Alert Digest No. 8 of 2003

Tuesday, 28 October 2003

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Accident Compensation and Transport Accident Acts (Amendment) Bill

Introduced: 14 October 2003
Second Reading Speech: 16 October 2003
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

The Bill amends the Accident Compensation Act 1985 (the ‘Act’) to —

• make changes concerning what constitutes a compensable injury; and

• change the way overtime is calculated in determining pre-injury average weekly earnings; and

• provide increased compensation for non-economic loss in certain circumstances; and

• make changes concerning the return to work provisions; and

• confer an additional function on the Victorian WorkCover Authority concerning the development and implementation of employer incentive programs; and

• provide that compensation is only payable under that Act in respect of employment connected with Victoria; and

• make provision as to the substantive law governing claims for damages in respect of injuries to workers.

The Bill also amends the Accident Compensation Act 1985 and the Transport Accident Act 1986 to —

• clarify that compensation is not payable for ordinary living expenses unless they are medically necessary; and

• prevent rounding in assessments of a person's degree of impairment; and

• generally improve the operation of those Acts.

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill (other than Part 3 and sections 5, 6, and 9 to 13) comes into operation on the day after Royal Assent.

Sections 5, 6, and 10 to 13 come into operation on a day or days to be proclaimed but not later than 1 January 2005.

Part 3 consisting of clauses 15 to 22 concerning interstate arrangements, comes into operation on a day to be proclaimed.

Section 9 comes into operation 5 years after the date of commencement of section 8.

The Committee notes this extract from the Explanatory Memorandum –

Part 3 amends the Act to provide a new framework for coverage of workers operating temporarily in another jurisdiction as part of a nationally agreed approach to these issues. The commencement of this Part has not been made subject to a default date of operation to ensure that the commencement can be timed to best effect having regard to the implementation of the framework throughout Australia.

Sub-clause (5) provides that clause 9 comes into operation 5 years after the date of commencement of clause 8. This provision is a sunset provision which effectively reverses the amendments made by clause 8 providing for increased compensation for non-economic loss in certain circumstances and removes the exception to the prohibition against rounding in impairment assessments provided by sub-sections (11) and (12) inserted into section 91 of the Accident Compensation Act 1985 by clause 7.

[3]. Makes changes concerning the definition of "injury" in the Act and removes from sections 5(1)(b) and (c) of the existing definition the references to employment being a significant contributing factor. It also makes consequential amendment in other sections to remove references to that part of the definition.

Sub-clause (5) amends section 82 by inserting new sub-sections (2B) and (2C) to apply the ‘worker’s employment significant contributing factor to the injury or disease test’ in some cases.

The clause also inserts a definition of ‘heart attack injury’ and ‘stroke injury’.

Accommodation and daily living expenses

[4]. Amends the Act to make it clear that certain accommodation costs and the costs of daily living expenses are not payable as compensation under section 99 of the Act.

Calculation for overtime and shift allowances

[5]. Inserts new sub-sections (1A) to (1D) into section 5A of the Act to amend the way overtime and shift allowances are included in the calculation of a worker's pre injury average weekly earnings.

Rounding of degree of impairment to nearest whole percent

[7]. Inserts new sub-sections (9) to (12) into section 91 of the Act relating to the assessment of a worker's degree of impairment in accordance with the A.M.A. Guides. New sub-section (9) has the effect of prohibiting the rounding up or down of any number determined under the A.M.A. Guides unless the rounding is expressly required or permitted by the Act. New sub-section (10) provides that a number determined under the A.M.A. Guides must be rounded to the nearest whole percent.

New sub-sections (11) and (12) contain transitional provisions relating to assessments for the purposes of section 98C of the Act in respect of injuries occurring before the commencement of clause 8. The provisions preserve in these cases a discretion to round to 10% a worker's degree of impairment determined to be 8% or 9%. This exception to the general prohibition against rounding is subject to a 5 year sunset provision (see clause 9).

Non-economic loss calculations

[8]. Amends a number of provisions in the Act in relation to the calculation of certain workers' non economic loss under section 98C of the Act.

The substantive amendments made by this clause are subject to a 5 year sunset effected by the amendments contained in clause 9. The effect is that these amendments will apply only in respect of injuries occurring on and after the date of commencement of this clause and before the commencement of the amendments made by clause 9. The new method of calculation apply only to injuries occurring after the commencement of this provision.

[9]. The provisions in this clause are effectively sunset provisions that reverse the substantive amendments made by clause 8 and the transitional provisions inserted by clause 7. Clause 2(5) provides for these provisions to come into operation 5 years after the date of commencement of clause 8.

Sub-clause (1) repeals sub-sections (11) and (12) in section 91, inserted by clause 7, which provide for a limited exception to the prohibition against rounding in carrying out assessments of impairment in accordance with the A.M.A. Guides.

Sub-clause (2) amends section 98C(2) by substituting a new formula at the foot of section 98C(2)(c) which effectively reproduces the existing formula in section 98C(2)(b), with the relevant amounts indexed in accordance with section 100 of the Act as if they had remained part of the Act.

[12]. Amends sections 156 of the Act which imposes on certain employers obligations in relation to return to work plans, occupational rehabilitation programs and risk management programs.

[14]. Inserts a new Schedule 2 into the Act which contains a conversion table as part of the changes to impairment benefits effected by the amendments made by clause 8.

[15]. Inserts a new section 80 into the Act to provide a framework for coverage of workers operating temporarily in another jurisdiction. There is no entitlement to compensation under the Act other than in respect of employment that is connected to Victoria although the injury may occur outside Victoria.

[16]. Amends section 81 of the Act in relation to payment of compensation to sailors.

[18]. Inserts a new section 84B into the Act to establish new rules intended to prevent double recovery of compensation by workers and gives certain recovery rights to Victorian compensation payers where a worker, having received compensation under that Act, subsequently receives compensation in respect of the same injury under the laws of a place outside Victoria.

[22]. Inserts a new Schedule 3 into the Act to define "continental shelf" and "territorial sea" and "adjacent area" in relation to different States within Australia.

[23]. The clause inserts a new Part IX into the Act which contains important savings and transitional provisions.

Amendment of the Accident Compensation (Workcover Insurance) Act 1993

[24]. Provides additional defences to prosecutions under the Act as a consequence of amendments made by Part 3 of the Bill in respect to interstate arrangements.

Amendment of the Transport Accident Act 1986

[25]. Amends the Act so that the Transport Accident Commission (the ‘Commission’) is no longer liable for certain accommodation costs and the costs of daily living expenses unless the provision of the relevant things is a medical or hospital service. The provision is also affected by transitional provisions inserted by clause 32.

[28]. Inserts a new section 46C into the Act that provides that, despite anything to the contrary in the A.M.A. Guides, that a number determined under the Guides cannot be rounded other than to the nearest whole percent, unless rounding is expressly permitted or required by the Act.

[31]. Amends section 70 to increase the time available to make an application for review of a decision under that section from 28 days to 12 months.

[32]. Inserts a new Part 11 into the Act to deal with transitional arrangements applicable to the amendments made to the Act. It provides for payment of accommodation and living expenses for a further 18 months for those people who are residents of accommodation specified in clause 25.

The Committee makes no further comment.

Animals Legislation (Animal Welfare) Bill

Introduced: 14 October 2003
Second Reading Speech: 15 October 2003
House: Legislative Assembly
Minister introducing Bill: Hon. Bob. Cameron MLA
Portfolio responsibility: Minister for Agriculture

Purpose

The Bill makes amendments to the following Acts —

• the Domestic (Feral and Nuisance) Animals Act 1994;

• the Meat Industry Act 1993;

• the Ombudsman Act 1973;

• the Prevention of Cruelty to Animals Act 1986; and

• the Veterinary Practice Act 1997.

Content and Committee comment

[Clauses]

[2]. Provides for Part 1 of the Bill and sections 4, 6 to 8, 24, 29, 30(1) and (3), 34 to 36, 42, 43, 44(2) and (3), 45 to 58, 60 and 62 to 67 to come into operation on the day after Royal Assent. The remaining provisions of the Bill are to come into operation on a day or days to be proclaimed but not later than 1 December 2005.

Amendments to the Domestic (Feral and Nuisance) Animals Act 1994

[4]. Amends section 10(3) to remove the requirement for the owner of a dog when renewing the registration of that dog to make a declaration as to whether the dog is a restricted breed dog. The requirement to make a declaration will only apply when first registering the dog with a Council.

[6]. Inserts new section 28A to make it an offence to train a dog to attack, bite, rush at, chase or in any way menace persons or animals, or anything worn by persons. The offence does not apply if the dog is trained in the course of conducting a domestic animal business on registered premises and by a person conducting or employed by a domestic animal business on registered premises.

[9]. Inserts new Part 4A to provide for the regulation of domestic animals registration services and persons who implant domestic animals identification devices.

New section 63F prohibits a person from implanting a permanent identification device unless the person is an authorised implanter and, either a veterinary practitioner or a person employed by a veterinary practitioner or acting under the supervision of a veterinary practitioner.

[10]. Inserts new section 71A to provide for the Minister to appoint as an authorised officer a person who is not an employee under Part 3 of the Public Sector Management and Employment Act 1998. The Minister, in the instrument of appointment, must specify the period of appointment and the powers that the person is authorised to exercise.

In respect to clauses 10 and 11 the Committee notes this extract from the Minister’s Second Reading Speech–

It is proposed that where councils choose to employ suitably qualified contractors for routine animal management activities, that this Bill will enable these contractors to undertake a greater range of functions (for example, issuing a limited range of penalty infringement notices). It is also proposed to permit the Minister to engage persons with suitable qualifications or experience as contractors to exercise specific powers of authorised officers for specific tasks (restricted to domestic animal businesses and microchipping registries). These contractors will be subjected to the jurisdiction of the Ombudsman to provide public accountability for their actions.

