria outside a municipal district.

(2) Subject to this Part, the Principal Act as amended by this Act and the regulations under the Principal Act apply to the preparation of a planning scheme under this section as if it were an amendment to a planning scheme and the Minister were the planning authority.

(3) Sections 96A to 96D do not apply in respect of a planning scheme prepared under this section.

22. Validity of schemes

(1) A planning scheme prepared under this Part and approved or purporting to have been approved is deemed to have been duly approved in accordance with all of the requirements of this Part and the Principal Act and to be valid and effective in all respects.

(2) A planning scheme referred to in sub-section (1) must not be called into question in any proceeding in any court or tribunal or in any proceeding by way of review under the Principal Act or this Part.

(3) Nothing in this section applies to an amendment to a planning scheme referred to in sub-section (1).

The Committee notes the section 85 statement in the Minister’s Second Reading Speech –

Section 22(2) of the Planning and Environment (Planning Schemes) Act 1996 provides that a planning scheme referred to in section 22(1) must not be called into question in any proceeding in any court or tribunal or in any proceeding by way of review under the Planning and Environment Act 1987 or part 3 of the Planning and Environment (Planning Schemes) Act 1996.

Section 22(1) of the Planning and Environment (Planning Schemes) Act 1996 provides that a planning scheme prepared and approved or purporting to have been approved under that act is deemed to have been duly approved in accordance with all of the requirements of part 3 of that act and the Planning and Environment Act 1987 and to be valid and effective in all respects.

The insertion of new section 21(1A) in the Planning and Environment (Planning Schemes) Act 1996 by clause 10 of this bill enables the minister to make a new planning scheme for the Port of Melbourne area. Section 22 of the Planning and Environment (Planning Schemes) Act 1996 is therefore extended to apply to the new planning scheme for the Port of Melbourne area.

The reasons for limiting the jurisdiction of the Supreme Court with respect to the exclusion of any challenge to the validity of the new planning scheme for the Port of Melbourne area are as follows.

Firstly, it is essential that there be no gap in planning controls during the transition from the existing planning schemes to the new planning scheme for the Port of Melbourne area. A successful challenge to the new scheme would leave such a gap and thus have serious ramifications for existing use rights and for general planning controls affecting the use and development of land. Prohibited uses could suddenly become lawful if a gap in planning controls existed, even if the gap was only for a short time. Other protective measures could become unenforceable. These potential outcomes must be avoided.

Secondly, any challenge to the new planning scheme for the Port of Melbourne area, even if ultimately unsuccessful, would create serious uncertainty in the development industry in relation to development in the Port area.

Thirdly, the new planning scheme for the Port of Melbourne area, like the other planning schemes made under the Planning and Environment (Planning Schemes) Act 1996, is to be based on a series of state standard provisions derived from the Victoria Planning Provisions. A challenge to this one scheme could therefore have adverse consequences for all other planning schemes in the state.

Fourthly, in considering the limitation on the ability to challenge a new planning scheme, it is important to note that, like other new planning schemes made under the Planning and Environment (Planning Schemes) Act 1996, it is probable that much of the content of the new planning scheme for the Port of Melbourne area will simply reflect existing planning scheme provisions, albeit in a new structure.

The new planning scheme for the Port of Melbourne area will be prepared by the minister and will follow the ordinary amendment process. There will be public exhibition, the opportunity for hearings of submissions by a panel, and proceedings will be able to be instituted to consider any defects in procedure before approval of the planning scheme.

Either House of Parliament also retains the power to revoke the new planning scheme for the Port of Melbourne area under section 38 of the Planning and Environment Act 1987.

Most importantly, the limitation of jurisdiction of the Supreme Court only relates to the initial approval of the new planning scheme for the Port of Melbourne area so as to give it a sound foundation in law. This is essential to the extent that this new planning scheme will form the basis for the assessment of major development and investment opportunities in the Port of Melbourne area, for protection of resources and the environment and for enforcement action to prevent any unlawful use or development of land.

Once the new planning scheme for the Port of Melbourne area is in place, any subsequent amendment of the scheme will be subject to the usual provisions of the Planning and Environment Act 1987.

In conclusion, members will see that this Bill is essentially about placing the Port of Melbourne area in a planning situation generally similar to that which applies to the rest of Victoria, while recognising the importance of taking an integrated approach to planning the land occupied by this vital element of Victoria's infrastructure.