[11]. Substitutes for section 72 new sections 72 and 72A.

New section 72A provides for Councils to appoint a person who is not an employee of the Council as an authorised officer if the person has the qualifications or experience prescribed by the Secretary. The Secretary can also prescribe conditions that apply to the appointment of persons who are not employees of the Council.

[14]. Inserts a new section 74A dealing with powers of authorised officers under 72A (contracted officers who are not employees of a Council) including the power to ask for ‘name and address’ where that officer believes on reasonable grounds that certain prescribed offences have been committed.

[15]. Inserts new sections 75A, 75B and 75C to provide an authorised officer (under section 71 – an employee) appointed by the Minister with the power to seize all records which the holder of a domestic animals registry licence is required to surrender under section 63S if the licence holder does not surrender those records.

[16]. Makes a consequential amendment to section 76(1)(b)(i) to recognise that authorised officers appointed by a Council who are not employees of the Council have the power to request a person to give their name and address under new section 74A(a).

[20]. Amends section 85(1) to make it clear that an authorised officer (other than an authorised officer appointed by the Minister who is not an employee under Part 3 of the Public Sector Management and Employment Act 1998) may issue an infringement notice in respect of an offence specified in section 85(1).

[24]. Inserts new Division 4A in Part 7 allowing a court, upon finding the owner of a dog or cat guilty of an offence relating to the dog or cat being found at large (sections 23(4), 24(1), 24(2) or 25(1)), to make an order requiring the owner to carry out works specified by the court to ensure that the animal is not able to escape from the owner's premises.

New section 95D(1) provides for the court, if the owner of a dog or cat is found guilty of an offence under new section 95B, to make an order that the dog or cat be destroyed and/or that the owner pay the reasonable cost of the Council for retaining the custody of the dog or cat.

[25]. Inserts new section 98AA providing a person whose interests are affected by a decision in respect of a domestic animals registry licence or a decision to prohibit a person from implanting permanent identification devices to apply to the Victorian Civil and Administrative Tribunal for review of the decision.

[27]. Amends section 100 to insert new regulation making powers that provide for the implantation and scanning of permanent identification devices and related and associated matters concerning identification devices.

Amendments to the Meat Industry Act 1993

[29]. Amends section 35 of the Meat Industry Act 1993 to make it an offence to slaughter for human consumption meat from an animal that is not a consumable animal. This will apply in respect of dogs and cats.

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

This amendment will restrict an individual's right to slaughter for human consumption dogs, cats or any other animal that is not defined under the Meat Industry Act as 'consumable'. It will not change an individual's ability to slaughter for their own consumption poultry or game or a farmer's ability to slaughter a consumable animal such as a sheep on their farm, which are currently permitted under the Meat Industry Act.

Amendments to the Ombudsman Act 1973

[30] Amends the Ombudsman Act 1973 to provide the Ombudsman with the power to monitor compliance with the Prevention of Cruelty to Animals Act 1986 by inspectors who are officers of the Royal Society for the Prevention of Cruelty to Animals; and the Domestic (Feral and Nuisance) Animals Act 1994 by authorised officers appointed by the Minister who are not employees under Part 3 of the Public Sector Management and Employment Act 1998 and authorised officers appointed by a Council who are not employees of that Council.

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

I would like now to consider the amendments to the Ombudsman Act 1973. These are a result of the recent Victorian parliamentary Law Reform Committee report on the powers of entry, search, seizure and questioning by authorised persons, in which it expressed concern that powers were being given to officers who were not directly employed by or accountable to government. In the past there have been complaints about the manner by which RSPCA officers, who have been appointed as inspectors under the Prevention of Cruelty to Animals Act, have conducted investigations. The main complaint is the lack of accountability of the employees of a private organisation to the government.

A similar situation will exist for contractors employed by councils to provide animal management services and contractors appointed by the minister to perform certain tasks with respect to domestic animal businesses and microchipping registries, as they will, by this Bill, be invested with certain powers under the Domestic (Feral and Nuisance) Animals Act. It is proposed that amendments be made to the Ombudsman Act 1973 to ensure that the Ombudsman can directly investigate complaints made against these officers and contractors.

Amendments to the Prevention of Cruelty to Animals Act 1986

Offence to fail to give name and address

[36]. Inserts new sections 23A and 23B to provide an inspector with the power to request a person's name and address if the inspector believes, on reasonable grounds, that the person has committed an offence against Part 2 (protection of animals) of the Act. New section 23B requires an inspector to produce proof of his or her identity as an inspector before exercising the power to ask for a person's name and address or at any time during the exercise of that power if asked to do so.

[37]. Substitutes new sections 25 to 32 and 32A to 32R for sections 25 to 32. The sections deal with offences and licensing matters relating to scientific procedures and breeding of specified animals.

[38]. Substitutes section 33(1) to allow a person whose interests are affected by a decision in respect of a scientific procedures premises licence, scientific procedures field work licence or a specified animals breeding licence to apply to the Victorian Civil and Administrative Tribunal for review of the decision.

[42]. Inserts a new Part 3A which provides for the issue of infringement notices.

[44]. Makes consequential amendments to the regulation making powers to provide for changes to the licensing of scientific procedures under Part 3 and to provide for regulations prohibiting and regulating certain procedures on animals and prohibiting and regulating the possession or use of implements, devices or things which may cause injury, suffering or distress in an animal. The amendments allow regulations to be made increasing the maximum fines that may be imposed under the regulations from 5 to 10 penalty units.

Amendments to the Veterinary Practice Act 1997

The amendments made to the Act bring it into line with other model medical practice related legislation which has been amended such as the Medical Practice Act 1994 and the Dental Practice Act 1999.

[45]. Amends section 3 to include within the definition of 'unprofessional conduct' two further matters, including, ‘influencing or attempting to influence the conduct of a veterinary practice in such a way that an animal’s well-being may be compromised’.

[46]. Inserts new sub-section 6(2)(fa) to (fd) to grant the Veterinary Practice Board (the ‘Board’) discretion to refuse to register a veterinary practitioner because that practitioner has insufficient English to enable them to practice or because of a disciplinary panel determination under the Act.

[50]. Substitutes section 20 to allow a complaint to be made about the professional conduct of a person who is or was, at the time the conduct took place, a registered veterinary practitioner.

[51]. Makes a consequential amendment to section 21(1) to require the Board to investigate a complaint made against a person who is no longer a registered veterinary practitioner, but was a registered veterinary practitioner at the time of the conduct that led to the complaint.

[63]. Amends section 45 to enable a panel to make determinations against a person who is no longer a registered veterinary practitioner but is found to have engaged in unprofessional conduct of a serious nature whilst a registered veterinary practitioner.

[66]. Inserts a new section 58A to provide an offence for a person, who employs a registered veterinary practitioner, to direct or incite the practitioner to do anything in the course of veterinary practice that would constitute unprofessional conduct.

The Committee makes no further comment.

Constitution (Supreme Court) Bill

Introduced: 7 October 2003
Second Reading Speech: 8 October 2003
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

The Bill amends the Constitution Act 1975 (the ‘Act’) to broaden the eligibility criteria for appointment as a Judge of the Supreme Court; and to permit the appointment of an Acting Chief Justice and an Acting President of the Court of Appeal when there is, or is about to be, a vacancy in the relevant office.

Royal Assent

The Committee notes that the Act received Royal Assent on 14 October 2003.

In the normal course the Committee would not have jurisdiction to report and comment on an Act. However, on this occasion the Committee resolved to provide a summary of the key provisions in the Act for information purposes only.

Content and Committee comment

[Sections]

[3]. Substitutes a new section 75B(1), which provides that a person is not eligible for appointment as a Judge of the Supreme Court unless he or she is or has been a judge of the High Court of Australia or of a court created by the Parliament of the Commonwealth; or a court of Victoria, or of another State, or of the Northern Territory or the Australian Capital Territory; or has been admitted to legal practice in Victoria, another State, the Northern Territory or the Australian Capital Territory, or has been enrolled as a legal practitioner of the High Court of Australia, for not less than 5 years.

[4]. Inserts new sub-section (1A) in section 79 to allow the Governor in Council to appoint a Judge of the Court to be Acting Chief Justice for a period not exceeding 6 months when there is, or is about to be, a vacancy in the office of Chief Justice.

[5]. Inserts new sub-section (1A) in section 79A, which allows the Governor in Council to appoint a Judge of Appeal to be Acting President of the Court of Appeal for a period not exceeding 6 months when there is, or is about to be, a vacancy in the office of President.

The Committee makes no further comment.

Electoral (Amendment) Bill

Introduced: 7 October 2003
Second Reading Speech: 9 October 2003
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

The Bill amends the Electoral Act 2002.

Content and Committee comment

[Clauses]

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

[6]. Inserts a new section 66(4). The new sub-section clarifies that any school or other organisation that has been granted a limited liquor licence under the Liquor Control Reform Act 1998 to sell liquor on election day cannot sell liquor during the hours of voting if the school or organisation has facilities that are being used as a voting centre.

Voting by persons unable to write

[7]. Amends section 95(1) to allow the witness to a declaration or application under Part 6 of the Act to note on the form that the person who is required to sign the form is not able to sign because of the person's physical incapacity, replacing the requirement for the person to sign his or her name or make a mark in such cases.

[8]. Amends section 109 of the Act to insert new sub-sections (1A) and (1B) to allow the application of the early voting provisions set out in sections 90 to 96 of the Act to apply to absent voters where the electoral roll is available to the election official. This will allow absent voters to place their ballot-papers directly into a ballot box rather than having to complete a declaration envelope and enclose their ballot-papers in the envelope.

Cap on political donations

[10]. Amends the definition of "relevant licence" in section 206 of the Act. A relevant licence will now also include a licence held under section 12 or 20 of the Gaming and Betting Act 1994. The amendment will subject Tabcorp Holdings Ltd. to the cap on political donations provided for in section 216 of the Act for all political donations made after the commencement of the clause.

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

The Electoral (Amendment) Bill will amend –

• section 206 of the Act to include a licence issued under the Gaming and Betting Act 1994 within the definition of a 'relevant licence' to ensure Tabcorp Holdings Ltd is covered by the cap on political donations. Only donations made by Tabcorp after the commencement of the bill will be taken into account for the purpose of calculating the total amount of the political donations in this financial year.

[11]. Amends section 216 of the Act to insert new sub-sections (3) and (4). Section 216 deals with the cap on political donations. The effect of the new sub-section (3) is to remove existing paragraph (b). This limits the meaning of a related company for the purposes of section 216 of the Act. The effect is that a relevant licence holder may make a donation to a political party that inadvertently breaches the cap because a shareholder in a related body corporate has also made a donation in the same financial year. New sub-section (4) is an application provision to ensure that any donation made since the Act came into operation (1 September 2002) by a shareholder in a related body corporate does not count towards the cap on political donations.

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

The Electoral (Amendment) Bill will amend section 216 of the Act to delete the reference to 'a shareholder in the related body corporate' to ensure that the cap on political donations does not extend too broadly. Making this amendment will ensure that shareholders in a related body corporate are not covered by the cap. A related body corporate is a holding company of a relevant licence-holder, a subsidiary of a relevant licence-holder or a subsidiary of a holding company of a relevant licence-holder.

The Committee makes no further comment.

Emerald Tourist Railway (Amendment) Bill

Introduced: 14 October 2003
Second Reading Speech: 16 October 2003
House: Legislative Assembly
Minister introducing Bill: Hon. John Pandazopoulos MLA
Portfolio responsibility: Minister for Tourism

Purpose

The purpose of the Bill is to enable the Emerald Tourist Railway Board (the ‘Board’) to lease vested Crown land for periods of up to 50 years with the approval of the Minister, in order to facilitate the development, construction and management of tourist facilities associated with the Puffing Billy Railway.

Content and Committee comment

[Clauses]

[2]. Provides for the Bill to come into operation on the day after Royal Assent.

[4]. Substitutes a new section 41(1)(a) of the Emerald Tourist Railway Act 1977 to clarify and update the purposes for which the Board can grant leases. These include the development, construction and management of tourist facilities.

[5]. Inserts new sections 41A and 41B dealing with the grant of leases of up to 50 years (up to 21 years without Ministerial approval).

The Committee makes no further comment.

Extractive Industries Development (Amendment) Bill

Introduced: 7 October 2003
Second Reading Speech: 8 October 2003
House: Legislative Assembly
Minister introducing Bill: Hon. Bob Cameron MLA
Portfolio responsibility: Minister for Resources

Purpose

The Bill amends the Extractive Industries Development Act 1995 (the ‘Act’) and replaces the old permit system for searching for stone on Crown land with a process for a person to obtain the consent of the relevant Minister as owner of the land. The Bill makes further provision for work plans and work authorities for extractive industries and removes the requirements for certification of managers of quarries and extractive industries.

Content and Committee comment

[Clauses]

[2]. Provides for the Bill to come into operation on proclamation but not later than 1 December 2005.

[4]. Substitutes a new section 8 of the Act to create an offence to search for stone on Crown or private land or Crown land without the consents and/ or authorities required under the Act.

[6]. Substitutes new sections 11 and 12 of the Act to provide for consent to search for stone on Crown land. It sets out the process and timelines for the application to search and requires the Minister to give notice of the application to certain persons or bodies. The applicant may apply to Victorian Civil and Administrative Tribunal (VCAT) to review a decision of the Minister not to consent.

[7]. Substitutes new sections 14 to 16 in the Act.

New section 16 gives the Minister the power to cancel or suspend the consent in certain circumstances or at the request of the consent holder. The consent holder has a right of review to the VCAT for a decision to withdraw or cancel the consent.

[13]. Inserts a new section 24A into the Act to provide for the review of certain decisions about work plans and authorities to VCAT.

The Committee makes no further comment.

Fair Trading (Further Amendment) Bill

Introduced: 14 October 2003
Second Reading Speech: 16 October 2003
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibility: Minister for Consumer Affairs

Purpose

This Bill amends the Fair Trading Act 1999 (the ‘Act’) to further regulate telemarketing agreements.

The Fair Trading (Amendment) Act 2003 relocated the provisions in Part IV of the Goods Act 1958, that deal with implied conditions and warranties in relation to contracts for goods and services. Under the Trade Practices Act 1974 (Cth) some contracts are excluded from some or all of the warranties in relation to services. The Bill amends the provisions of the Fair Trading (Amendment) Act 2003 to replicate those exclusions. The Act also amends the requirement that recreational service providers obtain a customer's signature if they wish to use a term in the contract for the supply of their services that would exclude, restrict or modify the conditions and warranties otherwise implied under the provisions.

Other minor amendments are made by the Bill including—

• Prescribed forms are no longer required for acknowledgement of consent to entry into premises by inspectors in the relevant provisions of the Fair Trading Act 1999, the Credit (Administration) Act 1984, the Motor Car Traders Act 1986, the Second-Hand Dealers and Pawnbrokers Act 1989 and the Travel Agents Act 1986; and

• The Credit (Administration) Act 1984 is amended to enable the Director of Consumer Affairs Victoria to apply for grants from the Consumer Credit Fund; and

• Various provisions of the Second-Hand Dealers and Pawnbrokers Act 1989 are amended to ensure that their effect is consistent with their intended purpose, namely that fees for particular applications are either the fee set out in the provisions or, if another fee is prescribed in regulations, then that other fee.

Content and Committee comment

[Clauses]

[2]. A number of sections commence on Royal Assent. Section 23 is deemed to have come into operation on 27 May 2003. The remaining provisions commence on proclamation but not later than 31 December 2004.

Amendments to the Fair Trading Act 1999

[6]. Amends section 32X(c) to make it clear that in assessing whether a term of a contract is an unfair term, a court may take into account whether the term has the effect of penalising the consumer but not the supplier for a breach of the contract.

[7]. Inserts new Division 2A of Part 4 regulating telephone marketing agreements.

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

• a telemarketing agreement commences on the date of the telephone conversation in which the agreement was reached, provided that the consumer has given 'explicit informed consent' to the agreement;

• records of 'explicit informed consent' must be kept by the telemarketer and made available for inspection by Consumer Affairs Victoria;

• consumers must be advised in the telephone conversation of their cooling-off rights;

• consumers must be sent a prescribed cooling-off notice and the terms of the agreement (in writing) within five days of the telephone conversation or any longer agreed period;

• a cooling-off period of 10 days commences from the date of receipt by the consumer of the cooling-off notice and the copy of the agreement;

• there is a six-month 'penalty' cooling-off right where the trader fails to send the cooling-off notice and the copy of the agreement;

• consumers can exercise their cooling-off right by telephoning the trader;

• the hours of telemarketing are restricted to 9.00 a.m. to 8.00 p.m. on weekdays, 9.00 a.m. to 5.00 p.m. on Saturdays and Sundays, and precluded on public holidays; and

• otherwise, similar requirements apply as for door-to-door selling under the act.

Proposed section 67B provides that a supplier or a person acting on their behalf has a duty to cease telephone marketing if requested to do so by the prospective purchaser and must not contact the person for a period of 30 days for the purpose of trying to sell goods or services from that supplier.

Proposed section 67E provides that a written form of the telephone marketing agreement that sets out the full terms of the agreement, and which includes a notice advising the purchaser of the right to cancel the agreement and a notice which may be used to cancel the agreement, must be served on the purchaser by the supplier within 5 days after making the telephone marketing agreement or any longer period agreed.

Proposed section 67F provides that, if the requirements in section 67E are not complied with, the supplier and any person entering into the agreement on their behalf are guilty of an offence under the Act and liable to penalty. The supplier cannot enforce against a purchaser an agreement that does not comply with section 67E.

Proposed section 67H sets out when and how a purchaser may cancel a telephone marketing agreement. Proposed section 67J sets out the obligations of the supplier upon cancellation of a telephone marketing agreement within the cooling-off period.

Proposed section 67L sets out the purchaser's obligations upon cancellation of a telephone marketing agreement.

Proposed section 67M sets out the rights and obligations of both supplier and purchaser if a telephone marketing agreement is void for lack of explicit informed consent on the part of the purchaser.

[11]. Amends section 79 to provide that the obligation on a supplier not to sell or dispose of any trade-in during a cooling off period also applies to telephone marketing agreements.

[15]. Amends section 118 to provide that the Director of Consumer Affairs Victoria or an inspector may require a supplier to produce the record of a purchaser's consent kept by the supplier under proposed section 67D.

[16]. Amends section 119(3) to remove the requirement that the acknowledgment of consent to entry and search by an inspector be in a prescribed form.

[21]. Amends section 26(3) of the Credit (Administration) Act 1984 to remove the requirement that the acknowledgment of consent to entry and search by an inspector be in a prescribed form. Section 26(3) already sets out the information that the acknowledgment must contain in order to protect the rights of the consenting party.