The Committee makes no further comment.

Royal Botanic Gardens (Amendment) Bill

Introduced: 16 September 2003
Second Reading Speech: 17 September 2003
House: Legislative Assembly
Minister introducing Bill: Hon. John Thwaites MLA
Portfolio responsibility: Minister for Environment

Purpose

The Bill amends the Royal Botanic Gardens Act 1991 (the ‘Act’) to make further provision in relation to licensing and leasing of the botanic gardens; and in relation to the term of appointment of Board members; and the powers of authorised officers.

Content and Committee comment

[Clauses]

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

[7]. Amends section 24(2)(b) of the Act to extend the maximum term of a licence that can be issued by the Board from 5 to 10 years.

Powers of authorised officers to request name and address

[10]. Inserts new sections 50B and 50C into the Act.

New section 50B provides power to authorised officers to request names and addresses of those persons whom they believe, on reasonable grounds, to have committed offences under the Act or regulations. Before making the request the authorised officer must inform the person of the grounds for their belief. It also creates an offence for failing to provide a name and address in response to a lawful request. The penalty for failing to provide a name and address is 5 penalty units ($500).

If a person states a name and address that the officer suspects on reasonable grounds may be false the authorised officer may request the person to produce evidence of the correctness of the information provided. It is an offence to fail to comply with such a request. The penalty if 5 penalty units ($500).

New section 50C provides that it is a requirement that authorised officers identify themselves before exercising these powers and at any time on request by the person.

[15]. Substitutes Part 2 of Schedule 1 to the Act to insert a new plan of the Royal Botanic Gardens, Cranbourne.

The Committee makes no further comment.

Scots' Church Properties (Amendment) Bill

Introduced: 16 September 2003
Second Reading Speech: 18 September 2003
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibility: Private Act

Purpose

The Bill amends the Scots' Church Properties Act 1891 (the ‘Act’) to alter the operation of the Scots' Church trust deed in relation to certain lands.

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

The trustees of Scots Church, Melbourne have sought the introduction of this Bill to make certain alterations to the Scots' Church Properties Act 1891 and the trust deed under which they hold the property bounded by Collins, Russell and Little Collins Streets.

The trustees hold the property on trust for the congregation of Scots Church and the General Assembly of the Presbyterian Church of Victoria.

The trust deed is given statutory effect by the Scots' Church Properties Act 1891 and cannot be varied except by an Act of Parliament.

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill (except section 4) come into operation on Royal Assent. Section 4 comes into operation on the day after Royal Assent.

[4]. Inserts a new section 4A to provide for the variation of the trust deed as specified in the section.

[5]. Amends section 5 of the Act to remove a reference to the ‘sum of one shilling’ and substitutes in place the words ‘relevant fees’ to enable the Registrar-General to charge fees for inspection of the trust deed.

The Committee makes no further comment.

Victorian Qualifications Authority (Amendment) Bill

Introduced: 16 September 2003
Second Reading Speech: 17 September 2003
House: Legislative Assembly
Minister introducing Bill: Hon. Lynne Kosky MLA
Portfolio responsibility: Minister for Education

Purpose

The Bill amends the Victorian Qualifications Authority Act 2003 (the ‘Act’).

Content and Committee comment

[Clauses]

[2]. Sections 1, 2 and 12 of the Act will come into operation on the day after Royal Assent and the remaining sections come into operation on 1 January 2004.

[5]. Inserts section 8(4) into the Act to provide that the Minister may not provide the Victorian Qualification Authority (the ‘Authority’) with a direction in relation to any particular student about the award or issue of qualifications.

[7]. Substitutes a new section 16(3) in the Act to enable the Authority to delegate by instrument under its common seal certain powers to registered education and training organisations that have been approved by the Authority as fit and competent to exercise those powers.

Fees to be set by Ministerial Order not regulations

[14]. Repeals section 34(1)(a) of the Act that empowered the Governor in Council to make regulations in respect to fees.

[15]. Inserts section 35A in the Act to provide for the setting of fees by Ministerial Order.

New section 35A(1) provides –

The Minister, after calling for and considering recommendations from the Authority, may fix fees and charges that may be imposed by the Authority for investigations, registrations, accreditations and any other services provided by the Authority under this Act.