Section 26(3)(b) is also amended to provide that the acknowledgment state that the person has been informed that they can refuse to consent to the seizure of anything or to the taking of any sample, copy or extract as well as to the entry and search.

[24]. Amends the Fair Trading (Amendment) Act 2003 (Assented to, but this provision is not yet in force) proposed section 32N(2) of the Fair Trading Act 1999 to remove the current requirement that a term that excludes, restricts or modifies the application of the implied terms to contracts for the supply of recreational services must be signed by the purchaser prior to the supply of the services. This provision is replaced with the requirement that the term be brought to the attention of the purchaser prior to the supply of the services.

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

It will also remove the requirement for 'recreational service providers' to obtain consumers' signatures on a waiver purporting to exclude the implied conditions and warranties. The signature requirement is to be removed because it is recognised that it has been difficult or impractical for many such providers to obtain the signatures, leaving them unable to take advantage of the ability to obtain waivers of the implied terms. That ability is part of the government's response to the public liability insurance crisis.

The clause also allows a delayed commencement for provisions not yet proclaimed in the Fair Trading (Amendment) Act 2003 to be proclaimed not later than 1 July 2004 rather than by 31 December 2003.

[26]. Amends sections 42, 43 and 46 of the Gas Industry Act 2001 to provide that certain provisions of the Fair Trading Act 1999 relating to contact sales agreements and telephone marketing agreements do not apply to some contracts for the supply or sale of gas.

[27]. Amends section 82AG(3) of the Motor Car Traders Act 1986 to remove the requirement that the acknowledgment of consent to entry and search by an inspector be in a prescribed form. Section 82AG(3) already sets out the information that the acknowledgment must contain in order to protect the rights of the consenting party.

Section 82AG(3)(b) is also amended to provide that the acknowledgment state that the person has been informed that they can refuse to consent to the seizure of anything or to the taking of any sample, copy or extract as well as to the entry and search.

[28]. Amends section 26J(3) of the Second-Hand Dealers and Pawnbrokers Act 1989 to remove the requirement that the acknowledgment of consent to entry and search by an inspector be in a prescribed form. Section 26J(3) already sets out the information that the acknowledgment must contain in order to protect the rights of the consenting party.

Section 26J(3)(b) is also amended to provide that the acknowledgment state that the person has been informed that they can refuse to consent to the seizure of anything or to the taking of any sample, copy or extract as well as to the entry and search.

[29]. Amends section 39I(3) of the Travel Agents Act 1986 to remove the requirement that the acknowledgment of consent to entry and search by an inspector be in a prescribed form. Section 39I(3) already sets out the information that the acknowledgment must contain in order to protect the rights of the consenting party.

Section 39I(3)(b) is also amended to provide that the acknowledgment state that the person has been informed that they can refuse to consent to the seizure of anything or to the taking of any sample, copy or extract as well as to the entry and search.

The Committee makes no further comment.

Local Government (Democratic Reform) Bill

Introduced: 14 October 2003
Second Reading Speech: 15 October 2003
House: Legislative Assembly
Minister introducing Bill: Hon. John Thwaites MLA
Portfolio responsibility: Minister for Local Government

Purpose

The Bill amends the Local Government Act 1989 (the ‘Act’) to provide for democratic reforms in local government, to improve accountability, probity and transparency and to enhance the functioning of local government. The Bill also makes related amendments to the City of Melbourne Act 2001 and minor consequential amendments to the Docklands Act 1991.

Content and Committee comment

[Clauses]

[2]. Part 1 of the Bill comes into operation on the day after Royal Assent. Part 5 of the Bill comes into operation on 1 February 2004. The remaining provisions of the Bill come into operation on proclamation but not later than 31 December 2004.

[3]. Provides for the insertion of a Preamble as a new section 1 of the Act to provide for the recognition of local government, in accordance with section 74A(1) of the Constitution Act 1975, as a distinct and essential tier of Government that provides for the peace, order and good government of a municipal district; that Councils work in partnership with the Governments of Victoria and Australia; that a Council consists of its democratically elected Councillors; that Councils provide governance and leadership for the local community; that Councils are accountable to their local communities for the performance of their functions and the use of resources; that it is the purpose of this Act to establish a legislative scheme that supports the system of local government in accordance with Part IIA of the Constitution Act 1975.

[4]. Inserts a new section 1A into the Act that provides that the provisions of the Local Government Act 1989 are to be interpreted so as to give effect to the Preamble and the local government charter. In the interpretation of the Preamble and the local government charter, a construction that promotes consistency between the provisions of the Act and any other Act is to be adopted.

[5]. Inserts a new Part 1A in the Act to include a local government charter that defines the purposes, functions and powers of Councils.

[6]. Inserts a new section 5B in the Act that provides that a Council must consist of between 5 and 12 Councillors and specifies the two types of electoral structures that apply to a Council.

[9]. Amends section 219(1) in the Act to provide for the suspension of Councillors by the Governor in Council on the recommendation of the Minister on certain specified grounds and subject to consideration of steps taken by the Council.

[10]. Substitutes a new Division 1 of Part 3 of the Act to amend the provisions relating to the entitlement of voters. These provisions will limit enrolments to residents and ratepayers. Ratepayers will be limited to a maximum of either two owners or two occupiers for each rateable property and no person may be enrolled more than once in a municipality, irrespective of how many grounds of entitlement they may have.

[11]. Replaces the existing sections 21 to 24 of the Act with new sections 21 to 24C. This provides a new roll preparation process whereby the rolls close on an entitlement date that is 57 days before election day. This replaces a current process where the entitlement date is around 3 months before election day.

[14]. Amends section 28(1) of the Act with respect to the qualifications to be a candidate and a Councillor and requires candidates and Councillors to be entitled to be on the voters' roll in accordance with section 11 (clause 10). A transitional provision is also made to ensure sitting Councillors may not lose their existing qualification only as a consequence of the provisions of this Bill.

[15]. Replaces Divisions 4 and 5 of Part 3 of the Act to provide for all Councils to conduct general elections in November every four years from November 2008. A transitional provision requires that every Council hold a general election in either November 2004 or November 2005.

[30]. Inserts a new Division 9 in Part 3 of the Act to provide for the disclosure of campaign donations over $200 in value (including goods and services) in Council elections.

[32]. Replaces Division 2 of Part 10 of the Act with two new Divisions to establish a revised process for the regular and independent conduct of electoral representation reviews for all Councils. New section 219F describes the process required for a review. This includes two stages of public notification and consultation followed by submission of the report to the Council and the Minister.

Nomination fees to be prescribed by regulations

[34]. Amends Schedule 2 of the Act to specify that nomination fees for candidates must be $250 or a higher amount prescribed in regulations. It is also specified that nomination fees must not be returned to candidates who withdraw their nominations or retire.

[35]. Amends clause 9 of Schedule 2 of the Act to specify that, in the event that a candidate dies after the close of nominations and before the close of voting, the election will proceed and the nomination fee will be returned to the candidates' personal representative.

[39]. Inserts clause 5A in Schedule 3 of the Act to clarify that votes may be counted by electronic means and to provide for regulations to be made in respect to electronic counting.

[42]. Amends clause 13 of Schedule 3 of the Act in regard to recount of votes in a Council election. The previous limitations on the number of recounts are removed, along with the automatic right of candidates to demand a recount. Any number of recounts may be conducted at the discretion of the returning officer, who must also attempt to notify all candidates of each recount.

[48]. Substitutes new sections 63 and 64 of the Act for the existing sections 63, 64 and 65. This removes the requirement for Councillors to swear an oath of allegiance. A Councillor will now be required instead to make an oath of office.

[51]. Replaces section 70 of the Act to specify certain limits on nominations for Councillor.

[57]. Inserts a new Division 1A, "Conduct and Interests", after section 76A of the Act.

New section 76B imposes a penalty of 100 penalty units for a failure by a Councillor or member of special committee to comply with provisions prohibiting improper use of their position or of information gained through their position.

[59]. Replaces section 77 of the Act which prohibits the release of confidential information by a Councillor or member of a special committee.

[60]. Inserts new sections 77A and 77B in the Act requiring Councillors or members of special committees to make a disclosure if they have an interest in a matter under consideration.

[66]. Inserts a new section 93A in the Act to limit the making of major policy decisions by Councils during the election period for a general election.

Amendment of the City of Melbourne Act 2001

[97]. Replaces sections 9 and 10 of the Act with new sections 9, 9A to 9J and 10, which specify voter entitlements for Melbourne City Council elections.

[99]. Replaces sections 12 and 13 of the Act with a new section 12 that specifies that the Melbourne City Council must hold elections in accordance with Division 4 of Part 3 of the Local Government Act 1989.

[103]. Amends the Act by inserting a new section 25A that empowers the City of Melbourne to delegate certain Councillor related powers to the Lord Mayor.

The Committee makes no further comment.

Port Services (Port Management Reform) Bill

Introduced: 7 October 2003
Second Reading Speech: 8 October 2003
House: Legislative Assembly
Minister introducing Bill: Hon. Peter Batchelor MLA
Portfolio responsibility: Minister for Transport

Purpose

The Bill amend the Port Services Act 1995 (the ‘Act’) to –

• consolidate in that Act the law relating to the establishment, classification and management of Victorian ports;

• establish a new port corporation to be called the Port of Hastings Corporation vested with broader functions and powers as the successor to the Hastings Port (Holding) Corporation;

• create a body to be known as the Victorian Regional Channels Authority to replace the Victorian Channels Authority;

• require all port managers to prepare, and to comply with, safety and environment management plans;

• make a number of other changes to reform and improve the general operation of that Act.

The Bill also makes consequential changes to the Marine Act 1988 and to other Acts.

Content and Committee comment

[Clauses]

[2]. Sections 1 to 4, 7, 8, 12 to 17 and 20 to 22 come into operation on the day after Royal Assent. The remaining provisions come into operation on proclamation but not later than 1 July 2004.

[6]. Inserts a new section 6 into the Act to empower the Governor in Council by Order published in the Government Gazette to name any port established under section 5, and to declare the port to be either a commercial trading port or local port. Similarly, the Governor in Council can revoke the declaration of a port and, among other things, change the status of a port from a commercial trading port to a local port and vice versa.

[7]. Inserts a new sub-section (2) in section 15 of the Act. Section 15 currently requires the Port of Melbourne Corporation to obtain the approval of the Minister before it acquires or disposes of any interest in land. The proposed new sub-section enables the Minister to exempt any interest from the approval process. The amendment will obviate the need for the Minister to approve minor transactions such as the granting of inconsequential short term leases or licences.

[9]. Substitutes a new Division for Division 1A of Part 2 of the Act to create a new body to be known as the Port of Hastings Corporation which will be the successor to the Hastings Port (Holding) Corporation.

[10]. Substitutes a new Division for Division 2 of Part 2 of the Act to create the Victorian Regional Channels Authority as the successor to the Victorian Channels Authority.

[15]. Substitutes a number of new sub-sections for section 60(8) of the Act to give the Essential Services Commission an ability to extend the time within which it is required to make a determination in respect to a dispute between a channel operator and a person seeking access to a channel and to make more flexible the grounds upon which the Commission can refuse to determine an application. Provision is also being made for appeals against a decision of the Commission not to make a determination.

[17]. Inserts a number of new sections into the Act relating to the powers of the Essential Services Commission in determining a dispute. The Commission will have a capacity to give various kinds of directions to the parties to a dispute. These will include a power to direct that confidential or commercially sensitive material be made available—if necessary under the umbrella of a confidentiality agreement. Provision is made for appeals against such directions of the Commission.

[18]. Inserts a new Part 6A relating to Port Management Plans. New sections 91G and 91H will permit Ministerial guidelines and directions to be given in respect to management plans.

[19]. Substitutes a new section 98(1) of the Act to create a head of power to make regulations with respect to commercial trading ports operated by port corporations and local ports.

[23]. Inserts a new Part 14 into the Act to provide transitional provisions necessary following the creation of the Port of Hastings Corporation and the abolition of the Port of Hastings (Holding) Corporation. Staff are transferred on the same terms and conditions as apply to their employment with the old Corporation.

[24]. Inserts a new Part 15 into the Act dealing with the transitional provisions consequent upon the creation of the Victorian Regional Channels Authority and the abolition of the Victorian Channels Authority. Staff are transferred on the same terms and conditions as apply to their employment with the old Authority.

The Committee makes no further comment.

Professional Standards Bill

Introduced: 14 October 2003
Second Reading Speech: 16 October 2003
House: Legislative Assembly
Minister introducing Bill: Hon. John Brumby MLA
Portfolio responsibility: Treasurer

Purpose

In respect to the purposes of the Bill the Committee notes these extracts from the Minister’s Second Reading Speech –

The objects of this Bill are to:

• enable the creation of schemes to limit the civil liability of professionals and members of occupational associations and groups;

• facilitate the improvement of occupational standards of such persons and to protect the consumers that receive their services; and

• establish the Professional Standards Council to supervise the preparation and approval of schemes and to assist in the improvement of occupational standards and protection of consumers.

Application

This Bill is not confined to the traditional professions of accounting, law and engineering. It can apply more broadly to all occupational associations.

Capping

This Bill limits liability by imposing a cap on the level of professional liability damages for pure economic loss. The cap will not apply to liability arising from claims for death, personal injury or any conduct involving a breach of trust, fraud or dishonesty. In particular, the Bill does not apply to claims against the medical profession.

…

Liability may be capped, under this Bill, by reference to:

• insurance arrangements;

• business assets;

• a multiple of the professional service fee; or

• a combination of all three.

The Bill, which is designed to be flexible, provides that a minimum threshold cap of $500,000 would apply in all cases. The cap on liability can vary between and within occupational groups, reflecting the perceived level of risk to which potential clients may be exposed. For example, the New South Wales solicitors scheme sets caps that range from a minimum of $1.5 million up to $50 million.

…

Scheme membership

Membership of a scheme is voluntary. Under the Bill a scheme would not be imposed on any profession or occupation. Different professional and occupational associations or groups will be responsible for determining whether they wish to participate in professional standards by applying to the council to register a scheme.

A scheme may apply to all, or certain classes of its members.

…

Penalties

This Bill mandates that members of a scheme must disclose a limitation of their professional liability to a customer or potential customer. A member who fails to make this disclosure will lose the benefit of capped liability.

Any scheme member who breaches the provisions of the Bill is also liable to statutory penalties. Furthermore, a member who fails to comply with obligations imposed under a scheme may be subject to disciplinary action by his or her occupational association.

Content and Committee comment

[Clauses]

[2]. The Act will commence on a proclaimed day or days.

[4]. Defines ‘occupational liability’ as civil liability arising in tort, contract or otherwise, directly or vicariously for anything done or omitted to be done in performance of the occupation.

[5]. Declares that the Act does not apply to liability for damages arising from the death of, or personal injury to, a person; any negligence or other fault of a legal practitioner in acting for a client in a personal injury claim; a breach of trust or fiduciary duty; or fraud or dishonesty.

The Act does not apply to liability that may be the subject of proceedings under section 110 (entitlement to indemnity) of the Transfer of Land Act 1958.

[6]. Provides that to the extent of any inconsistency, Parts 3, 4 and 5 are to take effect subject to the provisions of other Acts. Otherwise, the Act is to have effect despite any other law to the contrary.

[7]. The Act binds the Crown. The Crown is not liable to be prosecuted for an offence under the Act.

[8]. Provides that the Professional Standards Council (the ‘Council’) established by clause 42, may approve a scheme, upon application by an occupational association, to limit the occupational liability of its members.

[12]. Enables the Council to conduct public hearings concerning a scheme. The public hearing may be conducted if the Council considers it appropriate.

[13]. Provides for the Council to submit schemes it has approved to the responsible Minister. The responsible Minister is required to consult other Ministers whose area of responsibility may be affected by a particular scheme in accordance with section 6(a) (consultation within guidelines) of the Subordinate Legislation Act 1994.

[16]. Enables a person who is, or is reasonably likely to be, affected by a scheme to challenge its validity in the court on the ground that it does not comply with the Act.

[19]. Provides that a scheme can apply to all persons within an occupational association or to a specified class or classes of persons within that association. An occupational association may exempt a person from the scheme on application by that person.

[23]. Provides that a person to whom the scheme applies will not be liable for damages above the amount of the monetary ceiling specified in the scheme as part of a proceeding relating to occupational liability.

[26]. Enables a maximum liability to apply to all cases to which the scheme applies or different amounts for different cases, classes or purposes. An occupational authority is also granted a discretionary authority to specify a higher maximum liability than would otherwise apply.

[28]. A scheme cannot provide for liability to be less than $500,000.

[29]. Requires an insurance policy to be of a kind which complies with standards determined by the occupational association concerned.

[30]. Provides that a scheme limits the occupational liability of a person to whom a scheme applies from the date of its commencement, for the period in which the scheme remains in force, for an act or omission.

The liability of a person who is subject to a scheme will not be limited by the scheme, if the person has not notified the client that the person's liability was limited. Notification may include a written document or oral statement.

[31]. Provides that the limitation of liability is a limitation of the amount of damages which may be awarded for a single claim. It is not a limitation of the amount of damages which may be awarded for all claims arising out of a single event.

[33]. Provides that a scheme in force under the Act will apply only to liability that arises after the scheme's commencement.

[34]. Provides that an application of a scheme is to cease after a period determined by the Council of not more than 5 years.

[35]. Requires a person whose civil liability is limited under the Act to disclose that fact on all documents given by the person to a client or prospective client that promote or advertise the person or the person's occupation, including official correspondence ordinarily used by the person in the performance of the person's occupation, and similar documents.

[36]. Enables an occupational association to compel its members to hold insurance against occupational liability and may specify different insurance arrangements for different categories of members.

[41]. Enables the occupational association to incorporate, as part of a scheme, the code set out in Schedule 1 (complaints and disciplinary measures).

[42 to 52]. Establishes a body corporate to be known as the Professional Standards Council (the ‘Council’) with the full legal capacity of a body corporate and provides for its membership, functions, procedures, referral of complaints, establishment of committees, engagement of consultants and accountability.

[54]. Prevents persons to whom a scheme applies from contracting out of the provisions of the Act. [55]. There is no limitation on additional insurance a person may make apart from those made for the purposes of the Act.

Section 85 Report to the Parliament pursuant to section 4D(b)(i) and (ii) of the Parliamentary Committees Act 1968 concerning a repeal alteration or variation of section 85 of the Constitution Act 1975 (limitation of the jurisdiction of the Supreme Court).

[56]. Declares that clauses 30, 31 and 48 alter or vary section 85 of the Constitution Act 1975. These clauses restrict or limit the capacity of the court to award damages above the limit specified in a scheme approved by the Minister under the Act.

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

Clause 55 states that it is the intention of clauses 30, 31 and 48 of this Bill to alter or vary section 85 of the Constitution Act 1975 in the following ways.

Clause 30 provides for the limitation of occupational liability by the member of an approved scheme. The liability of a member of a scheme will be limited by reference to the relevant scheme.