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

The Bill also provides for the Victorian Qualifications Authority to set fees through Ministerial Order rather than through regulations.

This amendment is being undertaken to provide a more flexible and responsive operating environment.

Changing fees for any Victorian Qualifications Authority services by regulation can take up to 12 months. The change to Ministerial Order means the Victorian Qualifications Authority can provide a more rapid response to changing requirements.

The amendment will enable the Victorian Qualifications Authority to set fees in line with statutory authority best practice - the same way as the Victorian Institute of Teaching - and to streamline its administrative and operational functions whilst maintaining accountability and transparency in its processes. The Victorian Qualifications Authority remains committed to consulting its stakeholders on any proposed changes to fees. I will look for evidence of such consultation in any proposal that comes to me from the Victorian Qualifications Authority.

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

The Committee notes the amendments proposed to be made by clauses 14 and 15 will permit fees to be set by Ministerial Order rather than by regulations. The process for the making of regulations (statutory rules) is governed by the Subordinate Legislation Act 1994 which prescribes substantive and procedural requirements. The relevant sections of that Act are sections 6, 8(1)(a) and sections 21 to 25. The Committee is of the opinion that the mere printing of the Order in the Government Gazette does not of itself accord transparency and accountability to the fee fixing process.

Fixing fees by Ministerial Order may contravene section 4D(a)(v) in that it insufficiently subjects the exercise of legislative power to parliamentary scrutiny. Alternatively, it may also constitute an inappropriate delegation of legislative power within the meaning of section 4D(a)(iv).

The Committee notes the reasons given by the Minister for the need for such a fee making power to be vested in the Minister.

The Committee will seek further advice from the Minister why the provisions in the Subordinate Legislation Act 1994 should not apply in this instance.

The Committee draws attention to the provisions.

The Committee makes no further comment.

Water Legislation (Amendment) Bill

Introduced: 16 September 2003
Second Reading Speech: 17 September 2003
House: Legislative Assembly
Minister introducing Bill: Hon. John Thwaites MLA
Portfolio responsibility: Minister for Water

Purpose

The Bill amends the Water Act 1989 (the ‘Act’) and the Water Industry Act 1994 to introduce provisions for permanent water saving plans and increase the penalties for certain offences relating to the use of water, such as unauthorised use of water or interference with a water authority's property.

Content and Committee comment

[Clauses]

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

[3]. Amends the Act to allow the Victorian Civil and Administrative Tribunal to make an order in proceedings brought under that Act for payment of money in awarding damages in the nature of interest.

[4]. Changes the current penalties for offences for unauthorised use of water under sections 63(1), 63(1A), 288(1) and 289(1) of the Act by trebling the amount of the maximum fine that may be imposed for a first and subsequent offences. The amendments also provide for a doubling of the current provision for imprisonment from 3 months for a first offence to 6 months and from 6 months to 12 months for a subsequent offence. Provision is also made for a further penalty for a continuing offence of 5 penalty units. The amendments provide for a cap on the maximum penalty for a continuing offence to be fixed at an additional 20 penalty units.

[6]. Inserts new sections 170A to 170G to provide that a water authority must prepare a permanent water saving plan and submit the plan to the Minister for approval.
To allow the community the opportunity to provide comments or submission on a proposed plan before it is submitted to the Minister, an authority must publish a notice summarising the restrictions and prohibitions in the Government Gazette and a newspaper circulating in the area which may be affected by the plan and noting the date by which comments and submissions must be provided. The notice must also specify where a copy of the plan can be obtained.

New section 170F provides for the penalty of the contravention of a permanent water saving plan of 10 penalty units for a first offence and 20 penalty units for a subsequent offence.

Amendments to the Water Industry Act 1994

[8]. Amends the Act to the same effect as clause 3 above.

[9]. Amends section 78H of the Act to provide for an increase in the penalty for breach of a restriction or prohibition under a drought response plan.

[10]. Inserts a new Division into the Act (new sections 78I to 78P) to provide for a licensee who is the holder of a water licence or water and sewerage licence to prepare and adopt a permanent water saving plan. The provisions under the new Division are similar to the amendments to the Water Act 1989 that require a water authority to create a permanent water saving plan.

The Committee makes no further comment.

Committee Room
6 October 2003