Under this Bill, a scheme will limit liability by reference to insurance arrangements, business assets, a multiple of the fees charged or a combination of these three different facets. It provides that the court may give judgment against each defendant for not more than that amount.

However, this limitation on liability will only apply for any cause of action based on an act or omission that has occurred while the scheme is in force.

The reason for imposing restrictions on the power of the court to award damages for purely economic loss is to promote the objects of the Act, namely, to limit the civil liability of members of occupational associations and create appropriate incentives for such persons to:

• promote the interests of consumers by adopting rigorous risk management strategies; and

• be subjected to a complaints and disciplinary code administered by the relevant occupational association.

This clause also directs that liability will not be limited, as set out in a scheme, where the member has, at no stage before the relevant act or omission, given or caused to be given to the client a document disclosing that the member is party to a scheme that limits liability or otherwise so informed the client.

Under clause 31, a limitation imposed by a scheme in force under this Bill limits the amount of damages that may be awarded, by the court, for a single claim. This clause does not impose a limitation on the amount of damages that may be awarded for all claims arising from a single event.

This clause provides that joint interests between two or more persons, founded on the same act or omission, must be treated as a single claim by the court.

The court is also required to treat as a single claim, two or more claims by the same person, that have arisen from a single event involving associated persons to whom a scheme in force under the act applies.

The reason for limiting the amount of damages that may be awarded by the court, based upon the occurrence of a single event, is intended so as to ensure that liability is limited in accordance with the operation of a scheme in force under this Act. Moreover, this clause encourages the efficient allocation of judicial and court administration resources whilst reducing the costs of litigation to potential claimants, defendants and related persons.

Clause 48 provides for those instances where an occupational association refers to the professional standards council, established by this Bill, any complaint or other evidence relating to a member or former member of an occupational association and the commitment of an offence under this Bill or any associated regulations.

Under this clause, a court will not consider any action, liability, claim or demand, relating to the referral of a complaint to the council, against an association (or any member of the association's executive body or any person acting under the direction of the association or its executive body) who has acted in good faith.

The reason for providing an immunity for occupational associations and its members is to ensure that the association is able to undertake its functions effectively.

A restriction on the ability of the court to consider any action relating to the referral of a complaint to the council is intended to encourage an occupational association to take appropriate action to discipline its members.

[57]. Enables the Governor-in-Council to make regulations for the purposes of the Act including fees for applications to the Council in respect to a scheme or annual fees paid to the Council by the occupational association. The regulations may create offences punishable by a penalty not greater than 20 penalty units.

[58]. The Act must be reviewed within 5 years.

Schedules

Personal immunity

Schedule 1 contains the Occupational Associations (Complaints and Discipline) Code including an immunity from personal liability for members of the executive body of an occupational association for an act or omission done in good faith (clause 11 of the Schedule). Any liability attaching to the occupational association instead.

Schedule 2 provides provisions relating to Members of the Council including an immunity from personal liability for Members of the Council for an act or omission done in good faith (clause 8 of the Schedule). Any liability attaching to the Council instead.

The remaining schedules deal with the procedures of the Council (Schedule 3) and with interim provisions for fees and charges (Schedule 4).

The Committee makes no further comment.

Residential Tenancies (Amendment) Bill

Introduced: 7 October 2003
Second Reading Speech: 9 October 2003
House: Legislative Assembly
Minister introducing Bill: Hon. Bronwyn Pike MLA
Portfolio responsibility: Minister for Consumer Affairs

Purpose

The Bill amends the Residential Tenancies Act 1997 (the ‘Act’) to —

• provide that the Director of Housing may pay amounts of bonds on behalf of tenants by means of Director of Housing vouchers; and

• enable the Residential Tenancies Bond Authority (RTBA) (the ‘Authority’) to refund amounts of certain bonds paid by the Director of Housing and held by the Authority on 30 June 2003 to the Director of Housing; and

• provide that it is a function of the Authority to collect certain information and to disclose that information to the Director of Housing.

Submissions

The Committee received a submission from the Office of the Victorian Privacy Commissioner, Mr Paul Chadwick (see Appendix 4).

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill come into operation on proclamation but not later than 1 July 2004.

[16]. Inserts new paragraph (ca) and (cb) in section 431 (functions of the Authority) of the Act.

New paragraph (ca) provides that it is a function of the Authority to collect the information contained in bond lodgement forms given to the Authority, as well as other information that is kept by the Authority in relation to bonds it holds.

New paragraph (cb) provides that it is a function of the Authority to disclose to the Director of Housing all information (with the exception of any names) collected in relation to bonds, being the information referred to in new paragraph (ca). This is to enable the Director of Housing to use such information for research, compiling statistics and public education.

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

Data collection

Under the current system, a landlord who receives a bond must jointly complete a bond lodgment form with the tenant and then lodge that form, together with the bond, with the Residential Tenancies Bond Authority.

The information on a bond lodgment form collected by the Residential Tenancies Bond Authority includes both prescribed information and other additional information. Of particular interest to the Director of Housing is the information relating to the amount of rent paid for properties. This is used as an important indicator of affordability in the rental housing market.

Since the establishment of the Residential Tenancies Bond Authority in 1998, there has been an arrangement whereby the director of housing receives data from the Residential Tenancies Bond Authority for the purpose of research, compiling statistics and monitoring the private residential rental market.
However, during the implementation of the Information Privacy Act 2000, the Residential Tenancies Bond Authority concluded it was necessary to expressly provide for the exchange of this important data within the Act to the Director of Housing.

Consequently, data exchange has been suspended between the Residential Tenancies Bond Authority and the Director of Housing.

The data collected from bond lodgment forms enables the Director of Housing to monitor the private rental market for the purpose of the public interest in planning housing assistance under the Housing Act 1983, as well as informing the market of local conditions. Without access to this data, the Director of Housing has had difficulty monitoring changes in the private rental market. The ability to plan and administer housing assistance has been diminished.

The issue of housing affordability has received increased prominence through the negotiations of the Commonwealth-State housing agreement and the recently announced Productivity Commission inquiry into first home ownership, which will look at several aspects of housing availability and affordability.

The Director of Housing also uses the Residential Tenancies Bond Authority's data to provide information to the housing sector. An example of this is the quarterly Rental Report, published by the director of housing, which is the main source of market information on private rental in Victoria.

This report is used widely within both the public and private sectors, and is considered to be a reliable source of rental market information in Victoria. Due to the necessary suspension of data exchange, this report has not been published since the June quarter 2002.

Both the tenants' representative body, the Tenants Union of Victoria, and the landlords' representative body, the Real Estate Institute of Victoria, support the data being made available to the Director of Housing. Furthermore, these bodies rely on the statistics in the rental report in representing their constituents.

The loss of the Director of Housing's access to the data has hindered the Director of Housing from monitoring the private rental market, adversely affecting its ability in efficiently planning and administering housing assistance.

Therefore, a new provision is proposed to give the Residential Tenancies Bond Authority the power to collect certain additional tenancy information on the bond lodgment form.

In addition, a new provision is proposed to give the Residential Tenancies Bond Authority the power to pass on all information collected via the bond lodgment form (with the exception of tenant names) to the Director of Housing for the purposes of compiling statistics, research and public education.

The privacy of tenants, landlords or agents will not be compromised as their names will not be disclosed to the Director of Housing. Further, published information will be in aggregate form and single tenancies will not be able to be identified.

This Bill seeks to restore the public interest data exchange from the Residential Tenancies Bond Authority to the Director of Housing, while at the same time, protecting citizens' privacy.

The Committee makes no further comment.

Road Safety (Amendment) Bill

Introduced: 7 October 2003
Second Reading Speech: 9 October 2003
House: Legislative Assembly
Minister introducing Bill: Hon. Peter Batchelor MLA
Portfolio responsibility: Minister for Transport

Purpose

The purposes of the Bill are to —

• change how a vehicle may become registered as a written-off vehicle and who has standing to appeal against a written-off vehicle registration;

• amend the drink-driving provisions to allow breath analysing instruments to measure the concentration of alcohol in breath instead of blood, to facilitate the proof of authority to operate such instruments and expand the means by which certain certificates may be served;

• enable a chain of nominations of the actual driver to be made under the "owner onus" provisions relating to camera detected traffic offences and parking infringements and include trailers in the coverage of camera detected traffic offences;

• facilitate the use of point to point camera systems for the detection and prosecution of offences under the Act;

• require uniformed police officers to identify themselves when exercising powers of inspection or search concerning heavy vehicle and widen the regulation-making powers with respect to speeding heavy vehicles;

• clarify the operation of the demerit points provisions in relation to drivers who hold, or have held, a full driver licence;

• make amendments to the Transport Act 1983, the Marine Act 1988 and the Melbourne City Link Act 1995 corresponding to certain amendments made to the Road Safety Act 1986 by this Bill.

Submission

The Committee received a submission from the Office of the Victorian Privacy Commissioner, Mr Paul Chadwick. The submission appears in Appendix 5.

Content and Committee comment

[Clauses]

[2]. Part 1 and Part 2 (except clauses 7 and 10), Part 3 (except clause 29), Part 4 (except clause 35) and Part 5 come into operation on the day after Royal Assent. Clauses 7, 10, 29 and 35 come into operation upon a date to be proclaimed but not later than on 1 January 2005.

Amendment of the Road Safety Act 1986

Written-off vehicles

[4 to 7]. Amends the provisions in the Act concerning the register of written-off vehicles.

New section 16B(4) requires a court to have regard to the matters set out in section 275(2) of the Property Law Act 1958 in determining whether persons are domestic partners.

Amended section 16E(1) and substituted sections 16E(2) and (2A) provide for appeals regarding the register of written-off vehicles.

Drink driving provisions

[8 to 15]. Amend a number of provisions in the Act relating to drink-driving.

Clauses 8(2) to (31) amend the description of the way in which the prescribed concentration of alcohol can be measured which appear in the relevant sections of the Act, and in Schedule 1 to the Act to permit drink-driving offences to be established by direct reference to the measurement of a prescribed concentration of alcohol in breath, as well as by measuring a prescribed concentration of alcohol in blood. The amendments will not affect the concentration of alcohol under which a person can legally drive.

The amendments will simply allow the reporting of the concentration of alcohol in a sample of a driver's breath in terms of that actually measured, instead of expressing the measurement as concentration of alcohol in blood.

[11]. Amends sections 49(1)(d), 53(1)(b) and 54(3) of the Act, which relate to the requirement to stop at a preliminary breath testing station and to remain stopped during the breath analysis procedure.

Owner onus

[16 and 17]. Amends the "owner onus" provisions in the Act dealing with the circumstances in which the owner or person in charge of a vehicle is liable for a camera detected traffic offence or a parking infringement.

Point to Point Camera System

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

The point-to-point camera system records images of all vehicles using the roads under surveillance for subsequent examination to detect speeding offences, not only vehicles that have been actually detected speeding, as with existing speed cameras. However the system produces reports only where, after the system has compared data collected from two or more gantries, it appears that a speeding offence has occurred. The system is programmed to delete other information, including images of vehicles. Images relating to an offence will be destroyed after legal proceedings are completed.

In terms of statutory privacy safeguards, it is considered that the Information Privacy Act 2000 provides an adequate framework for protecting the privacy of motorists using the relevant roads.

Under the information privacy principles the information collected may only be used and disclosed for the purposes for which the information is collected (that is, enforcement of the speeding laws) or for permitted secondary uses (such as criminal law enforcement) where the conditions set out in the legislation have been satisfied. The Bill also makes it clear that neither the point-to-point camera system nor the tolling system used on the City Link are surveillance devices for the purposes of the Surveillance Devices Act 1999.

[18 to 22]. Amends the Act to facilitate the use of point to point camera systems for the detection and prosecution of offences under the Act. Point to point camera technology works by using two or more digital cameras that are placed at different points within the one speed zone on a road or roads. From this, it will be possible to calculate the average speed of a vehicle that passes both cameras and to determine whether the vehicle was driven within or in excess of the speed limit.

Where no offence is recorded, the system will delete the information. The process for detecting offences, and the cameras used by the point to point process, will be prescribed by regulations, as with existing traffic camera technology.

The Bill clarifies that such processes are not "tracking devices" for the purposes of the Surveillance Devices Act 1999.

The amendment extends the "owner onus" system to an offence that is detected by the point to point technology in the same way as an offence detected by a single camera device. An "owner" may avoid liability by nominating the actual driver, or by establishing that he or she could not reasonably have known who the driver was, or by establishing that the vehicle or number plates had been stolen.

New section 78(1) provides that the average speed of a motor vehicle between two points will be evidence of the speed of the vehicle and will be taken as proof of that speed unless there is contrary evidence of the actual speed of the vehicle. A driver may however be prosecuted for a higher penalty for say a single point camera speeding offence but not convicted of a specific speed offence and an average speed offence as introduced by this Bill.

[21]. Inserts a new section 84B into the Surveillance Devices Act 1999 to provide that a prescribed process (point to point camera systems) is not a "surveillance device" for the purposes of that Act. Also see Committee comment below clause 41.

[22]. Amends items 39, 39A, 49B and 49C of Schedule 2 to the Act. Schedule 2 sets out the matters about which section 95 of the Act authorises regulations to be made. The effect of the amendments is to enable the making of regulations that prescribe processes, as well as devices, for determining the speed of motor vehicles.

Heavy vehicles

[23 and 24]. Amends the provisions in the Act regarding heavy vehicles.

[23]. Amends sections 116, 117, 126 and 127 of the Act to provide for identification of uniformed police officers during inspections or searches.

[24]. Amends the power to make regulations concerning heavy vehicles in Schedule 2 to the Act permitting the Roads Corporation to take account of a speeding offence committed in another State or a Territory by a heavy vehicle which is registered in Victoria for the purposes of determining whether the registration of that heavy vehicle should be suspended or cancelled or to determine whether that heavy vehicle should be required to have a speed limiting device fitted or to demonstrate that its speed limiting device is operating properly.

[25]. Deals with the method of calculation of demerit points where a person holds a learner permit or probationary driver licence.

[26]. Inserts a new section 103D into the Act to provide that the amendments made by clause 7 to section 16E of the Act apply to an entry on the register of written-off vehicles, whether the entry was made before, on or after the commencement of clause 7. Section 16E of the Act as in force immediately before the commencement of clause 7 will continue to apply with respect to any appeal made under section 16E before that date.

Amendments to the Transport Act 1983

[28 to 33]. Amendments are made consistent with the breath analysis amendments made by this Bill to the Road Safety Act 1986.

Amendment to the Marine Act 1988

[34 to 39[. Amendments are made consistent with the breath analysis amendments made by this Bill to the Road Safety Act 1986.

Amendment to the Melbourne City Link Act 1995

[40]. Inserts a new sub-section (2) to provide that the tolling system is not a surveillance device within the meaning of the Surveillance Devices Act 1999.

[41]. Amends section 87 which deals with the circumstances in which the owner of a vehicle is liable for a camera detected offence of driving an unregistered vehicle in a toll zone.

The Committee makes no further comment.

State Taxation Acts (Further Miscellaneous Amendments)Bill

Introduced: 14 October 2003
Second Reading Speech: 16 October 2003
House: Legislative Assembly
Minister introducing Bill: Hon. John Brumby MLA
Portfolio responsibility: Treasurer

Purpose

This Bill amends the Duties Act 2000, the Taxation Administration Act 1997 and the Land Tax Act 1958.

The Bill introduces a number of amendments to the First Home Owner Grant Act 2000 to clarify the time when the eligibility criteria must be met, that certain applicants with previous interests in property are ineligible for the grant, and that the grant is available where the home buyer gains a relevant interest as a nominee under a purchase contract and provides valuable consideration.

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill (other than Part 2 and Division 1 of Part 5) come into operation on the day after Royal Assent.

Part 2 (other than section 3) and Division 1 of Part 5 will come into operation on 1 January 2004.

Section 3 is deemed to have come into effect on 16 August 2003.

Duties Act 2000

Part 2 of the Bill removes the concession currently available in respect of mortgage duty payable on advances under mortgage-backed debentures, in order to prevent the use of this concession as a means of avoiding duty where debentures issued outside of Victoria are secured by mortgages over property in Victoria.

Taxation Administration Act 1997

Part 3 of the Bill makes 2 amendments to the Act relating to disclosure of information to particular persons and objections to reassessments of tax.

[7]. Inserts new sub-paragraphs (va) and (vb) into section 92(e) of the Act to allow the Commissioner to disclose information to the Director of Fair Trading and to a member of the Australian Federal Police. Taxation investigations may reveal consumer protection issues that are outside the Commissioner's jurisdiction, but where the public interest requires further investigation. Similarly the Commissioner receives requests for information from the Australian Federal Police from time to time. The Commissioner is currently permitted to disclose information to the Victorian Police and this amendment will permit disclosure to the Federal Police.

Land Tax Act 1958

Part 4 of the Bill makes three amendments to definitions in the Act and clarifies the scope of two exemptions from land tax.

First Home Owner Grant Act 2000

Part 5 of the Bill makes a number of amendments to the Act and provides for a grant of $7000 to be paid to first home owners who enter into eligible transactions (a term defined in the Act) to buy or build a first home.

[15]. Substitutes a new section 8 to require an applicant to be a natural person and to be at least 18 years of age.

Section 8(2)(a) provides that the Commissioner may exempt an applicant from the requirement to be 18 years of age if satisfied that the home to which the application relates will be occupied by the applicant as his or her principal place of residence for a continuous period of at least 6 months commencing within the 12 month period immediately after completion of the eligible transaction or within a longer period approved by the Commissioner, and if satisfied that the application does not form part of a scheme to circumvent limitations on, or requirements affecting, eligibility for or entitlement to, a first home owner grant.

[18]. Inserts a new section 12 to impose a 6 month continuous residence requirement as an eligibility criterion for the grant. Section 12(2) provides that the Commissioner may reduce the 6 month period if there are good reasons why an applicant cannot comply with it. The Commissioner is not empowered to permit a complete waiver of the residence requirement.

The Committee makes no further comment.

Transport (Rights and Responsibilities) Bill

Introduced: 7 October 2003
Second Reading Speech: 8 October 2003
House: Legislative Assembly
Minister introducing Bill: Hon. Peter Batchelor MLA
Portfolio responsibility: Minister for Transport

Purpose

The Bill amends the Transport Act 1983 (the ‘Act’) to —

• enable the Secretary to the Department of Infrastructure to conduct inquiries in relation to any accident or incident involving any rail infrastructure or rolling stock for purposes relating to public safety; and

• further regulate the transfer and assignment of taxi-cab licences; and

• enable the payment of administrative costs to passenger transport and bus companies in relation to specified ticket infringements; and

• enable the imposition of graduated penalties for transport and ticket infringements; and

• enable authorised officers to inspect tickets and evidence of ticket concession entitlements after a public transport journey has been completed; and

• streamline provisions dealing with authorised officers; and

• amend the Road Safety Act 1986 to enable authorised officers under the Transport Act 1983 to take action in relation to certain parking infringements in respect of vehicles in any rail car parks.

Submission

The Committee received a submission from the Office of the Victorian Privacy Commissioner, Mr Paul Chadwick. The submission appears in Appendix 6.

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill (other than clause 6) will commence operation on the day after Royal Assent. Clause 6 (unauthorised people not to trade in taxi-cab licences) will commence on a day to be proclaimed but not later than 30 December 2004.

[3]. Inserts a new section 129UA in the Act providing that the Secretary may inquire into any accident or incident involving any rail infrastructure or rolling stock for the purpose of determining whether a risk to public safety exists or what factors contributed to an accident or incident. The clause also includes a new section 129UB, providing the Secretary with the power to publicly release the report or any findings, interim findings or recommendations arising from the inquiry—if it is considered in the public interest to do so and is not likely to prejudice the rights of a person in any criminal proceedings in connection with the matter.

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

The Bill also provides a power for the Secretary of the Department of Infrastructure to investigate a rail incident or accident or to inquire into any adverse trend in the industry. Under the current provisions the powers of investigation may only be exercised by the minister and only with regard to an accident or incident, although it is the secretary who has legislative responsibility for rail safety in Victoria. The new provision will allow the secretary to conduct an investigation where the minister has not directed an investigation into a particular incident or accident and also to investigate an apparent trend of concern for public transport safety generally.

[4]. Inserts a new section 143D in the Act to provide the licensing authority with the ability to impose a condition on a taxi-cab licence that the licence may not be transferred or assigned at all or that it may not be transferred or assigned for a specific period.

[6]. Inserts a new section 150A in the Act to prohibit a person from trading in taxi-cab licences unless authorised to do so under the relevant regulations.

[7]. Inserts an additional regulation-making power in section 162(1) of the Act to allow regulations to be made governing the sale of taxi-cab licences through an accredited broker.

[11]. Provides additional regulation-making powers governing the payment of administrative costs to a passenger transport or bus company in respect of relevant ticket infringements.

[13]. Introduces a new section 221AA into the Act to clarify the power of an authorised officer or police officer to require a person to produce a ticket for inspection after the person has left a public transport passenger vehicle or railway station; and where a concessional fare has been claimed, evidence of the person's entitlement to the concession.

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

The power to inspect tickets after a journey on public transport is one which, until the recent Supreme Court decision, has always been exercised by authorised officers as a vital part of ticket inspection procedures. The amendment will provide a clear power to enable authorised officers to inspect tickets at railway stations and at bus or tram stops. However, in order to allay any concerns about the scope of the power and the manner in which it is exercised, the public transport operators have agreed to implement a uniform code of conduct for authorised officers. The code of conduct will require authorised officers to exercise their power to inspect a ticket in a fair and reasonable manner, and compliance with the code will be monitored by the Department of Infrastructure to ensure that it meets prescribed standards.

[15]. Introduces a number of amendments to Part VII of the Act to replace the term "authorised person" with "authorised officer" and to simplify the various definitions currently in different sections of Part VII by inserting a single definition of "authorised officer" into section 208.

To implement recommendations of the Victorian Parliament's Law Reform Committee report on the powers of entry, search, seizure and questioning by authorised persons, the Bill introduces amendments to remove the confusion arising from the use of the two terms 'authorised person' and 'authorised officer' in the Transport Act 1983. These provisions do not make any substantive changes to the powers of authorised officers but contain a single definition for a person authorised for public transport enforcement purposes and one clear process for the authorisation of such officers.

The Parliament's Law Reform Committee report also recommended that the power to arrest or to detain an offender be clarified. The amendment contained in the Bill eliminates confusion by removing the concept of detention while retaining a clear power of arrest. The power to request a person making a public transport journey to produce a ticket for inspection requires the person to produce their ticket, and a specific power to detain the person is not necessary.

The amendment will bring these provisions in the Transport Act 1983 into line with other similar legislative provisions. Again, the purpose of the amendment is not to change the existing substantive powers exercised by authorised officers but merely to set out the powers more clearly and make the legislation easier to understand.

Amendments to the Road Safety Act 1986

[25]. Inserts a new section 87(1AD) into the Act to provide that an authorised person may upon believing that a parking infringement has been committed in any rail car park controlled by the passenger transport company by which the person is employed, serve a parking infringement notice.

The Committee makes no further comment.

The Committee makes no further comment.

Unclaimed Moneys (Amendment) Bill

Introduced: 14 October 2003
Second Reading Speech: 16 October 2003
House: Legislative Assembly
Minister introducing Bill: Hon. John Brumby MLA
Portfolio responsibility: Treasurer

Purpose

The Bill amends the Unclaimed Moneys Act 1962 (the ‘Act’) to —

• clarify the purpose of that Act;

• clarify and improve the powers of the Registrar of Unclaimed Moneys—

  (i) with respect to the collection of, and publication of details regarding, unclaimed moneys;

(ii) to inspect businesses which hold unclaimed moneys and trustees who hold unclaimed trust property;

• modernise the process for businesses to advertise unclaimed moneys and to lodge the money and details of it with the Registrar;

• clarify the Registrar's power to publish information regarding unclaimed superannuation benefits.

Submission

The Committee received a late submission from the Office of the Victorian Privacy Commissioner, Mr Paul Chadwick. The submission appears in Appendix 7.

Content and Committee comment

[Clauses]

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

[5]. Inserts a new section 8A in Part 3 of the Act which sets out the purpose of that Part: to ensure businesses and trustees deal properly with unclaimed moneys and property, to provide for the Registrar to publish details of unclaimed moneys and to provide for the inspection of businesses and trustees to ensure compliance.

[7]. Substitutes new sections 11 and 12 and inserts new sections 12A and 12B in the Act. New section 11 clarifies and modernises the requirements of businesses to keep a register and advertise details of unclaimed moneys. The business may deduct reasonable expenses for holding unclaimed moneys and locating owners.

Information privacy

Section 12B(3) allows the Registrar to disclose any information contained in the register that is considered appropriate for the purposes of Part 3 of the Act.

The Committee notes this extract from the Explanatory Memorandum –

The intention is that this wide discretion, to advertise or publish collected information, will be exercised in accordance with the standards contained in the Information Privacy Principles that comprise Schedule 1 of the Information Privacy Act 2000.

[8]. Substitutes new section 13 in the Act to broaden the Registrar's powers of inspection of not only businesses, but also trustees. New section 13(1) requires that the inspection powers are only to be used for determining compliance with Part 3 and only during normal business hours. Section 13(2) re-enacts current section 13(2), which requires a person to sign a declaration of secrecy before exercising inspection powers. Section 13(3) requires that an authorised person must produce written authorisation before exercising inspection powers or when asked to produce the authorisation. New section 13(5) provides for the qualifications for the appointment of authorised persons.

[11]. Inserts new sections 15A to 15D in the Act. New section 15A exempts a trustee from any breach of trust for any action in accordance with Part 3 of the Act. New section 15B includes details of the offences and the penalties under Part 3. New section 15D inserts a transitional provision to ensure that the amendments in the Bill do not affect liabilities that arose before their commencement.

Information privacy

[13]. Inserts a new section 22(4) in the Act to permit the Registrar to disclose any information relating to unclaimed superannuation benefits contained in the register that is considered appropriate for the purposes of Part 4.

The Committee notes this extract from the Explanatory Memorandum –

It is intended that this wide discretion, to advertise or publish collected information, will be exercised in accordance with the standards contained in the Information Privacy Principles that comprise Schedule 1 of the Information Privacy Act 2000.

The Committee makes no further comment.

Victorian Curriculum and Assessment Authority (Amendment) Bill

Introduced: 14 October 2003
Second Reading Speech: 15 October 2003
House: Legislative Assembly
Minister introducing Bill: Hon. Lynne Kosky MLA
Portfolio responsibility: Minister for Education and Training

Purpose

The Bill amends the Victorian Curriculum and Assessment Authority Act 2000 (the ‘Act’) to provide a process to deal with alleged contraventions by students of the Victorian Curriculum Authority’s (VCAA) examination rules and assessment rules.

Content and Committee comment

[Clauses]

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

[8]. Amends section 12 of the Act to provide for the appointment of persons who are not members of the VCAA (approved by the Minister) to committees and the establishment of review committees (to be chaired by a member of the Authority) to conduct investigations as well as outlining the requirements for membership and remuneration of review committee members.

[9]. Inserts a new "Part 3—Assessment Review" into the Act and deals with the investigation of contraventions of the examination rules of the Authority and allegations that a student’s assessment by the Authority was obtained by fraudulent, illegal or unfair means. The investigation is to be carried out by a review committee of the VCAA.

The Authority may nominate a person to interview any student enrolled in an accredited course. The student must be given written notice of the interview, including the particulars of the matter under investigation. The Authority may decide to proceed to a review committee hearing. The student’s assessment may be withheld pending a review committee hearing. A review committee may summons and cross-examine witnesses.

The review committee is bound by the rules of natural justice but is not bound by the strict rules of evidence. The Authority may conduct its proceedings with as little technicality as the requirements of the Act allow. Legal representation is permitted. A student may appeal a decision of a school or of a review committee to the Authority.

[10]. Inserts new section 20A into the Act to provide that all student assessments provided to, or calculated by, the VCAA on or after 1 October 2003 will be subject to the procedures established by the Bill. The procedures established by the Bill will apply to all decisions by schools and penalties imposed for contravention of the Authority's assessment rules where the decision is made and penalty imposed on or after the commencement of the Bill or before that commencement, if the student's appeal has not yet been heard.

The Committee makes no further comment.

Committee Room
27 October 2003

Scrutiny of Acts and Regulations Committee
© Parliament of Victoria